Part I.
Texas Department of Human Services
Chapter 19.
Nursing Facility Requirements for Licensure and Medicaid Certification
Subchapter Y. Medical Review and Re-evaluation
40 TAC §19.2409
The Texas Department of Human Services (DHS) adopts an amendment
to §19.2409 without changes to the proposed text published in the November
8, 1996, issue of the
Texas Register
(21
TexReg 10978).
Justification for the amendment is to target individuals who may be at
risk for institutionalization, ensuring proper allocation of resources to
the neediest individuals.
The amendment will function by ensuring proper allocation of resources
to the neediest individuals by incorporating the nursing facility risk criteria
specified in the Resident Assessment Instrument Home Care Assessment. The
risk criteria include prior nursing facility placement, functional deficits
in the activities of daily living, certain neurological diagnoses, urinary
incontinence, recent falls, and significant functional decline.
DHS is adopting similar policy changes in Chapters 15 and 48 of this title.
No comments were received regarding adoption of the amendment.
The amendment is adopted under the Human Resources Code, Title
2, Chapters 22 and 32, which authorizes the department to administer public
and medical assistance programs; and under Texas Government Code, §531.021,
which provides the Health and Human Services Commission with the authority
to administer federal medical assistance funds.
The amendment implements the Human Resources Code, §§22.001-22.030
and §§32.001-32.042.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Issued in Austin, Texas, on January 2, 1997.
TRD-9700012
Glenn Scott
General Counsel, Legal Services
Texas Department of Human Services
Effective date: February 1, 1997
Proposal publication date: November 18, 1996
For further information, please call: (512) 438-3765
1915(c) Medicaid Home and Community-based Waiver Services for Aged and
Disable Adults Who Meet Criteria for Alternatives to Nursing Facility Care
40 TAC §48.6003
The Texas Department of Human Services (DHS) adopts an amendment
to §48.6003 with changes to the proposed text published in the November
8, 1996, issue of the
Texas Register
(21
TexReg 10979).
Justification of the amendment is to target individuals who may be at risk
for institutionalization, ensuring proper allocation of resources to the
neediest individuals.
The amendment will function by ensuring proper allocation of resources
to the neediest individuals by incorporating the nursing facility risk criteria
specified in the Resident Assessment Instrument Home Care Assessment. The
risk criteria include prior nursing facility placement, functional deficits
in the activities of daily living, certain neurological diagnoses, urinary
incontinence, recent falls, and significant functional decline.
DHS is adopting similar policy changes in Chapters 15 and 19 of this title.
The department received no comments regarding adoption of the amendments.
However, in §48.6003(e) subsection (a)(9) was corrected to read subsection
(a)(10).
The amendment is adopted under the Human Resources Code, Title
2, Chapters 22 and 32, which authorizes the department to administer public
and medical assistance programs; and under Texas Government Code, §531.021,
which provides the Health and Human Services Commission with the authority
to administer federal medical assistance funds.
The amendment implements the Human Resources Code, §§22.001-22.030
and §§32.001-32.042.
§48.6003.Client Eligibility Criteria.
(a)
To be determined eligible by the Texas Department of Human
Services (DHS) for the 1915(c) Medicaid waiver program provided as an alternative
to care in a nursing facility, an applicant must:
(1)-(9)
(No change.)
(10)
meet two or more of the criteria for nursing home
risk, as specified in the Resident Assessment Instrument-Home Care Assessment
for Nursing Home Risk as revised in April 1996 and summarized as follows:
(A)
needs assistance with one or more of the activities of
dressing, personal hygiene, eating, toilet use, or bathing;
(B)
has a functional decline in the past 90 days;
(C)
has a history of a fall two or more times in past 180
days;
(D)
has a neurological diagnosis of Alzheimer's, Head Trauma,
Multiple Sclerosis, Parkinsonism, or Dementia;
(E)
has a history of nursing facility placement within the
last five years;
(F)
has multiple episodes of urine incontinence daily; and
(G)
goes out of one's residence one or fewer days a week.
(b)-(c)
(No change.)
(d)
The nursing facility risk criteria will be applied at the
time of the first annual re- assessment for current Community Based Alternatives
Program participants and at the time of initial enrollment for all new applicants.
(e)
Individuals transferring from a nursing facility or the
Medically Dependent Children's Program are exempt from subsection (a)(10)
of this section.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Issued in Austin, Texas, on January 2, 1997.
TRD-9700011
Glenn Scott
General Counsel, Legal Services
Texas Department of Human Services
Effective date: February 1, 1997
Proposal publication date: November 18, 1996
For further information, please call: (512) 438-3765
Chapter 159.
Administrative Rules and Procedures
The Texas Commission for the Blind adopts the repeal of §159.12
of Chapter 159 and concurrently adopts new §159.12, concerning charges
for copies of public information, without changes to the proposed text published
in the November 29, 1996, issue of the
Texas Register
(21 TexReg 11579).
The new section will serve as the Commission's rules for responding to
requests for public information and conform to updated rates adopted by the
General Services Commission pursuant to House Bill 1718, 74th Legislature,
Regular Session (1995) with respect to the charges for public information
and procedures for filing complaints regarding overcharges or overpayment.
The Commission received no comments regarding the proposed repeal and
new section.
Procedures of the Commission
40 TAC §159.12
The repeal is adopted under the Human Resources Code, Title
5, Chapter 91, which authorizes the commission to adopt rules prescribing
the policies and procedures followed by the commission in the administration
of its programs.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Issued in Austin, Texas, on January 2, 1997.
TRD-9700042
Pat D. Westbrook
Executive Director
Texas Commission for the Blind
Effective date: January 23, 1997
Proposal publication date: November 29, 1996
For further information, please call: (512) 459-2611
The new section is adopted under the
Human Resources Code, Title 5, Chapter 91, which authorizes the commission
to adopt rules prescribing the policies and procedures followed by the commission
in the administration of its programs.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Issued in Austin, Texas, on January 2, 1997.
TRD-9700363
Pat D. Westbrook
Executive Director
Texas Commission for the Blind
Effective date: January 23, 1997
Proposal publication date: November 29, 1996
For further information, please call: (512) 459-2611
The Texas Commission for the Blind adopts new chapter 164, §§164.1-164.4,
164.10-164.15, 164.25, 164.26, 164.30-164.32, 164.40-164.46, and 164.55,
concerning its Independent Living Program, without changes to the proposed
text published in the November 29, 1996, issue of the
Texas Register
(21 TexReg 11579-11584).
The chapter will serve as the Commission's rules for administering a program
that provides independent living services to eligible persons who are blind
or severely visually impaired. Sections 164.1-164.4 explain the purpose of
the program, define terms used in the delivery of services; and set forth
the procedures by which persons may appeal decisions made during the agency's
administration of the program. Sections 164.10-164.15 describe application
procedures, criteria used in determining eligibility and ineligibility, circumstances
under which cases are closed, and plans of services. Sections 164.25-164.26
set forth the conditions under which the Commission purchases goods and services
for eligible persons and reimburses transportation expenses. Sections 164.30-164.32
provide for an order of selection that may be used in times of limited funding.
The order places first priority, when funds are inadequate to serve all eligible
individuals, on persons in targeted service areas who are not presently receiving
vocational rehabilitation services because of the severity of their disabilities.
Sections 164.40-164.46 establish consumer participation in certain service
costs and set forth the procedures for determining the amount of required
participation. Section 164.55 specifies that the Commission sets a maximum
on the amount it pays for certain services.
The agency received no comments regarding the proposed new sections.
Subchapter A. General Information
40 TAC §§164.1-164.4
The new sections are adopted under the Human Resources Code,
Title 5, Chapter 91, §91.011(g), which authorizes the commission to
adopt rules prescribing the policies and procedures followed by the commission
in the administration of its programs.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Issued in Austin, Texas, on January 2, 1997.
TRD-9700048
Pat D. Westbrook
Executive Director
Texas Commission for the Blind
Effective date: January 23, 1997
Proposal publication date: November 29, 1996
For further information, please call: (512) 459-2611
40 TAC §§164.10-164.15
The new sections are adopted under the Human Resources Code,
Title 5, Chapter 91, §91.011(g), which authorizes the commission to
adopt rules prescribing the policies and procedures followed by the commission
in the administration of its programs.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Issued in Austin, Texas, on January 2, 1997.
TRD-9700047
Pat D. Westbrook
Executive Director
Texas Commission for the Blind
Effective date: January 23, 1997
Proposal publication date: November 29, 1996
For further information, please call: (512) 459-2611
40 TAC §164.25, §164.26
The new sections are adopted under the Human Resources Code,
Title 5, Chapter 91, §91.011(g), which authorizes the commission to
adopt rules prescribing the policies and procedures followed by the commission
in the administration of its programs.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Issued in Austin, Texas, on January 2, 1997.
TRD-9700051
Pat D. Westbrook
Executive Director
Texas Commission for the Blind
Effective date: January 23, 1997
Proposal publication date: November 29, 1996
For further information, please call: (512) 459-2611
40 TAC §§164.30-164.32
The new sections are adopted under the Human Resources Code,
Title 5, Chapter 91, §91.011(g), which authorizes the commission to
adopt rules prescribing the policies and procedures followed by the commission
in the administration of its programs.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Issued in Austin, Texas, on January 2, 1997.
TRD-9700046
Pat D. Westbrook
Executive Director
Texas Commission for the Blind
Effective date: January 23, 1997
Proposal publication date: November 29, 1996
For further information, please call: (512) 459-2611
40 TAC §§164.40-164.46
The new sections are adopted under the Human Resources Code,
Title 5, Chapter 91, §91.011(g), which authorizes the commission to
adopt rules prescribing the policies and procedures followed by the commission
in the administration of its programs.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Issued in Austin, Texas, on January 2, 1997.
TRD-9700045
Pat D. Westbrook
Executive Director
Texas Commission for the Blind
Effective date: January 23, 1997
Proposal publication date: November 29, 1996
For further information, please call: (512) 459-2611
40 TAC §164.55
The new section is adopted under the Human Resources Code,
Title 5, Chapter 91, §91.011(g), which authorizes the commission to
adopt rules prescribing the policies and procedures followed by the commission
in the administration of its programs.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Issued in Austin, Texas, on January 2, 1997.
TRD-9700050
Pat D. Westbrook
Executive Director
Texas Commission for the Blind
Effective date: January 23, 1997
Proposal publication date: November 29, 1996
For further information, please call: (512) 459-2611
40 TAC §172.2, §172.3
The Texas Commission for the Blind adopts amendments to §172.2,
concerning mandated advisory committees and §172.3, concerning committees
and councils established by the agency's board, without changes to the proposed
text published in the November 29, 1996, issue of the
Texas Register
(21 TexReg 11585).
The amendments are adopted to amend the composition of the Consumer Advisory
Committee and to create Regional Advisory Committees to assure that the Commission
considers the views of a wider group of consumers in policy formulation and
program innovation.
The Commission received no comments regarding the proposed amendments.
The amendments are adopted under the Human Resources Code, Title
5, Chapter 91, §91.011(g), which authorizes the commission to adopt
rules prescribing the policies and procedures followed by the commission
in the administration of its programs.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Issued in Austin, Texas, on January 2, 1997.
TRD-9700049
Pat D. Westbrook
Executive Director
Texas Commission for the Blind
Effective date: January 23, 1997
Proposal publication date: November 29, 1996
For further information, please call: (512) 459-2611
Chapter 260.
Area Agency on Aging Administrative Requirements
40 TAC §260.1, §260.2
The Texas Department on Aging adopts amendments §260.1
and §260.2, concerning the administrative and fiscal responsibilities
of area agencies on aging. Section 260.1 is adopted without changes to the
proposed text as published in the July 26, 1996, issue of the
Texas
Register
(21 TexReg 7027) and will not be republished. Section 260.2
is adopted with non-substantive changes to the proposed text as published
in the September 17, 1996, issue of the
Texas Register
(21 TexReg
8920).
The amendments were adopted in order to allow the department to establish
guidelines relating to the administrative and fiscal responsibilities of
area agencies on aging when contracting for services and goods to be purchased
for participants in Older Americans Act Programs.
The amended sections provide new procedures and policies for contractors/area
agencies to better document and demonstrate accountability and compliance
for the administration and management of Older Americans Act programs in
the State of Texas and implement reimbursement methodologies which will enhance
contract management and the level of services which may be delivered.
Non-substantive changes to §260.2 were made throughout the rule to
clarify language and terminology and in response to comments received from
the Office of the Attorney General, the Area Agency on Aging of East Texas,
Houston/Harris County Area Agency on Aging, department staff and the Texas
Board on Aging. No comments were received regarding the adoption of §260.1.
A summary of the comments relating to §260.2, the department's responses,
and the location of the changes are as follows:
Comment: A recommendation was received to delete the words "service provider"
wherever they appear after the word "subcontractor" to improve clarity and
provide consistency throughout the rule.
Agency Response: The Department concurs and has made the appropriate changes
under subsections (a)(1)(C), (b)(4) and (f)(2)(B)(i)(I)&(II).
Comment: One commentor asked if subsection (a)(2)(C), relating to purchases
should require compliance with criteria in subparagraph (A) as well as with
subparagraph (B).
Agency Response: The Department agrees and has modified the text to reflect
compliance with subparagraph (A).
Comment: Comments were received suggesting that new subparagraphs be added
after subparagraph (3)(D) of subsection (a) to establish guidelines for the
recapture of payments for disallowed costs or for funds received in excess
of those actually earned and for the procedures for area agency contractor
to appeal a disallowance issued by the Department.
Agency Response: The Department has reviewed and accepts the recommendation
and has added new subparagraphs (E), (F) and (G) in subsection (a) relating
to the recapture of payments and the appeal procedures for area agency on
aging contractors.
Comment: One commenter expressed concern that this rule imposes a 30-day
deadline to issue a letter of disallowance and unnecessarily places time
limits on the Department.
Agency Response: The Department agrees and has modified the text of subsection
(a)(3)(D) to allow 60 days for the Department to issue a notification of
disallowance.
Comment: One commenter expressed concern that the language in subsection
(b)(4) of this rule is conflicting regarding the rule's applicability to
"for-profit" service providers.
Agency Response: The Department concurs and has modified the text to improve
the clarity.
Comment: One commenter suggested that subsection (b)(5) seems to be repetitive
of subsection (a)(3)(D).
Agency Response: The Department does not concur but has modified the text
to allow 60 calendar days following the failure to resolve of all questioned
costs for the Department to issue a Letter of Notification of Disallowance
with Intent to Recover Costs.
Comment: In subsection (b)(6), a commenter suggested the need for clarification
on whether this rule applies to the failure of the Area Agency Contractor
or the failure of the Subcontractor to provide an acceptable independent
audit. In addition, reference in the rule to "receipt of an audit subsequent
to
that limitation
," the commenter suggested that a more appropriate
term would be "expiration of the time frame," "the deadline," or some other
more specific word.
Agency Response: The Department has modified the text for improved clarification
and to correctly reference paragraph (5) of this subsection, relating to
the recovery of questioned costs.
Comment: One commenter asked what is the definition of "reasonably prudent
judgement?" in subsection (c) and suggested that a more universally accepted
term is either "acting in good faith" or "a good faith effort."
Agency Response: The term "reasonable prudent judgement" is used in the
federal assurance and would already generally be interpreted to mean "a good
faith effort." However, the text has been modified to read as " . . .knowlingly
deal with any person. . ." for improved understanding.
Comment: Comments were received recommending that the words "area agency"
be added before the word "contractor" throughout the rule for improved clarity
and consistency.
Agency Response: The Department concurs and has amended the text accordingly
in rule to specify that the term "contractor" is referring to the area agency's
contractor in subsections (a)(B)(C), (b)(1) , (c)(1)(2) (3), (d)(3)(B)and
(e)(1)(A)(B).
Comment: One commenter noted that in (c)(1) the cite to 48 CFR Part 942
concerns contract rules of the Department of Energy.
Agency Response: The Department concurs and has modified the text to correctly
cite 45 CFR, Part 1229, concerning Government wide Debarment and Suspension
(Non-procurement) and Government wide Requirements for Drug-Free Workplace
(Grants).
Comment: A commenter asked for clarification regarding when a contractor
is required to submit its Certification Regarding Debarment, Suspension,
Ineligibility and Voluntary Exclusion for Covered Contracts and Grants. In
addition, the commenter wanted to know if there would be consequences for
failure to submit a timely certification.
Agency Response: The Department concurs and has modified the text of subsection
(c)(3) to allow any Certification to be submitted as part of the area plan
amendment.
Comment: Another commentor questioned regarding the debarment statement
in subsection (c)(3), if contractors will be provided a list/roster of debarred
entities, persons, etc and will they have to read the Federal Register to
ascertain this information? Agency Response: The contractor has no obligation
to review lists or the Federal Register. The Contractor's obligation is to
obtain the certification. No further action is necessary unless the contractor
has knowledge that would create doubt as to its validity. No change to the
text is necessary.
Comment: One commenter asked for more definite guidelines for an amendment
based on the funding level for a service. The same commenter expressed concern
about whether it is feasible to do a budget amendment on a contract of $5,000
or less.
Agency Response: The Department concurs that it is reasonable to allow
some threshold for requiring a budget amendment. The text has been modified
in subsection (d)(2)(A) and a new subparagraph (d)(2)(D) has been added to
allow for an amended budget to be submitted when contracting for a previously
unbudgeted and unapproved service if the amount of funds provided through
the Department for the contract is greater than $5,000 or when contracting
for multiple, previously unbudgeted and unapproved services the contracts
exceed $15,000 in the aggregate.
Comment: The same commenter noted that if the requirement for an amended
budget in subsection (d)(2)(A) relative to "contracting for a previously
unbudgeted and unapproved service," that this circumstance may create a further
delay in the required Area Agency on Aging contracting process in order to
expedite the expenditure of funds. Will the Department be able to timely
review and approve budget amendments from all Area Agencies on an "as needed"
basis? When amendments are submitted to TDoA, contractors should have some
assurance from TDoA that a review and approval of the amendment will be within
at least ten working days.
Agency Response: In the event that a budget amendment is required because
of a change in scope, the Department will work diligently to complete the
approval process in an expeditious manner. Under normal circumstances this
should be within ten working days. There is no applicable change to the text
as published.
Comment: In addition, the same commenter asked for clarification regarding
the submission requirements for a budget amendment in subparagraphs (A)&(B)
of subsection (d)(3).
Agency Response: In the event that a budget amendment is required because
of a discontinuance of a services or a change in scope, the Department will
work diligently to complete the approval process in an expeditious manner.
Under normal circumstances this should be within ten working days. There
is no applicable change to the text as published relative to this comment.
Comment: A suggestion to add the word "fiscal" to subsection (e)(1)(A)and
(B) was received to clarify what type of reports and submissions the rule
is referring to.
Agency Response: The Department concurs and has modified the text accordingly.
Comment: A commenter suggested that in certain instances, such as when
a subcontractor is providing one of those services and another related service
for which cost reimbursement is the most satisfactory choice or when there
may be a situation with one provider which would demand special oversight,
or a pilot program involving coordination of multiple funding sources, there
should be an option to provide the service cost reimbursement with justification
and with controls and comparability to the approved unit rates.
Agency Response: The Department concurs and has modified the text in subsection
(f)(2)(B) to indicate that the procurement methodologies are for all services
not covered under subsection (f)(2)(A), relating to specified rates.
Comment: A commenter recommended that the text be modified to correct a
mistake in wording in subsection (f)(2)(B)(i) to read as "The subcontractor
agrees to deliver . . ."
Agency Response: The Department concurs and has modified the text accordingly.
Comment: A commenter suggested that language in subsection (g)(2) should
be clarified to indicate that it is the area agency contractor who shall
not make a deduction to the amount paid to the subcontractor.
Agency Response: The Department concurs and has modified the text for clarification.
Comment: Comments were received recommending that the new proposed paragraph
(6) under subsection (h) be made a section by itself with some additional
modifications to the text.
Agency Response: The Department concurs and paragraph (6) under the previous
subsection (h) is now subsection (i). The text has been modified to correct
numbering, references to other subsections, and to replace references to
FY1991 with the term "base year."
The amended sections are adopted under the Human Resources Code,
Chapter 101, which provides the Texas Department on Aging with the authority
to promulgate rules governing the operation of the Department.
The Human Resources Code, Chapter 101, relating to the operation of the
Texas Department on Aging, is affected by this adopted action.
§260.1. Area Agency on Aging Administrative Responsibilities.
(a)
Background. The area agency on aging contractor shall develop
and maintain an organized and efficient administrative system which can document
and demonstrate accountability and compliance.
(b)
Definitions. The following words and terms, when used in
this chapter, shall have the following meanings, unless the context clearly
indicates otherwise. Definitions relating to targeted populations are as
outlined in the Older Americans Act, as amended, and the Americans with Disabilities
Act of 1990, as amended, or as defined below.
(1)
Access--All methods used to make information and assistance
available to potential inquirers and accessible to specialized populations.
(2)
Accessible--Without physical, cultural, language,
geographical, financial, or psychological barriers.
(3)
Activities of Daily Living (ADLs)--Tasks that are
essential to independent living such as bathing, dressing/undressing, eating,
toileting, continence, transfer in/out of bed or chair, and indoor mobility.
(4)
Advocacy--Actions by or on the behalf of individuals
and/or groups to ensure that they receive the benefits and services to which
they may be entitled, and to ensure that their rights guaranteed by law are
protected and enforced.
(5)
American Indian or Alaskan Native--A person having
origins in any of the original peoples of North America, and who maintain
cultural identification through tribal affiliation or community recognition.
(6)
Asian American/Pacific Islander--A person having origins
in any of the original peoples of the Far East, Southeast Asia, the Indian
Subcontinent, or the Pacific Islands, Samoa and the Hawaiian Islands.
(7)
Alzheimer's Disease--A progressive, degenerative disease
that attacks the brain and results in impaired memory, thinking, and behavior.
(8)
Benefits Counseling--Legal awareness or legal assistance
services that assist seniors in claiming the various kinds of benefits to
which they may be entitled. Activities may include legal or other assistance
in completion of insurance or application documents, and assistance with
problems with Social Security, Medicaid, pensions or other benefits.
(9)
Black--A person of African-American, not of Hispanic
origin.
(10)
Broker--Arranger of services.
(11)
Case Management--An ongoing process (also known as
service management), which includes assessment, service plan development,
arranging of comprehensive and unified services, follow-up, ongoing monitoring
of an individual's or family's status and the services delivered, and periodic
review, with any necessary revision of the service plan.
(12)
Case management unit of service--One unit of service
equals one hour. A unit is defined as that time which is spent by the caseworker,
or qualified designee, engaged in working on an eligible client case. A unit
does not include travel time, staff training, program publicity, or direct
client services other than case management. Travel time, staff training and
program publicity are allowable and reimbursable expenses.
(13)
Certified volunteer--An individual who has been selected
by a regional program to serve as an advocate for long-term care facility
residents and participate in the ombudsman program. Certified volunteers
shall successfully complete an internship, or equivalent experience, as determined
by the office, and complete required training prior to being certified and
prior to engaging in independent complaint resolution. A certified volunteer
shall be a representative of the office.
(14)
Classification system--A system which is used to
categorize available human services in a standard manner to simplify retrieval
of service information, increase the reliability of planning data, make evaluation
processes consistent, and facilitate comparisons of data.
(15)
Clients or recipients of services--Persons who reside
in settings defined as a long-term care facility in this subsection, and
their families.
(16)
Contractor--The performing agency in a contract with
the department. The word contractor when used in department rules, procedures,
or governing documents specified in §245.3 of this title (relating to
governing documents) is synonymous with grantee.
(17)
Current board member-A person presently a member
of the governing board of a contractor sponsoring an area agency on aging.
(18)
Current aging advisory committee member--A person
presently a member of the advisory committee for an area agency on aging.
(19)
Current employee--A person presently employed by
a contractor sponsoring an area agency on Aging.
(20)
Department--The Texas Department on Aging, the single
state agency for Older Americans Act programs.
(21)
Developmental disability--A severe, chronic disability
attributable to a mental or physical impairment, or combination of both that:
(A)
is manifested before age 22;
(B)
is likely to continue indefinitely;
(C)
results in substantial limitations in three or more of
the following areas of major life activity: self-care, receptive and expressive
language, learning, mobility, self-direction, capacity for independent living,
and economic self-sufficiency; and
(D)
results in the need for individually planned and coordinated
services lifelong or over an extended period of time.
(22)
Education and training--Providing the experience
and/or knowledge for clients to acquire skills, in a formal or informal,
individual or group, setting. In the Options program, this service is directed
to older persons and their care givers to help them improve their abilities
in responding to their health care needs and limitations in overall functioning
capacity.
(23)
Emergency Response System (ERS)--Services provided
to the homebound, frail elderly using an automatic monitoring system to link
them to emergency medical services when life and/or safety are in jeopardy.
These ERS services include the installation of the individual monitoring
unit, training associated with the use of the system, periodic checking to
assure that the unit is functioning properly, equipment maintenance calls,
response to an emergency call by a medical professional, paraprofessional
or volunteer, and follow-up with the client.
(24)
Follow up--Contacting by telephone, correspondence
or in person the inquirers and/or the agency to which referred, to verify
that linkage has been established between the inquirer and the agency to
which referred.
(25)
Former board member--A former member of the governing
board of a contractor sponsoring an area agency on aging whose last date
of service was within the immediately preceding two years.
(26)
Former aging advisory committee member--A former
member of an aging advisory committee whose last date of service was within
the immediately preceding two years.
(27)
Former employee--A former contractor or area agency
on aging employee whose last date of service was within the immediately preceding
two years.
(28)
Frail--An older person who:
(A)
is unable to perform at least two activities of daily living
without substantial human assistance, including verbal reminding, physical
cuing, or supervision; or
(B)
requires substantial supervision due to a cognitive or
other mental impairment and behaves in a manner that poses a serious health
or safety hazard to himself or others.
(29)
Friendly visitor--A volunteer who does not participate
in complaint resolution. Friendly visitors receive orientation and may receive
local training but do not receive certification.
(30)
Grantee--The performing agency in a contract with
the Department. The word grantee when used in Department rules, procedures,
or governing documents specified in §245.3, of this title (relating
to governing documents) is synonymous with contractor.
(31)
Hispanic--A person of Mexican, Puerto Rican, Cuban,
Central or South American or other Spanish culture or origin, regardless
of race.
(32)
Home delivered meals-Hot, cold, frozen, dried, canned
or supplemental food (with a satisfactory storage life) which provides a
minimum of one-third of the daily recommended dietary allowances (RDAs) as
established by the Food and Nutrition Board of the National Academy of Sciences-National
Research Council, and which is delivered to an eligible person in his/her
place of residence.
(33)
Homemaker services--Those tasks provided by trained
and supervised homemakers involving the performance of housekeeping/home
management, meal preparation and/or escort tasks, provided to individuals
who need assistance with these activities in their place of residence. The
objective is to help the recipient sustain independent living in a safe and
healthful environment.
(34)
Indirect--Having to do with a relative when considering
conflicts-of interest.
(35)
Information and assistance--Services which inform,
guide, direct and link individuals to appropriate human service resources.
This may include individual client screening and/or assessment, which is
a process of gathering and analyzing all pertinent information to identify
an individual's strengths and needs for the purpose of determining a plan
to assist the individual in the achievement of objectives and goals. (Used
interchangeably with the term information and referral).
(36)
Information giving--The process of providing basic
or detailed information about resources to an inquirer by a staff person.
(37)
Information and referral service--See information
and assistance.
(38)
Instrumental activities of daily living (IADLs)--Tasks
which may not need to be done every day (like ADLs), but which are nevertheless
important for living independently: meal preparation, housework, laundry,
shopping, taking medicines, getting around outside, transportation, money
management, and telephone use.
(39)
Inquirer--Any person or organization seeking assistance
from the system.
(40)
In service--A planned educational effort conducted
or coordinated by professional staff or certified volunteers.
(41)
Legal assistance--Advice and representation by an
attorney (including assistance by a paralegal or law student under the supervision
of an attorney), or counseling or representation by a non-lawyer where permitted
by law, to older individuals with economic and social needs. Legal assistance
activities include the following:
(A)
Advice/Counseling--a recommendation made to a client regarding
a course of conduct, or how to proceed in a matter, given either on a brief
or one-time basis, or on an ongoing basis, and given either in person or
by telephone.
(B)
Document preparation--personal assistance given to a client
which helps him in the preparation of necessary documents relating to public
entitlements, health care/long-term care, individual rights, planning/protection
options, and housing and consumer issues.
(C)
Representation--advocacy on behalf of a client in protesting
or complaining against a procedure, or seeking special considerations, appealing
an administrative decision, or representation by an attorney of a client
or class of clients in either the state or federal court systems.
(42)
Legal awareness--The dissemination of accurate,
timely and relevant information, eligibility criteria, requirements and procedures,
to older Texans about public entitlements, health/long-term are, individual
rights, planning/protection options, and housing and consumer issues.
(43)
Long-term care facility--A facility that is licensed
or regulated or that is required to be licensed or regulated by the Texas
Department of Human Services.
(44)
Low income--A level of income (as defined by the
federal Office of Management and Budget), below which a person or persons
is considered to be living in poverty.
(45)
Major life activities-functions such as:
(A)
Self care--daily activities which enable a person to meet
basic life needs for food, hygiene and appearance;
(B)
Receptive and expressive language-communication involving
verbal and/or non-verbal behavior enabling the individual to both understand
others and to express ideas/information to others;
(C)
Learning--ability to acquire new behaviors, perceptions
and information, and to apply experiences in new situations;
(D)
Mobility--ability to use fine and gross motor skills. Ability
to move one's person from one place to another with or without mechanical
aids;
(E)
Self direction-management and taking control over one's
social and personal life. Ability to make decisions affecting and protecting
one's own interests;
(F)
Capacity for independent living--ability to live without
extraordinary assistance from other persons, especially to maintain normal
societal roles;
(G)
Economic self sufficiency--absence of dependence on family
or public assistance for financial support;
(H)
Cognitive functioning-general cognitive competence; and
(I)
Emotional adjustment--self-esteem, self-confidence, and
emotionally stability.
(46)
Minority--A person in one or more of the following
four racial/ethnic groups: Black (African American, not of Hispanic origin),
Hispanic, Asian/Pacific Islander, and Native American.
(47)
Office--The Office of the State Long-Term Care Ombudsman,
a division of the Texas Department on Aging.
(48)
Ombudsman intern--A volunteer who has been admitted
to the regional training program as a potential certified volunteer ombudsman.
(49)
Outreach--Methods that seek to increase the availability
and utilization of services by ensuring that a particular individual or group
is aware of available services and encouraged to participate.
(50)
Personal assistance--Assisting another person with
tasks which that individual would typically do if they were able. This covers
hands-on assistance in all activities of daily living.
(51)
Professional--Refers to an individual who has obtained
a four year bachelors degree in aging related areas or human services, but
may include an individual who does not have a four year degree, but who has
qualifying experience as a substitute for a degree. Such substitution shall
be consistent with the employing entity's personnel policies.
(52)
Referral giving--Active participation in linking
the inquirer with needed services after assessing the inquirer's needs and
suggesting appropriate resources.
(53)
Regional program--A provider and its implementation
of these standards on a sub-state level. Regional programs are area agencies
on aging or other entities, as defined by the Board on Aging, Texas Department
on Aging.
(54)
Related disorders (dementia)--The loss of intellectual
functions (such as thinking, remembering, and reasoning), not caused by Alzheimer's
Disease, of sufficient severity to interfere with an older person's daily
functioning, including as listed in definition for Major life activities.
(55)
Relative--A current or former board member's or current
or former advisory committee member's or current or former employee's spouse,
father, mother, sister, brother, son or stepson, daughter or stepdaughter,
mother-in-law, father-in-law, sister-in-law, brother-in-law, son-in-law,
or daughter-in-law.
(56)
Residential repair--Services consist of repairs or
modifications of client occupied dwellings which are essential for the health
and safety of the occupants. This also includes providing limited housing
counseling and moving expenses where repairs or modifications will not attain
reasonable standards of health and safety.
(57)
Resource file--An organized, cross-indexed file of
information on services and programs in the area covered by the information
and assistance service.
(58)
Respite care-
(A)
In home respite care-an array of services provided to dependent
older persons who need supervision. Services are provided in the client's
home environment on a short-term, temporary basis while the primary care
giver is unavailable or needs relief. In addition to supervision, services
may include meal preparation, housekeeping, assistance with personal care
and/or social and recreational activities.
(B)
Institutional/facility based respite care--an array of
services provided in a congregate or residential setting (hospital, nursing
home, adult day care center) to dependent older persons who need supervision.
Services are offered on a short-term, temporary basis while the primary care
giver is unavailable or needs relief. In addition to supervision, services
may include, when appropriate, meals, social/recreational activities, personal
care, monitoring of health status, medical procedures, and/or transportation.
(59)
Rural--Any county outside an identified metropolitan
statistical area (MSA).
(60)
Service authorization--A process which includes determining
eligibility for service(s), and using direct purchase of service (DPS) procedures
to obtain and initiate one or more services.
(61)
Staff ombudsman--The professional staff person at
the regional level who directs ombudsman program activities. The staff ombudsman
shall be appointed by the regional program and so designated by the Executive
Director, Texas Department on Aging, and under state law shall be granted
access to long term care facility resident records. The staff ombudsman shall
be a representative of the office.
(62)
State ombudsman--The person designated by the Executive
Director, Texas Department on Aging, as Chief Administrator of the Office
of the State Long-Term Care Ombudsman. The state ombudsman is accountable
to the Executive Director, Texas Department on Aging, for program and personnel
matters.
(63)
Subcontractor--the performing agency in a contract
with the contractor/area agency. The word subrecipient when used in department
rules, procedures, or governing documents specified in §254.3, relating
to governing documents, is synonymous with subcontractor.
(64)
Substantial financial interest--Ownership or control
by a former employee (or relative) or a former board member (or relative)
or former advisory committee member (or relative) of 10% or more of the contracting
firm or its stock or an investment of $2,500 or more in the organization,
whichever is less; or receipt of a 25% or more increase in overall annual
benefits, including salary or wages, upon employment by a contractor who
receives 25% of its funds from aging contracts of a former employee who held
one of the positions listed under the definition of "substantial involvement
in the development of the contract," as compared to the employee's contractor
salary and benefits.
(65)
Substantial involvement in the development of the
contract--Direct or indirect participation by a former employee or a former
board member of former advisory committee member in the development of program
policy which influenced the type of services provided by the contracting
organization. The following positions are assumed to have had such participation:
board member, executive director, aging division director, and aging contract
specialists.
(66)
Targeting--The focusing of service provision efforts
on those populations identified in the Older Americans Act of 1965, §306(a)(5)(B)(i),
as amended.
(67)
Units of service for legal assistance and legal awareness--One
unit of legal assistance shall equal one hour. One unit of legal awareness
shall equal one contact.
(c)
Structure.
(1)
Area agencies shall develop and maintain an organizational
structure which shall effectively administer Older Americans Act Programs
and responsibilities and achieve those outcomes prescribed in the Older Americans
Act, §306.
(2)
The organizational structure shall be reflected through
job descriptions, staffing plans, and organizational charts and be included
in the area plan submitted in accordance with submission requirements established
by the Department.
(d)
Titles. Each individual selected to perform the duties
of the full time director shall be identified on the staffing pattern and
in job descriptions as either director, area agency on aging, or as manager,
area agency on aging.
(e)
Compensation. Area Agency on Aging Directors and Managers
shall be budgeted based on time spent performing the duties of administration
and management, and the time spent in direct service delivery as indicated
in the approved area plan, and will be subject to approval on an individual
basis by the Department.
(f)
Records. The area agency contractor's provisions for development
and maintenance of records shall include the following:
(1)
The area agency contractor shall establish written procedures
to adequately assure proper development, maintenance and retention of all
financial records, supporting documents, statistical records, and all other
records relating to its performance.
(2)
All of the records identified in subsection (f)(1)
of this section shall be kept at the area agency site and shall be maintained
for a minimum period of five years following the end of the contractor's
fiscal year and until any pending litigation, claim or audit findings, issuance
of proposed disallowed costs, or other disputes have been resolved. Multi-site
area agencies may maintain all records at a designated central location.
(3)
The area agency contractor shall require that subcontractor/service
providers adhere to subsection (f)(1) and (2) of this section, as applicable.
It is not required that subcontractor service provider's records be kept
at the area agency on aging.
(4)
The area agency contractor shall give the Department,
the Comptroller General of the United States, and the State of Texas through
any authorized representatives, the access to and right to examine all records,
books, papers, contracts, client records, unless specifically prohibited
by law, or other documents related to this contract. Such examination may
require access to papers, billings, vouchers, or other documents not directly
related to the area agency if the purpose of such access is to review charges
to any indirect costs pool which distributes any amount of common costs to
various contractor programs. Such right of access shall continue as long
as such records, or any of them, are in existence.
(5)
The area agency contractor shall require that all
service providers adhere to subsection (f)(4) of this section.
(g)
Area Agency on Aging Accountability. To demonstrate area
agency contractor accountability:
(1)
area agency contractors shall meet programmatic and financial
performance targets (units, persons, unit costs) as outlined in its approved
area plan and the requirements established by the department within the five
percent variance allowed;
(2)
all reports, budgets, budget amendments, and other
required submissions to the Department shall be complete and accurate and
have sufficient documentation to verify such accuracy upon review by the
Department during any review, whether conducted at the site of the area agency
contractor or through desk review, when such documentation is required to
be submitted;
(3)
an area agency contractor shall require that subcontractor
service providers meet service requirements established by the department
and shall monitor for such compliance. The area agency contractor shall maintain
documentation to demonstrate such compliance;
(4)
an area agency contractor shall maintain a timely
reporting rate, on an annual basis, of 100% for financial status reports,
program performance reports, Ombudsman, the Area Plan Performance Report,
and all other required reporting obligations as prescribed by the department,
unless it has received written extension, in accordance with subsection (g)(6)
of this section, for a period not to exceed three working days following
due date.
(5)
area agency contractors shall file their area plan
and any required amendments, all monitoring responses, budget and budget
amendments on time, unless it has received written extension, in accordance
with subsection (g)(6) of this section, for a period not to exceed ten working
days following due date;
(6)
all requests for extension shall be received by the
Department in writing not less than two working days prior to the due date
of the reports, as identified in subsection (g)(4) and (5) of this section.
(A)
All requests shall provide the following information:
(i)
identification of the report for which extension is being
requested;
(ii)
justification for the need for extension;
(iii)
the proposed date of receipt by the department of the
submission, in accordance with the limitations set forth in subsection (g)(4)
and (5) of this section.
(B)
each report identified shall be considered a separate request
for purposes of this section; No more than two report extensions shall be
approved during any federal fiscal year.
(h)
Monitoring.
(1)
Area agency contractors shall conduct not less than one
annual on-site fiscal and program monitoring of service providers Fiscal
and program monitoring shall be conducted concurrently if possible.
(2)
Prior to conducting monitoring of service providers,
area agency contractors will conduct risk assessments of both direct and
contracted services using the process furnished by the department.
(3)
Desk reviews of subcontractors shall be conducted
by the area agency on aging contractor on all service providers monthly during
the fiscal year
(4)
Monitoring shall be accomplished by area agency on
aging contractors using programmatic and fiscal monitoring work papers developed
and furnished by the Texas Department on Aging. Area agencies may expand
these work papers to provide for special or unique monitoring requirements
of specific programs.
(5)
An annual customer satisfaction survey of program
participants/clients shall be conducted by all service providers using the
standard survey instrument furnished by the Department. The results of this
survey will be a part of the area agency's annual monitoring by the Department.
(i)
Targeting Service Delivery.
(1)
Purpose. These rules set policies for targeting Older Americans
Act services to ensure that those most in need receive services and to reduce
individual and social barriers to economic and personal independence for
older persons.
(2)
Scope. These rules shall apply to all area agency
on aging contractors.
(A)
All area agency on aging contractors shall comply with
the provisions on targeting contained in the Older Americans Act, as amended.
(B)
All area agency on aging contractors shall comply with
the provisions of the Americans with Disabilities Act of 1990, as amended.
(C)
All area agency on aging contractors shall comply with
the provisions of §504, Rehabilitation Act of 1973, as amended.
(3)
Administrative requirements.
(A)
Each area agency contractor shall identify the targeted
populations and the extent of their need for in-home services or services
available in senior centers and develop outreach strategies in its area plan
for meeting those needs.
(B)
Each area agency contractor shall include its specific
strategies for meeting the needs of the targeted population in its request
for proposals for services and its provider contracts must include those
strategies as a provision of the contract.
(C)
When funding is insufficient to serve everyone seeking
services, greatest unmet needs in the targeted populations shall be the principle
criteria for prioritization.
(D)
Each area agency contractor shall include a strategy in
its area plan which outlines how language translation services (including
sign language translators) will be made available to older persons with limited
English speaking ability when needed in order to obtain services.
(E)
The effectiveness of the area agency contractor's outreach
efforts to targeted populations shall be evaluated in accordance with the
Department's procedures as specified in this section.
(j)
Responsibilities for Imposing Penalties and Sanctions.
It is the responsibility of the area agency contractor to develop and follow
policies and procedures for imposing penalties and/or sanctions upon contractors/subcontractors
for non-performance of the contract agreement or non-compliance with service
delivery requirements.
(k)
Uniform logo for area agency on aging contractors. Each
area agency on aging contractor shall use the logo designed by the Department
to assure a uniform, statewide symbol for area agencies on aging designation
for public information purposes. The following logo shall be used.
Figure 1-40 TAC §260.1(k)
(1)
The logo shall be used for at least the following:
(A)
public service announcements;
(B)
pamphlets;
(C)
brochures;
(D)
signs;
(E)
newsletters;
(F)
business cards;
(G)
stationery;
(H)
displays;
(I)
reports;
(J)
other means of public communication media whenever possible.
(2)
Failure to physically demonstrate adherence to
this policy shall be considered non-compliance with this rule.
(l)
Uniform telephone listings. The telephone number of each
area agency on aging contractor, the area agency on aging's information and
assistance toll-free or collect number, and the area agency on aging's nursing
home ombudsman toll-free or collect umber shall appear in each telephone
directory that is published by the provider of local telephone service for
residents in any geographical area that lies in whole or in part in the planning
and service area served by the area agency on aging.
(1)
The listings shall appear in the unclassified sections
and government sections under the listing "SENIOR CITIZENS SERVICES," "AGING,"
"SOCIAL SERVICES," or other appropriate sections of the phone book if these
listings are not available.
(2)
The listings shall appear in the classified section
of the telephone directories of the major metropolitan area of the area agency
on aging, and to the extent possible, in other areas of the area agency on
aging's service area.
(3)
The listing in the unclassified section and classified
section shall begin with the words "Area Agency on Aging" to position it
at or near the top of each heading. The listing shall appear in boldface
type, as follows: Area Agency on Aging of (name of area):
(A)
Business Office-area code and telephone number;
(B)
Information and Assistance-toll-free or collect number;
(C)
Nursing Home Ombudsman-toll-free or collect number.
(4)
These listings shall be completed by no later
than the next printing cycle of the telephone directory of each provider
of local telephone service.
(5)
These listings shall be used in all other service
directories, public service announcements, pamphlets, brochures, reports,
newsletters, stationery, and other means of public communication media whenever
possible.
(m)
Listing of the Texas Department on Aging as primary funding
source by Area Agency on Aging Contractors. All area agency on aging contractors
designated under Title III of the Older Americans Act, as amended, shall
cite the Texas Department on Aging as its primary funding source.
(1)
The phrase "Funded by the Texas Department on Aging" shall
appear in all news releases, public service announcements, pamphlets, displays,
signs, brochures, reports, stationery, and other means of public communication
media.
(2)
Use of this phrase in all public communication media
is effective upon adoption of this rule. Existing stocks of information items
may be expended, and once expended, reorders will fall under this requirement.
(n)
Identification of Area Agency on Aging Facilities. Language
will be prominently displayed on a sign outside the location utilized as
an area agency on aging indicating the name of the area agency on aging to
assure clearly visible access to persons wishing to visit the physical location
of the area agency on aging.
(1)
This sign will adhere to local ordinances concerning signs.
(2)
The sign will also conform to the uniform logo requirements
for Area Agencies on Aging prescribed in subsection (k) of this section,
relating to use of logos.
(3)
The sign will also conform to the citation requirements
of the Texas Department on Aging as the primary funding source as prescribed
in subsection (m) of this section, relating to identification of funding
sources.
(4)
Failure to demonstrate the adherence to this policy
with physical evidence will be considered noncompliance with this rule.
(o)
Compliance with Interagency Agreements. The area agency
contractor shall comply with the terms of all applicable interagency agreements,
including, but not limited to, those agreements that are legislatively mandated,
or entered in to by the Department on behalf of area agency contractors for
the purpose of expanding and/or enhancing service delivery.
(p)
Emergency Management.
(1)
Area agency contractors shall consult with the Texas Department
on Aging, Office of Emergency Management, Department of Public Safety, the
Federal Emergency Management Agency (FEMA), the Administration on Aging,
contractors, state, county and local government entities, service providers
and other activities which have an interest or role in meeting the needs
of the elderly in planning for, during, and after natural, civil defense,
and/or man-made disasters. To accomplish this, area agencies shall:
(A)
appoint an emergency management coordinator;
(B)
participate in planning activities with district disaster
committees, other human service agencies and other entities and organizations
which are charged to meet the needs of disaster victims in emergency situations;
(C)
identify the "at risk" elderly in the planning and service
area;
(D)
require by contract stipulation that service providers
develop plans for emergency management;
(E)
review annually service providers' policies, procedures
and capabilities to meet the needs of the elderly in their service areas
prior to, during and after emergencies;
(F)
provide training to subcontractor staff regarding emergency
management activities;
(G)
provide information to the Department regarding the impact
of emergencies on the elderly population in their PSA;
(H)
provide authorized services to the elderly victims of the
disaster;
(I)
collect pertinent data necessary to submit reimbursement
requests for services provided during emergencies as relating to services
authorized during emergencies;
(J)
participate in initial meetings of the FEMA on- site teams
to assist in establishing recovery operations.
(2)
Emergency management services. Administration
on Aging Regional Office VI, Identical Memorandum Number 47-85, Disaster
Response System-Region VI, dated July 30, 1985, authorizes the following
services to manage emergency needs of the elderly:
(A)
expansion of information and assistance services on a 24-hour
emergency basis, including escort;
(B)
special outreach in order to encourage elderly disaster
victims to make application at FEMA disaster application centers (DACs)
as soon as they are established;
(C)
special transportation for elderly victims to DACs, doctors,
clinics, shopping and such essential travel in the event vehicles are not
available. Since FEMA funds may be available to fund this service, the area
agency should consult with the on-site federal coordinating officer prior
to expending OAA funds for this service;
(D)
assistance by case managers acting as disaster assistance
advocates to older persons in the disaster application centers in the benefits
application process, including follow up to assure older victims receive
approved grants and services and are protected from unscrupulous repair contractors;
(E)
licensed appraiser services to assist elderly disaster
victims in arriving at realistic estimates of losses incurred in the disaster;
(F)
handyman and chore services, including clean-up, since
FEMA may not be able to provide these services in sufficient volume through
voluntary agencies or religious organizations;
(G)
legal services only when the regular legal service program
must be expanded for insurance and disaster assistance grant settlement;
(H)
assistance to move elderly disaster victims from temporary
housing back to their own places of residence;
(I)
other Older Americans Act services when assessments indicate
that disaster related needs are unresolved by federal, state or voluntary
disaster assistance programs.
(3)
Reimbursement procedures. Reimbursement for the
services specified in paragraph (2) of this subsection (relating to services
which may be provided during disaster recovery) are authorized by the Older
Americans Act, §310. Requests for reimbursement shall be forwarded to
the Department within 30 working days of the date that disaster recovery
operations are completed. Reimbursement requests will be developed as follows.
(A)
Services to be documented for reimbursement will be sorted
into the categories listed in paragraph (2)(A)-(I) of this subsection (relating
to services which may be reimbursed).
(B)
A narrative of each of the services, which details the
number of units provided and the number of elderly served, will be written
as a cover page to each set of reimbursement documentation material.
(C)
Billing documentation, such as paid bills and invoices,
will be attached to the narrative of each category of service provided.
(D)
Other information which details the cause and the scope
of the disaster shall be attached.
(E)
If available from the FEMA on-site office, the certificate
of non-duplication of services shall be attached.
(F)
Upon receipt by the Department, the request for reimbursement
will be reviewed. Areas requiring additional information or clarification
will be identified and resolved with the AAA and service providers.
(q)
Conflicts-of-interest Requirements. Area agency on aging
contractors and their governing boards shall seek to avoid conflicts-of-interest,
in fact and perception, and provide proper notification when potential conflicts-of-interest
do occur.
(1)
An area agency on aging contractor shall ensure that neither
a current employee, nor any current board member, nor any aging advisory
committee member, nor any representative of the office of the state long-term
care ombudsman, paid or volunteer, holds a substantial financial interest,
directly or indirectly, in the profits of any entity from which services
or goods are contracted or otherwise procured by the area agency contractor,
nor any long-term care facility, nor derives personal profit, directly or
indirectly, from any entity which would conflict in any manner or degree
with the performance of responsibilities of the employee, board member, or
advisory committee member, or any representative of the office of state long-term
care ombudsman, paid or volunteer.
(A)
No current employee, current board member, or advisory
committee member who exercises any functions or responsibilities in the review
or award of any contract or the procurement of services or goods on behalf
of the area agency contractor, shall:
(i)
participate in any decision relating to the contract or
procurement of services or goods in which he has a direct or indirect substantial
personal financial interest;
(ii)
have a substantial financial interest, directly or indirectly,
in the contract or procurement of services or goods or the proceeds thereof.
Nothing in this subsection shall prohibit public officials of units of local
government from serving on a contractor's board or aging advisory committee,
notwithstanding the fact that such unit of local government is receiving
or may receive funds for the provision of services or goods under the terms
of the contract or procurement.
(B)
No representative of the office of the state long-term
care ombudsman, paid or volunteer, directly or indirectly, shall:
(i)
have direct involvement in the licensing or certification
of a long-term care facility or of a provider of a long-term care service;
(ii)
have a family member residing in a long-term care facility
which the representative is assigned or provides advocacy;
(iii)
have ownership or direct investment interest in a long-term
care service;
(iv)
be employed by or participate in the management of a long-term
care facility;
(v)
receive or have the right to receive, directly or indirectly,
remuneration under a compensation arrangement with an owner or operator of
a long-term care facility.
(C)
For a period of two years from the date a person ceases
his employment, board member duties, or committee member duties with an area
agency on aging or its contractor, the contractor will not award a contract
to a private entity in which any former board member's former committee member's
or former employee's relative is an officer, director, employee, or owner,
in part or whole, if the former employee, former board or committee member,
or former board or committee member's or former employee's relative has a
substantial financial interest in the contract or had a substantial involvement
in the development of the contract.
(2)
Board members and area agency on aging advisory
committee members who may have conflicts-of-interest, in fact or perception,
on any agenda item of a meeting shall refrain from comment on the item.
(A)
The member shall announce the potential conflicts-of-interest
and shall abstain from voting on any such agenda item.
(B)
The actions of conflicts-of-interest notice and voting
abstention shall be recorded in the minutes of the meeting.
(3)
Area agencies on aging shall include a requirement
in all Requests for Proposal (RFP) for services to the elderly and requests
for vendor enrollment that any potential conflicts-of-interest be identified
in the RFP response.
(A)
The notification of potential conflict-of-interest shall
include:
(i)
the person for which a potential conflict-of-interest exists,
(ii)
the relationship to any current or former board member,
current or former aging advisory committee member, or current or former employee,
and
(iii)
the nature of the potential conflict-of-interest.
(B)
The person for which the potential conflict(s)-of-interest
exists shall certify that he will abide by all rules established in this
subsection.
§260.2. Area Agency on Aging Fiscal Responsibilities.
(a)
Area agency contractor fiscal integrity. Area agency contractors
shall demonstrate and maintain fiscal integrity in order to comply with the
requirements of the Governing Documents as listed in §254.3 of this
title (relating to Governing Documents); all Texas Department on Aging Rules
as published in the Texas Administrative Code (TAC); the Department's policies
related to the Cash Management Improvement Act, a Treasury-State agreement
(CMIA, 31 Code of Federal Regulations Part 205); and with all state and local
laws as pertains to the financial operation of an area agency. Policies,
procedures, standards, and technical assistance memorandums shall be promulgated
by the Department, as necessary, in order to support and interpret these
rules and laws. The Department shall be the final authority in determining
how these interpretations shall pertain to programs for older persons. The
area agency on aging contractor shall comply with the following financial
criteria.
(1)
The area agency contractor's provisions for maintenance
of records shall include the following.
(A)
The area agency contractor shall establish written procedures
to adequately assure proper maintenance, retention, and access to financial
records, supporting documents, statistical records, as specified in §260.1
of this title (relating to Area Agency on Aging Administrative Requirements).
(B)
All of the records identified in subparagraph (A) of this
paragraph shall be kept at the area agency site and shall be maintained for
a minimum period of five years following the end of the area agency contractor's
fiscal year and until any pending litigation, claim or audit findings, issuance
of proposed disallowed costs, or other disputes have been resolved. Multi-site
area agencies may maintain all records at a designated central location.
(C)
The area agency contractor shall require that subcontractors
adhere to subparagraphs (A) and (B) of this paragraph, as applicable, relating
to the requirements for proper maintenance of records. It is not required
that the subcontractor's records be kept at the area agency on aging.
(2)
All purchases of service, materials, equipment,
and goods made with grant funds shall follow the criteria of allowability
as prescribed in OMB Circular A-87 or A-122, as applicable, and the following.
(A)
All purchases shall have been made by actual receipt of
the service or merchandise or issuance of a purchase contract, voucher, or
other legal document that binds both parties to the transaction, not later
than the last day of the grant period for which funds have been budgeted
and encumbered.
(B)
Actual receipt of the service or merchandise and payment
shall be made not later than 15 calendar days prior to the due date of the
closeout report for the grant period for which funds have been budgeted and
encumbered.
(C)
Any service or merchandise placed on order in a fiscal
program year, in accordance with subparagraph (A) of this paragraph and not
meeting the criteria in subparagraph (B) of this paragraph, shall be paid
for with funds awarded for the fiscal program year in which the service or
merchandise was actually received and/or payment made.
(3)
Disallowance of costs shall occur as follows.
(A)
In accordance with OMB Circular A-128 and A-133, determination
shall be made by independent audit and/or subcontractor monitoring by the
Department relating to the allowable use of federal, state, and matching
credit funds, in accordance with OMB Circulars A-87, A-122, and other applicable
laws, regulations, and circulars promulgated by recognized authoritative
bodies.
(B)
Costs found to be unallowable, in accordance with those
references in subparagraph (A) of this paragraph, relating to the allowable
use of funds, shall be designated as questioned costs.
(C)
Notification of disallowance resulting from questioned
costs revealed during independent audit shall be issued, in accordance with
subsection (b) of this section relating to the requirements for an independent
audit, following the failure to resolve all such questioned costs within
the six months allowed for resolution in accordance with OMB Circular A-128,§14
and OMB Circular A-133, §5. Disallowance resulting from non-receipt
of required subcontractor audits shall be resolved in the same manner as
if revealed by independent audit, in accordance with subsection (b) of this
section, relating to the requirements for an independent audit.
(D)
Notification of disallowance resulting from questioned
costs established during monitoring by the Department shall be issued by
a letter of notification of disallowance with intent to recover funds, which
will be sent by certified or registered mail, return receipt requested, within
60 calendar days following the failure to resolve all such questioned costs
within the time frame established by the Department.
(E)
The contractor shall be liable to the Department for any
costs disallowed as a result of unresolved questioned costs revealed during
an audit or monitoring relating to aging programs and/or expenditures. Such
funds will be recovered by recapture as specified in (F) of this subsection.
(F)
Recapture of payments.
(i)
Recapture of payment may occur when costs have been disallowed
by the Department, or if the area agency contractor has received funds in
excess of those actually earned. The Department may take appropriate action
including requiring the repayment of and/or withholding of funds in such
cases that overpayment has occurred.
(ii)
Any area agency contractor having funds recaptured because
of a disallowance, in accordance with paragraph (3) of this subsection relating
to disallowance, shall waive all rights to such funds and shall not receive
any of the funds upon reallocation.
(G)
In accordance with §254.15 of this title (relating
to Appeal Procedures for Area Agency on Aging Contractors) an area agency
contractor shall have the right to appeal the disallowance to the Department's
dispute resolution committee.
(b)
Independent audit. The area agency contractor shall provide
an independent audit as follows.
(1)
The area agency contractor shall provide and furnish the
Department an annual audit by an independent certified public accounting
firm within 30 calendar days following receipt of such audit, but in no case
more than 13 months following the end of the area agency contractor's fiscal
year.
(2)
The audit shall cover the entire organization and
be conducted in accordance with generally accepted auditing standards. Additionally,
audits shall be conducted in accordance with audit guidelines promulgated
by the Department, or the Single Audit Manager's Forum (SAMF), or other authoritative
source with prior written approval from the Department.
(3)
An area agency contractor receiving more than $25,000
in federal funding from all sources shall provide an audit in accordance
with the standards for financial and compliance audits contained in the Standards
for Audit of Governmental Organizations, Programs, Activities and Functions,
issued by the U.S. General Accounting Office; the Single Audit Act of 1984,
including all updates and revisions; and the provisions of OMB Circular A-128,
Audits of State and Local Governments, or OMB Circular A-133, Audits of Institutions
of Higher Education, and other Nonprofit Organizations, as applicable.
(4)
An area agency contractor shall require all subcontractors
to adhere to paragraphs (2) and (3) of this subsection, relating to the requirements
for an independent audit. This requirement shall not apply to for-profit
service providers. This requirement shall not apply to service vendors receiving
funds only through the direct purchase of services funding methodology and
not acting in the capacity of a subcontractor.
(5)
To recover unresolved questioned costs revealed in
an audit, the Department will send a Letter of Notification of Disallowance
with Intent to Recover Costs by certified or registered mail, return receipt
requested within 60 calendar days following the failure to resolve all such
questioned costs. The 60 calendar day period shall begin the next day following
the six months allowed for resolution in accordance with OMB Circular A-128,
§14 and OMB Circular A-133, §5.
(6)
Failure of the area agency contractor to secure an
acceptable independent audit of the subcontractor within the timeframe established
in paragraph (5) of this subsection, relating to the recovery of questioned
costs shall be deemed non-resolution. Non-resolution under this subsection
shall be considered a violation under §254.13(f)(11) of this title (relating
to Compliance with Contractor Responsibilities, Rewards and Penalties).
(c)
Debarment and Suspension. Conducting business with entities
under debarment or suspension shall be prohibited as follows.
(1)
The area agency contractor shall not knowingly deal with
any person, business, or other entity which has been suspended or debarred
from receiving federal funds under 45 Code of Federal Regulations §76.200,
concerning non-procurement, or 45 Code of Federal Regulations, Part 1229,
Government wide Debarment and Suspension (Non-procurement) and Government
wide Requirements for Drug-Free Workplace (Grants).
(2)
The area agency contractor shall secure a Certification
Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion for
Covered Contracts and Grants from any potential subcontractor, of any tier,
for which such certification is required, prior to issuing any award, grant
or contract.
(3)
The area agency contractor shall submit for each federal
fiscal year, as part of the area plan amendment, a Certification Regarding
Debarment, Suspension, Ineligibility and Voluntary Exclusion for Covered
Contracts and Grants, to certify that all service providers adhere to paragraph
(1) of this subsection, relating to the requirements regarding debarment
and suspension.
(d)
Budget submissions. All budget and budget amendment submissions
shall meet the following requirements.
(1)
For all original budget and subsequent budget amendment
submissions the following shall apply.
(A)
All area agency contractors shall submit an original budget
as part of its area plan prior to the beginning of each federal fiscal year.
Budget amendments shall be submitted as directed by the Department or when
there is a change of scope which affects the area agency contractor's ability
to implement its approved area plan. The budget, whether original or amended,
shall quantify the persons and units to be served, the expenses to provide
services, and the resources available to fully fund such expenses to assure
compliance with the goals and objectives detailed in the area plan narrative
in order to produce the desired outcomes of the area agency and fulfillment
of its mission and strategies as stated in the area plan.
(B)
All budget and budget amendment submissions shall be received
by the due date as prescribed by the Department.
(C)
The original budget shall use the planning figures provided
by the Department and must allocate all funds provided by the Department.
(D)
All budget amendments shall use actual allocations of
all funds awarded by the Department, including any carryover funds awarded.
(E)
The area agency contractor shall meet adequate proportion
(unless a written waiver is obtained), match, and maintenance of effort
requirements.
(F)
When an area agency contractor provides services through
Case Management and budgets resources under the DPS pool, verification of
intent to meet the requirements regarding adequate proportion, match requirements,
and maintenance of effort shall be submitted in a format to be prescribed
by the Department, unless the resources are budgeted under individual services
direct purchase of services pools.
(G)
The area agency contractor shall complete all supporting
documentation, as prescribed by the Department, for inclusion in all budget
submissions.
(2)
An amended budget must be submitted and approved
prior to the following:
(A)
contracting for a previously unbudgeted and unapproved
service if the amount of funds provided through the Department for the contract
is greater than $5,000; or
(B)
the area agency contractor conducting a service directly,
when waiver is required, which was not identified and approved in the area
plan and budget; or
(C)
the expenditure of unbudgeted funds resulting from an
increase in the approved administrative budget, regardless of the amount;
or
(D)
contracting for multiple previously unbudgeted and unapproved
services when the amount of funds provided through the Department for the
contracts exceed $15,000 in the aggregate.
(3)
An amended budget must be submitted for approval
within 20 workdays following:
(A)
discontinuance of a service which was identified and approved
in the area plan and budget; or
(B)
change of scope which affects the area agency contractor's
ability to implement its approved area plan.
(e)
Area agency contractor accountability. To demonstrate area
agency on aging accountability, area agency contractors shall meet programmatic
and financial performance targets as outlined in its approved area plan and
the requirements established by the Department.
(1)
Area agency contractors shall meet the following performance
requirements.
(A)
All fiscal reports, budgets, budget amendments, and other
required fiscal submissions to the Department shall be complete and accurate
and have sufficient documentation to verify such accuracy upon review by
the Department during any review, whether conducted at the site of the area
agency contractor or through desk review, when such documentation is required
to be submitted.
(B)
An area agency contractor shall maintain a timely reporting
rate, on an annual basis, of 100% for financial status reports, and all other
required fiscal reporting obligations as prescribed by the Department, unless
it has received written extension, in accordance with subparagraphs (D) and
(E) of this paragraph, relating to requests for extension, for a period not
to exceed three working days following due date.
(C)
Area agency contractors shall file their budget and budget
amendments on time, unless it has received written extension, in accordance
with subparagraph (D) of this paragraph, relating to requests for extension,
for a period not to exceed ten working days following due date.
(D)
All requests for extension shall be received by the Department
in writing not less than two working days prior to the due date of the reports,
as identified in subparagraphs (B) and (C) of this paragraph.
(i)
All requests shall provide the following information:
(I)
identify the report for which extension is being requested;
(II)
provide justification for the need for extension; and
(III)
indicate the proposed date of receipt by the Department
of the submission, in accordance with the limitations set forth in subparagraphs
(B) and (C) of this paragraph.
(ii)
each report identified shall be considered a separate
request for purposes of this section; no more than two report extensions
shall be approved during any federal fiscal year.
(E)
The area agency contractor shall meet, unless written waiver
is obtained, the following:
(i)
all requirements for adequate proportion with regard to
access services, in-home services, and legal services unless written waiver
is obtained; and
(ii)
all requirements for maintenance of effort with regard
to Ombudsman Activities.
(2)
Failure to meet the requirements in paragraph
(1) of this subsection, relating to area agency performance requirements,
shall result in actions being taken by the Department unless failure was
due to an act of God or action by the Department, in accordance with §254.13
of this title (relating to Compliance with Contractor Responsibilities, Rewards,
and Penalties).
(f)
Contracting. Area agency contractors shall apply prudent
business judgment in areas of contracting for services and goods to be purchased
and the reimbursement methodologies to be used in funding such contracts.
(1)
The authority for area agency contractors to contract is
based on the Older Americans Act of 1965, as amended, and its regulations;
HHS regulations on Administration of Grants; Title 45 Code of Federal Regulations
(CFR), Part 74; Title 45 CFR, Part 92; Title 45 CFR, Part 1321, et seq.;
Title 45 CFR, Part 91; and all policies and rules established by the Department;
and with all state and local laws as they pertain to contracting and reimbursement
methodologies.
(2)
When purchasing services the area agency contractors
shall:
(A)
use the specified rate for those services with a rate set
by the Department. The Department will set unit rates of payment by action
of the Texas Board On Aging which will be based on cost analysis, i.e., the
collection of cost reports, and analysis of data, or unit rates for similar
services set by other state agencies; or
(B)
purchase goods and services using any of the following
procurement methodologies for all services not covered under subparagraph
(A) relating to specified rates. These procurement methodologies are known
as cost reimbursement, performance based unit rate, direct purchase of services
and sole source procurement.
(i)
In cost reimbursement contracts, the area agency contractor
pays the subcontractor on a reimbursement basis for services rendered. The
subcontractor agrees to deliver specific services and the area agency contractor
makes payment of actual expenses based on a pro rata share that federal and/or
state funds represent of the total funds budgeted in the approved budget
for each specific service. Reimbursement shall not be adjusted to offset
poor management planning. Any adjustment to a reimbursement rate shall be
judged on its own merits. It is the responsibility of the subcontractor requesting
an increase in the share of expenses that federal and/or state funds will
pay to document to the area agency contractor that the increase is warranted
due to circumstances beyond their control. It is the responsibility of the
area agency contractor requesting a decrease in the share of expenses that
federal and/or state funds will pay to assure that the decrease is warranted.
Adjustments to the share of expenses that federal and/or state funds will
pay will be considered only in instances where:
(I)
a subcontractor experiences significant operating losses
due to events over which they have no control or reasonably could not have
anticipated; or
(II)
a subcontractor experiences excess revenues over operational
costs due to unanticipated, and/or unbudgeted additional resources; or
(III)
reductions in expenses due to a change in cost allocation
methodology.
(ii)
In using the unit rate performance based contracting method,
the area agency contractor agrees to pay the subcontractor in the amounts
and upon the terms, provisions and budgets as set forth in the contract as
a result of negotiation of a suitable unit rate. The area agency contractor
pays the subcontractor on a unit rate reimbursement basis for services rendered.
The subcontractor agrees to deliver specific services on an at-risk basis.
Adjustment to unit rates shall be considered using the criteria described
in subparagraph (B)(i) of this subsection.
(iii)
Direct purchase of service contracting is an alternative
contracting methodology for the purchase of services. It allows for the purchase
of service on a client-by-client basis instead of contracting annually by
either the performance based or cost reimbursement methods. The area agency
contractor sets aside a sum of money, known as a direct purchase pool, to
be used by Access and Assistance staff when developing an individual's care
plan. Direct purchase of services match requirements are established in §260.19
of this title (relating to Direct Purchase of Services).
(iv)
The sole source procurement method may be used only when
the award of a contract is not feasible under the other procurement methods.
In this event, area agency contractors shall comply with the procedures established
in 45 Code of Federal Regulations Part 92.36(d)(4), relating to procurement
by noncompetitive proposals.
(3)
Area agency contractors using the unit rate
performance based or cost reimbursement methods shall issue a request for
proposal for each service to be contracted prior to the beginning of each
area planning cycle and additionally, if the need arises during the area
planning cycle. Area agency contractors shall comply with competitive bidding
procedures for any available funds in excess of $25,000 in the aggregate.
Funds in excess of $25,000 shall not be subdivided to circumvent the intent
of this policy. Area agency contractors shall require specific information
on which to judge the qualifications of applicants and their potential to
be successful service providers. Notice of the availability of a request
for proposal shall be disseminated throughout the area to be served in such
a way as to promote fair and open competition in the procurement process.
Documentation shall be maintained by the area agency contractor to demonstrate
all such efforts. Information provided in the notice of the availability
of a request for proposal shall be sufficient to allow a person of prudent
judgment the facts necessary to determine reasonable interest in the request
for proposal. Complete request for proposal packets issued by area agency
contractors shall be in accordance with Department procedures.
(4)
Regardless of the type of procurement processes used,
the area agency contractor shall document that the subcontractor conforms
to the specified subcontractor service requirements in providing all services
and vendor service providers meet the specified service criteria set forth
in their request for bid. In the absence of adopted service requirements
for any specific service, the area agency contractor shall identify the performance
requirements which the subcontractor shall follow until such time as service
requirements are promulgated by the Department.
(5)
In order to establish and track service costs accurately,
each subcontractor shall have an accounting system which identifies all costs
for each specific service being purchased. The area agency contractor shall
require, by contract stipulation, that the subcontractor service provider
has complete and accurate accounting records to review and manage service
costs.
(6)
Service contracts shall contain specific requirements
for reporting, regardless of the procurement method used. Area agency contractors
shall include a provision for complete and accurate reporting and documentation
of units of service and unduplicated persons who receive the services. Payments
for service shall be based on the service units provided and the agreed upon
method for service payment.
(7)
Area agency contractors providing direct services
which require authority and waiver from the Department shall complete the
appropriate sections of the area plan or area plan amendments. The area plan
budget document shall specify the unit rate identified for applicable direct
services of the area agency. Area agency contractors shall enter into a direct
service agreement with the Department which states the service performance
expectation during a specified period. The direct service agreement shall
become part of the approved area plan. All requirements regarding performance,
accounting and reporting shall apply to area agencies in direct service provision.
(8)
Area agency contractors shall not purchase services,
regardless of the contracting methodology used as described in paragraph
(2)(B) of this subsection or the nature of the entity, from any subcontractor
not in compliance with the provisions of the Americans with Disabilities
Act. Expenditures in violation of this requirement shall be disallowed and
recapture of the disallowed payments shall be pursued by the Department in
accordance with subsection (a)(3) of this section.
(g)
Program income. Program income contributions shall be administered
in accordance with the Act; 45 Code of Federal Regulations, Part 1321; and
45 Code of Federal Regulations, Part 92.25. In addition the following shall
apply:
(1)
When an area agency contractor uses the cost reimbursement
methodology, as described in subsection (f)(2)(B)(i) of this section, relating
to cost reimbursement contracting, for funding subcontractors, reimbursement
shall not be made in excess of actual allowable expenses less program income
received during the reimbursement period in accordance with 45 Code of Federal
Regulations, Part 92.25, relating to program income.
(2)
When an area agency contractor uses the unit rate
performance based contracting methodology, as described in subsection (f)(2)(B)(ii)
of this section, relating to unit rate performance contracting for funding
subcontractors, no deduction shall be made by the area agency contractor
to the amount paid to the subcontractor based on units served for program
income received, since the subcontractor is deemed to be at-risk.
(3)
When an area agency contractor or other designated
case management or benefits counseling service provider purchases services
using the direct purchase of service methodology, it shall:
(A)
be the responsible entity for collection of program income
from program clients;
(B)
account for the program income receipt and expense on all
required financial reports; and
(C)
expend all program income collected for such services prior
to billing for units of service from federal or state funds.
(4)
In the event that program income is physically
collected by the vendor, all program income shall be remitted to the area
agency or entity providing the case management or benefits counseling activities
as appropriate. Program income collected by vendors shall not be retained
by the vendor to offset or enhance the purchase price of the service provided.
(h)
Expenditure of adequate proportion of funding for support
services categories. Each area agency contractor shall establish an adequate
proportion of the funding they receive under Title III, Part B, of the Older
Americans Act, as amended, for support services, to be expended to comply
with the Act, §306(a)(2) (Public Law 89-73), and shall include such
levels and justification for setting these levels in the area plan or area
plan amendment, as appropriate.
(1)
Adequate proportion of funding for support services shall
include each of the following support services categories and their designated
services:
(A)
services associated with access to services (transportation,
outreach, information and assistance, and case management services);
(B)
in-home services (homemaker and home health aides, visiting
and telephone reassurance, chore maintenance, and supportive services for
families of older individuals who are victims of Alzheimer's disease and
related disorders with neurological and organic brain dysfunction); and
(C)
legal assistance.
(2)
In determining the adequate proportion of funding
for each of these categories, the area agency contractor shall:
(A)
analyze information obtained through the local needs assessment
conducted for the area plan or area plan amendment;
(B)
analyze the availability and accessibility of non-Older
Americans Act resources in the region to meet those needs;
(C)
take into consideration the views of the elderly and their
caregivers concerning the need and accessibility of available resources;
and
(D)
include information and discussion of the proposed levels
for expending an adequate proportion of support service funds in a public
hearing held for the area plan or area plan amendment, as appropriate.
(3)
The area plan shall indicate the level of adequate
proportion for each of the support service categories as a percentage of
the Title III, Part B funding and include a narrative description of each
criteria listed in §260.2(h)(2), of this title (relating to determining
adequate proportion of funding).
(4)
An area agency contractor may propose a change in
the local adequate proportion funding level for any of the support service
categories at the beginning of the fiscal year; but not during the course
of the fiscal year of an approved area plan or area plan amendment. Appropriate
justification to change the level of funding shall be submitted using either:
(A)
criteria listed in §260.2(h)(2), relating to determining
adequate proportion of funding, shall describe and document changes in the
conditions of the service delivery system in the region which resulted in
the need for such change; or
(B)
evidence that a change in funds received from the state
or other funding sources due to a new funding formula, which was a result
of a revision in the census information from which allocations are determined.
(5)
Area agency contractors may seek a waiver from
setting and expending an adequate proportion of Title III, Part B funds for
these support service categories.
(A)
Such a waiver shall be submitted with the area plan or
area plan amendment prior to the effective fiscal year. Waivers will not
be reviewed or approved during the fiscal year for which the area agency
contractor has an approved area plan or area plan amendment.
(B)
The burden of proof that an adequate supply of support
services in these categories is available in the region is the responsibility
of the area agency contractor when applying for such a waiver.
(C)
Separate waiver requests shall be submitted for each category
of support services for which a waiver is sought and must include appropriate
justification using the criteria listed in §260.2 (h)(2), relating to
determining adequate proportion of funding.
(D)
At least one public hearing shall be held on the area plan
or area plan amendment containing a request for waiver of this requirement.
The area agency grantee shall notify all interested parties in the area of
the public hearing and provide them with an opportunity to testify.
(i)
Ombudsman maintenance-of-effort. Area agency on aging contractors
shall expend, in each fiscal year, a percentage of Title III-B funds for
Ombudsman activities which shall represent the equivalent percentage of Title
III funds expended in the base year as established in the Older American
Act of 1965, as amended for such activities.
(1)
The base year percentage shall be calculated under the
following methodology.
(A)
Determine the total Title III Ombudsman expenditures as
reported on the final Form 269 for the base year.
(B)
Subtract from the amount obtained in clause (i)(1)(A) the
amount of Title III-G funds expended in Ombudsman activities.
(C)
Add to the amount obtained in clause (i)(1)(B) the amount
of funds expended from the Ombudsman Training grant and the OBRA grant, if
applicable, as reported to the Department.
(D)
Divide the amount obtained in clause (i)(1)(C) by the Title
III-B allocation for the base year.
(2)
the percentage calculated in accordance with
the methodology established in paragraph (1) of this subsection shall be
multiplied, each year, by the amount of Title III-B funding allocated to
each area agency to determine each area's Ombudsman Maintenance-of Effort
requirement.
(3)
the Department shall issue a listing of the Ombudsman
Maintenance-of-Effort requirements within 45 days following receipt of each
year's federal funding allocation.
(4)
The Ombudsman Maintenance-of-Effort requirement shall
not be increased or decreased due to categorical fund transfers.
This agency hereby certifies that the adoption has been
reviewed by legal counsel and found to be a valid exercise of the agency's
legal authority.
Issued in Austin, Texas, on January 2, 1997.
TRD-9618791
Mary Sapp
Executive Director
Texas Department on Aging
Effective date: January 23, 1997
Proposal publication date: July 26, and September 17, 1996
For further information, please call: (512) 424-6840
Chapter 48.
Community Care for Aged and Disabled
Part IV.
Texas Commission for the Blind
Chapter 164.
Independent Living Program
Subchapter B. Basic Program Requirements
Subchapter C. Independent Living Services
Subchapter D. Order of Selection for Independent Living Services
Subchapter E. Consumer Participation in Cost of Services
Subchapter F. Maximum Affordable Payment
Chapter 172.
Advisory Committees and Councils
Part IX.
Texas Department on Aging
Chapter 270.
General Service Requirements