Part II.
Texas Department of Mental Health and Mental Retardation
Chapter 403.
Other Agencies and the Public
Subchapter H. Interstate Transfer
25 TAC §§403.221-403.232
The Texas Department of Mental Health and Mental Retardation
(TDMHMR) adopts the repeals of §§403.221- 403.232 of Chapter 403,
Subchapter H, concerning interstate transfer, without changes to the proposed
text as published in the October 24, 1997, issue of the Texas Register (22
TexReg 10492). New §§411.351-411.362, concerning the same, which
replace the repealed sections, are contemporaneously proposed in this issue
of the
Texas Register.
The repeals allow for the adoption of new sections.
No public comment was received.
The sections are adopted under the Texas Health and Safety Code,
Title 7, §532.015, which provides the Texas Mental Health and Mental
Retardation Board with rulemaking powers and the Interstate Compact on Mental
Health, Texas Health and Safety Code, Chapter 612, which authorizes the adoption
of rules to carry out the compact more effectively.
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 December 19, 1997.
TRD-9716978
Ann Utley
Chairman, Texas MHMR Board
Texas Department of Mental Health and Mental Retardation
Effective date: January 8, 1998
Proposal publication date: October 24, 1997
For further information, please call: (512) 206-4516
Subchapter D. Additional Mandatory Standards for Selected Mental Retardation Community-based Providers
25 TAC §§408.101-408.106
The Texas Department of Mental Health and Mental Retardation
(TDMHMR) adopts the repeal of §§408.101-408.106 of Chapter 408,
Subchapter D, governing additional mandatory standards for selected providers
of community-based mental retardation supports and services without changes
to the text as proposed in the September 26, 1997, issue of the
Texas Register
(22 TexReg 9625).
The repeal accommodates Senate Bill 1247 of the 75th Legislature which
amends the Texas Health and Safety Code, Chapter 142, to clarify that entities
serving only persons enrolled in a program funded and monitored by this department
satisfy the requirements for licensure by the Texas Department of Health
(TDH) as a home and community support services agency (HCSSA).
No public hearing was held. Written comments were received from the Private
Providers Association of Texas (PPAT), Austin.
The commenter expressed support for the repeal of the subchapter, noting
that the organization was an active participant in the passage of SB 1247.
The department acknowledges the statement of support.
The repeal is adopted under the Texas Health and Safety Code,
§532.015(a), which provides TDMHMR with broad rulemaking authority;
and under §534.052, which gives the board rulemaking authority for community-based
mental health and mental retardation services provided by community centers
and other contract providers.
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 December 19, 1997.
TRD-9716976
Ann Utley
Chairman, Texas MHMR Board
Texas Department of Mental Health and Mental Retardation
Effective date: January 8, 1998
Proposal publication date: September 26, 1997
For further information, please call: (512) 206-4516
Subchapter D. Home and Community-based Services
25 TAC §§409.101, 409.103, 409.109, 409.114, 409.115, 409.119
The Texas Department of Mental Health and Mental Retardation
adopts amendments to §§409.101, 409.103, 409.109, 409.114, 409.115,
and 409.119 of Chapter 409, Subchapter D (relating to Home and Community-based
Services (HCS)). Sections 409.101 and 409.109 are adopted with changes to
the proposed text as published in the September 5, 1997, issue of the
TDMHMR adopts the amendments in order to streamline the HCS eligibility
determination process and to improve the enforceability of the HCS program
provider certification requirements.
The adopted amendments would require the transfer of initial ICF-MR level-of-care
eligibility determinations for HCS applicants from the Texas Department of
Human Services (TDHS) to TDMHMR; clarify the HCS eligibility criteria; incorporate
the HCS Consumer Principles for Evidentiary Certification affecting the rights
of recipients and the certification of providers; update sections of the
rule to reflect current practices for correcting lapsed level-of-care determinations
and the transfer of program provider contract administration from TDHS to
TDMHMR; correct a typographical error inadvertently included in the last
action on this rule; and provide cross-references for some citations.
Section 409.101(b) is revised on adoption to retain paragraph (3), with
the addition of language clarifying that individuals diagnosed by a licensed
physician as having a related condition, as defined in §406.202 of Chapter
406, Subchapter E (relating to Definitions for Level-of-Care and Level-of-Need),
may be eligible for enrollment in the HCS program. Figure 1: 25 TAC §409.109,
HCS Consumer Principles for Evidentiary Certification, is adopted with the
following revisions: Principle 8 which requires providers to have evidence
that persons being served are currently enrolled in HCS is deleted as unnecessary
due to the recent implementation of an automated enrollment and billing system;
Principle 42 (proposed as Principle 43) was revised to clarify when the interdisciplinary
team's authorization to purchase adaptive aids for an individual must be
based on the recommendation of the individual's physician or another licensed
professional; Principle 59 (proposed as 60) has been revised to conform to
the definition of Supported Home Living as contained in the waiver by deleting
the reference to individuals receiving foster care services from the Texas
Department of Human Services; Principles 61.02 (proposed as 62.02), 61.03
(proposed as 62.03), 61.04 (proposed as 62.04), and 61.05 (proposed as 62.05)
were modified for consistency with the respite service definition contained
in the HCS waiver request; Principle 65 (proposed as 66) was revised to include
as members of an individual's interdisciplinary team other persons who are
assigned to provide or who are currently providing services to that individual.
A public hearing regarding the proposed rules was held September 18, 1997,
at which no oral or written comments were received. Written comments were
received from the Texas Department of Mental Health and Mental Retardation,
Austin; Tarrant County Mental Health Mental Retardation Services, Fort Worth;
Mental Health and Mental Retardation Authority of Harris County, Houston;
Nueces County MHMR Community Center, Corpus Christi; Autistic Treatment Center,
Dallas; Parent Association for the Retarded of Texas, Austin; and two private
citizens.
One commenter recommended that the department re-evaluate the anticipated
fiscal impact of the rule amendment because the impact appeared to be too
low.
The department responds that the fiscal impact is correct as published.
The anticipated fiscal impact pertains only to the assumption by TDMHMR of
initial Level-of-Care(LOC) determinations and not to other department functions
related to the HCS Program enrollment process and annual LOC renewal process.
Another commenter recommended that the Level-of-Care Assessment Form and
the Inventory for Client and Agency Planning (ICAP) be attached to the rule
as exhibits.
The department responds that the Level-of-Care Assessment Form and instructions
for completing the form are available from the department and from the Texas
Department of Human Services (TDHS) upon request and are also available in
various program provider manuals published by the department and TDHS. The
ICAP is a copyrighted instrument which is available to appropriately credentialed
professionals from the publishers of the instrument (Riverside Publishing
Company, 425 Spring Lake Drive, Itasca, Illinois, 60143-2079).
One commenter recommended that the rule specify that all correspondence
between the department and HCS provider agencies referenced in the rule sections
under consideration also be sent to the consumer's legally authorized representative.
The department responds that a consumer and/or the consumer's legally authorized
representative may request copies of records related to the consumer's services
and eligibility from the HCS provider agency serving the consumer. The department
will provide copies of correspondence related to payment of a provider agency
or correspondence related to the contractual relationship between the department
and the provider agency in accordance with the Open Records Act and Chapter
405, Subchapter Y, of this title (relating to Client Rights).
Several commenters urged the department to retain the requirement that
a determination of mental retardation be completed in accordance with state
law prior to an individual's enrollment in the HCS Program. The commenters
believed that the standards for determining that a person has mental retardation
prescribed under current departmental rules (Chapter 405, Subchapter D, relating
to Determination of Mental Retardation and Admission to Mental Retardation
Services) decreases the possibility of misdiagnosis and, therefore, the possibility
that an individual's service needs will not be appropriately addressed. The
commenters also noted that the standards for assessment and diagnosis contained
in departmental rules regarding the assignment of ICF/MR Levels-of-Care (Chapter
406, Subchapter E, relating to ICF/MR Programs: Eligibility and Review) are
not adequate to insure proper diagnosis.
The department responds that as the Medicaid operating agency for the ICF/MR
Program and the HCS Program, the department must assure that a consistent
criteria is used to assign an ICF/MR Level-of-Care (LOC) which is required
for eligibility for each of these programs. The proposed revision to the
HCS eligibility criteria was intended to eliminate an inconsistency in the
criteria caused by requiring an individual to have a determination of mental
retardation and to qualify for an ICF/MR LOC I, V, or VI. The current criteria
for the ICF/MR LOCs I and V allow the assignment of an LOC if an individual
is assessed to have a full-scale I.Q. score within the range of 35 to 75,
has deficits in adaptive behavior, and has a related condition (a developmental
disability other than mental retardation) which occurred prior to the individual's
twenty-second birthday. The department will revise the paragraph proposed
for deletion to indicate that applicants to the HCS Program must have either
a determination of mental retardation performed in accordance with state
law or be diagnosed by a licensed physician as having a related condition
as defined in Chapter 406, Subchapter E, prior to enrollment in HCS. The
department will review the rules governing the ICF/MR LOC assignment and
will study ways to increase the objectivity and reliability of the diagnostic
standards pertaining to the assignment of LOCs for individuals with related
conditions.
Two commenters indicated that the department needed to add the term legally
authorized representative (LAR) at least 19 places in the principles.
The department is unable to determine from this comment the specific locations
where the term LAR is suggested to be added. The continuing role and authority
of the LAR is presented in HCS Consumer Principles 5.39 and 65 (proposed
as 66). Principle 5.39 requires the LAR to be informed of all rights of the
HCS Program; to have the opportunity to participate in the planning for HCS
services; and to have the opportunity to advocate for all rights of the individual.
Principle 65 (proposed as 66) requires the LAR to be a member of the individual's
Interdisciplinary Team which is responsible for developing and overseeing
the services delivered by the HCS Provider. Finally, under applicable state
law the LAR is the designated person responsible for all decisions involving
his/her ward. HCS Providers are required to comply with state law.
Two commenters stated, regarding principle 5.18, that the individual (consumer)
should also live near family and/or the LAR.
The department responds that the requirement for the consumer to maintain
involvement with the family and to live near the family and/or the LAR is
contained in principles 12 (proposed as 13) and 38 (proposed as 39). Principle
12 (proposed as 13) requires the HCS Provider to encourage and assist families
to remain involved in the individual's life. Principle 38 (proposed as 39)
requires the HCS provider to facilitate the opportunity for the individual
to live near family and friends unless justified by the Interdisciplinary
Team based on the informed consent of the individual or, if applicable, the
LAR.
Two commenters stated that the principle pertaining to enrollment in the
HCS Program on a zero-reject and first- come, first-served basis should be
changed to a most-in-need basis.
The department responds that the principle reflects the department's current
policy whereby vacancies in the HCS Program are filled based on the eligible
individual's position on the waiting list in accordance with §409.102
of this title (relating to process for applicant referral to contracted HCS
provider agencies).
Two commenters expressed concern regarding Principles 13, 14 and 15 (proposed
as 14, 15 and 16), which indicate that the HCS program provider shall have
evidence that when a child is unable to reside or live with the child's natural
family members, then the child must be supported in a family environment
such as an adoptive family or a foster family. The commenters indicated that
these principles suggest that whenever a natural family can not keep the
child at home they are not a supportive family and should let an adoptive
or foster family take over.
The department responds that the intent of these principles is to ensure
that a consumer who is under age 18 has the opportunity to live in as permanent
a family environment as possible. The department makes no judgement on the
supportiveness of a family who is unable to keep an individual in the home.
These principles are also intended to address situations where parental rights
have been terminated through legal processes. The rights of the LAR to choose
placement, regardless of the age of the consumer, is not effected by these
principles. It is the expectation of the HCS program that the LAR will be
involved in all decisions regarding a consumer's program and living arrangements.
Two commenters stated, regarding Principle 51 (proposed as 52), that the
LAR should be added to the language or the interdisciplinary team (IDT) can
contraindicate, document and justify exceptions to the requirements of the
principle. Further the commenters indicated that severely or profoundly retarded
consumers must not be allowed the acquisition of skills for sex, driving
a car or wandering off alone even though this is age appropriate behavior.
The department responds that the HCS provider is expected to protect the
health and safety of all individuals in its program. This protection is mandated
through the HCS Consumer Principles and by the federal government. A requirement
of the HCS program, illustrated throughout the HCS Consumer Principles, involves
the development by the IDT (which includes the LAR) of all services based
upon the needs, abilities and strengths of the individual, as determined
through assessment information. This principle addresses consumer integration
and opportunities for meaningful age-appropriate activities which promote
growth and learning. These activities are expected to be consistent with
the functional abilities and comprehension of the individual and do not include
opportunities which could result in danger to the individual or others. Further,
the activities listed in the day habilitation section of the principles are
those activities which qualify as approved services within the waiver service
definition. The IDT is expected to develop appropriate goals for individuals
based upon assessed needs, level of functioning, and strengths. This principle
does not require all habilitation training activities to be addressed for
all individuals. The amount and type of service provided to an individual
should be based upon the actual needs of the individual, as determined by
the IDT.
Two commenters expressed concern, regarding Principle 73 (proposed as 74),
governing denials and discharge, that an individual who is ICF-MR eligible
could be refused HCS enrollment by TDMHMR.
The department responds that an individual who meets all eligibility requirements,
including an ICF-MR Level-of-Care, may not be refused enrollment by TDMHMR.
The intent of this principle is to prevent HCS providers from arbitrarily
refusing services to individuals who are eligible.
Two commenters stated, regarding Principle 74 (proposed as 75), that MRAs
should be required to have evidence of the individual's informed choice between
ICF/MR and HCS as part of their performance contract.
The department responds that an informed choice between ICF-MR and HCS
is a federal requirement for consumer eligibility. MRAs who are also HCS
program providers are required to comply with this principle. Elements of
the performance contract between the department and the MRAs are outside
the scope of this rule.
Regarding Principle 75 (proposed as 76), two commenters questioned what
happens to the individual during the 10 working days the HCS program provider
has to submit evidence to TDMHMR regarding approval of temporary or permanent
service termination.
The department responds that TDMHMR is the only authority which may authorize
temporary or permanent discharge. This principle is included to assure that
providers notify TDMHMR of those potential discharges. The status of the
consumer during the 10 day period is dependent upon the individual situation
of the consumer and whether he/she is still available to be served by the
provider. Within this principle, it is expected that, as possible, the provider
will develop a discharge plan to assure alternate service linkages and continuity
of services. It is also expected that, within the ability of the provider,
the consumer's health and safety be protected at all times.
Regarding Principle 5.15, one commenter requested that the term restraint
be defined and that the use of emergency restraint be included.
The department responds that the right to freedom from restraint is available
to all HCS consumers. However, the department recognizes the possibility
that individuals may require restraint procedures in order to protect the
consumer or others from harm. That possibility is addressed in Principle
5.05 which states that the individual is to be informed of the Individual
Service Plan and Individual Plan of Care, including any restrictions affecting
the individual's rights. Restraint is also addressed in Principle 101 (proposed
as 102), describing the requirements for intrusive behavioral techniques
and, in general, in the principles related to IDT functions and program development.
Regarding Principles 5.16 and 26 (proposed as 27), one commenter indicated
that the language needs to be revised to indicate that the consumer may attend
the school of their choice, since some parents choose private schools or
home schools for their children.
The department responds that these principles address the right of access
to free public schooling and do not state that an individual must attend
public school, only that the provider may not restrict access. Appropriate
schooling as determined by the LAR and/or the IDT and as allowed within the
Texas education system are acceptable alternatives.
Regarding Principle 5.42, one commenter indicated that the client rights
hotline telephone number needs to be included, and a distinction made between
the TDMHMR rights hotline telephone number and the Texas Department of Protective
and Regulatory Services (TDPRS) abuse/neglect hotline telephone number.
The department responds that the TDMHMR hotline number was included in
the principle as published. This number is clearly identified as the TDMHMR
number to be used for registering complaints. The provider's responsibility
to notify the Texas Department of Protective and Regulatory Services (TDPRS)
for abuse/neglect allegations is stated in Principle 97 (proposed as 98).
The Provider may use the central hotline number or may report allegations
to the TDPRS regional offices.
Regarding Principle 8, one consumer stated that with the current automated
billing system this principle is not applicable.
The department responds that it agrees with the comment and will delete
Principle 8.
Regarding Principle 42 (proposed as 43), one commenter indicated that the
language needs to specify adaptive aids costing less than $500 each are authorized
by the IDT.
The department responds that it agrees with the comment and will reword
the principle to clarify that each adaptive aid costing less than $500 requires
IDT authorization.
Regarding Principle 44.08 (proposed as 45.08), one commenter stated that
the language needs to read "arranging transportation as needed to carry out
the Individual Service Plan."
The department responds that the current language has been approved by
the Health Care Financing Administration (HCFA). Any service reimbursed through
the waiver must be addressed in the consumer's Individual Service Plan.
Regarding Principles 59.02, 59.03, and 59.04 (proposed as 60.02, 60.03,
and 60,04), one commenter indicated that the phrase "specific to the consumer
served" needs to be added.
The department responds that residential assistance services and the accompanying
consumer goals are developed through the IDT process, which must consider
the individualized needs of the consumer.
Regarding Principle 64.01 (proposed as 65.01), one commenter indicated
that the language needs to be reworded to state "No more than 1 employee
or 3% of the work force have developmental disabilities..." The commenter
stated that it is discriminatory to ask how many people have physical disabilities,
therefore that information can not be obtained prior to employment.
The department responds that the general requirement of 3% of the work
force or no more than one employee is consistent with the TDMHMR definition
of supported employment and the service definition as approved by the Health
Care Financing Administration. The HCS provider is not expected to engage
in discriminatory activities when placing individuals in supported employment,
but is expected, within the realm of prudent judgement, to assure that work
settings are as integrated as possible.
Regarding Principle 65 (proposed as 66), one commenter indicated that direct
care provider (habilitator) is not included.
The department agrees and will add direct service providers to the composition
of the IDT.
Regarding Principle 73 (proposed as 74), one commenter stated that the
phrase "or if the program is at capacity" be added.
The department responds that the capacity of individual programs is a contractual
issue and not one of certification. If a program is at contractual capacity,
that program is not an option from which the consumer may choose.
Regarding Principle 74 (proposed as 75), one commenter indicated that Form
3609 is provided by the MRA.
The department responds that Form 3609, which verifies the consumers choice
between ICF-MR and HCS, is completed by the local Mental Retardation Authority
(MRA). However, the HCS provider is required to maintain copies of all enrollment
documentation in the consumer's file.
Regarding Principle 88 (proposed as 89), one commenter stated the language
needs to be reworded to state "...shall verify that the provider of dental
treatment is currently qualified..." The commenter states that dentists do
not contract with the provider, therefore, when the consumer has chosen their
own service provider for dental services it would not be appropriate for
the HCS provider to ask for a copy of the dentist's license.
The department responds that regardless of how a dental treatment provider
is chosen, if the HCS provider is reimbursed through the waiver for such
service, the provider must have evidence that the dentist is licensed in
the State of Texas. The principle does not specifically require a copy of
a license. Any verifiable evidence of licensure is sufficient.
Regarding Principle 62 (proposed as 63), one comment stated that the principle
has been amended so that the IDT for the individual involved in respite specify
the visit by the person receiving the respite services and that the visit
provides no deterrent to the health, safety and welfare as well as rights
and/or needs of either individual. Previously, the principle allowed the
individuals who live in the home to give permission for another individual
to come into the home for respite services. The commenter is of the opinion
that the involvement of the full IDT is not feasible. However, the commenter
does view it as feasible if respite options are discussed during the annual
individual service plan meeting where compatible individuals are identified.
The department responds that this principle has been reworded for minor
grammatical changes. The requirements have not substantially changed from
the original language in use prior to the publication of the current proposal.
It is acceptable for the IDT of each involved consumer to authorize respite
services for more than one occurrence, as long as there are no changes in
the consumers' status.
The amendments are adopted under the Health and Safety Code,
§532.015(a), which provides the Texas Mental Health and Mental Retardation
Board with broad rulemaking authority; and under the provisions of Texas
Government Code, which provides the Texas Health and Human Services Commission
with the authority to administer federal medical assistance funds.
§409.101. Eligibility Criteria.
(a)
(No change.)
(b)
To be determined eligible by TDMHMR for HCS services,
individuals must also:
(1)
meet the ICF-MR I, V, or VI level of care criteria as
determined by TDMHMR or TDHS according to Chapter 406, Subchapter E, of this
title, concerning ICF/MR Program: Eligibility and Review, and applicable
federal regulations, and as verified by a current level of care (LOC) assessment
form;
(A)
An LOC assessment (or reassessment) form signed by TDMHMR
or TDHS is considered valid for enrollment purposes by TDMHMR for 364 days
from the date of issuance.
(B)
Reevaluations of level of care are performed annually
by TDMHMR. An initial reevaluation of level of care must be performed no
later than 364 calendar days from the date of enrollment. Subsequent LOC
reevaluations must be performed no later than 364 calendar days from the
effective date of the prior level of care assignment.
(C)
In order for payment to be considered for days that an
individual was receiving HCS services but did not have a current LOC assessment
form in place, the provider must follow the process described in §409.119
of this title (relating to Gaps in Level-of-Care Coverage);
(2)
live in the contracted provider's geographic
catchment area. If an applicant has been removed from his home and community
because of ICF-MR institutional placement, he may be considered for placement
in the HCS program even though his original county of residence is outside
the provider's geographic catchment area; and
(3)
have had a determination of mental retardation performed
in accordance with state law (Texas Health and Safety Code, Chapter 593.
Admission and Commitment to Mental Retardation Services, Subchapter A) or
be diagnosed by a licensed physician as having a related condition as defined
in §406.202 of this title (relating to Definitions for Level-of-Care
and Level-of-Need), prior to enrollment in the HCS Program.
(4)
have an Individual Plan of Care for Home and Community-based
Services form developed by the provider's interdisciplinary team composed
of a case manager and nurse who meet the qualifications specified in the
waiver, and the individual or legally authorized representative.
(A)
The Individual Plan of Care for Home and Community-based
Services form must specify the type of waiver services required to keep an
individual in the community, the units of waiver services, and their frequency
and duration.
(B)
The Individual Plan of Care for Home and Community-based
Services form must be signed and dated by the interdisciplinary team prior
to implementation. The interdisciplinary team must certify in writing that
the waiver services authorized on the Individual Plan of Care form are necessary
to avoid ICF-MR institutional placement and are appropriate to meet the applicant's
needs in the community, as recommended. The initial individual plan of care
must be based upon the community support analysis (Exhibit A) developed by
the mental retardation authority (MRA) according to §409.102 of this
title (relating to Process for Applicant Referral to Contracted HCS Provider
Agencies).
(C)
The initial Individual Plan of Care for Home and Community-based
Services form must be approved by TDMHMR. The Individual Plan of Care form
must be updated by the provider at least annually. Revisions and updates
to the Individual Plan of Care form are subject to review and approval during
annual on-site certification and other reviews conducted by TDMHMR. Any gaps
in the coverage periods of the individual plans of care result in loss of
payment to the provider.
(c)
(No change.)
(d)
(No change.)
(e)
(No change.)
§409.109. Corrective Action and Provider Sanction.
The HCS provider must be in continuous compliance with the HCS Consumer
Principles for Evidentiary Certification. Each HCS provider will receive
a certification review at least annually in order to maintain certification
status. The guidelines specified in §§409.110 - 409.115 of this
title (relating to Hazards to Health, Safety, and Welfare; Level I Action;
Level II Action; Level III Action; Unannounced or Intermittent Review Visits;
and Discretionary Certification Sanctions) are used by TDMHMR to determine
the need for provider sanctions and/or provider onsite follow up review visits
that occur before those required concurrently with the recertification review.
Current certification review corrective action plans required from the provider
and related timelines remain in effect.
Figure 1: 25 TAC §409.109
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 December 19, 1997.
TRD-9716980
Ann Utley
Chairman, Texas MHMR Board
Texas Department of Mental Health and Mental Retardation
Effective date: January 8, 1998
Proposal publication date: September 5, 1997
For further information, please call: (512) 206-4516
Subchapter H. Interstate Transfer
Chapter 408.
Standards and Quality Assurance
Chapter 409.
Medicaid Programs
Chapter 411.
State Authority Responsibilities