Part I.
Texas Department of Human Services
Chapter 45.
Community Living Assistance and Support Services
The Texas Department of Human Services (DHS) proposes new chapter
45, Community Living Assistance and Support Services, concerning suspension
and termination of services, program and claim payment requirements, and fiscal
monitoring, for its Community Living Assistance and Support Services (CLASS)
program. The purpose of the new chapter is to establish rules for the CLASS
program. These rules clarify when services to a participant must be suspended
and when services must be terminated. The process for suspension or termination
of services is defined. Also defined are the documentation requirements for
provider payment, specifying what constitutes administrative and financial
errors and establishing provider sanctions for errors identified. A sanction
of 100% of the paid unit rate is applied to financial errors identified on
the documentation reviewed, eliminating payment for services not authorized
or not delivered according to program rules. A sanction of 12% of the unit
rate is applied to the paid units with administrative errors on the documentation
reviewed, reducing payment for administrative services not performed. Administrative
and financial errors are not extended beyond the documentation reviewed. Compliance
with these rules improves fiscal accountability.
Eric M. Bost, commissioner, has determined that for the first five-year
period the sections are in effect there will be no fiscal implications for
state or local government as a result of enforcing or administering the sections.
Mr. Bost also has determined that for each year of the first five years
the sections are in effect the public benefit anticipated as a result of enforcing
the sections will be to initiate a sanction of 12% for administrative errors,
which is the percentage of the reimbursement paid by the department that is
attributed to administration by the provider, and initiate a sanction of 100%
for financial errors eliminating payment for services that are not authorized
and reducing the cost of services that are not delivered according to program
rules and policies as established in current rules. There will be no effect
on small businesses. There is no anticipated economic cost to persons who
are required to comply with the proposed sections.
Questions about the content of this proposal may be directed to Don Mann
at (512) 438-3642 in DHS's Long-Term Care section. Written comments on the
proposal may be submitted to Supervisor, Rules and Handbooks Unit-010, Texas
Department of Human Services E-205, P.O. Box 149030, Austin, Texas 78714-9030,
within 30 days of publication in the
Texas Register
.
Subchapter B. Suspension and Termination of Services
40 TAC §§45.201, 45.203, 45.205, 45.207, 45.209, 45.211, 45.213, 45.215
The new sections are proposed 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 new sections implement the Human Resources Code, §§22.001-22.030
and §§32.001-32.042.
§45.201.Termination of Services to Current Participants.
(a)
The case management agency (CMA) with concurrence by the
Texas Department of Human Services (DHS) must terminate Community Living Assistance
and Support Services (CLASS) services if one or more circumstances specified
in paragraphs (1)-(17) of this subsection occur. The CMA and direct services
agency (DSA) must provide written documentation to DHS to support the reason
for denial of services.
(1)
The participant leaves the state for more than 90 days
or moves to a county in which the CLASS program does not exist.
(2)
The participant dies.
(3)
The participant has resided in an institutional setting
for longer than 120 days. An institution includes an acute care hospital,
state hospital, rehabilitation hospital, state school, nursing home or intermediate
care facility for persons with mental retardation/related condition (ICF-MR/RC).
DHS will retain authority to extend this time in extraordinary circumstances.
(4)
The participant requests in writing that services
end.
(5)
The participant is not financially eligible for Medicaid
benefits.
(6)
The participant does not meet the level of care criteria
for ICF-MR/RC.
(7)
The estimated cost of the CLASS services necessary
to adequately meet the needs of the participant exceeds the CLASS cost ceiling.
(8)
Two DSA providers have refused to serve the participant
on the basis of a reasonable expectation that the participant's medical, nursing,
and social needs cannot be met adequately in the participant's residence.
(9)
The participant/responsible party or court-appointed
guardian refuses to sign the individual service plan (ISP). A referral will
be made to the county judge to determine whether the court-appointed guardian
is acting in the best interests of the CLASS participant.
(10)
The participant refuses to comply with his ISP/individual
program plan, including situations in which he refuses services and threatens
his own health and safety.
(11)
The participant or someone in the participant's
home deliberately threatens the health or safety of the service provider.
(12)
The participant is incarcerated for more than 30
days.
(13)
The participant has no need for habilitation services
as determined by the interdisciplinary team.
(14)
The participant or someone in the participant's
home has subjected the person providing services to sexual harassment.
(15)
The participant or someone in the participant's
home has a substantiated pattern of discrimination against the service provider(s)
on the basis of race, color, national origin, age, sex, disability, political
beliefs, or religion that has not improved with appropriate intervention.
(16)
The participant or someone in the participant's
home has a substantiated use of illegal drugs or has illegal drugs readily
available within sight of the service provider.
(17)
The participant fails to pay his qualified income
trust copayment.
(b)
Following approval by DHS, the case manager provides written
notice to the participant and provides the DSA of the effective date of termination
and provides the participant with written notice of the right to appeal.
(c)
If the participant appeals the denial within 12 days of
written notification, the case manager continues CLASS services until notification
of the decision by the DHS hearing officer. The case manager may not reduce
services until the outcome of the appeal is known. Services do not continue
during the appeal process in situations where the participant has been determined
to be a threat to the health and safety of himself or others.
§45.203.Automatic Suspension of Community Living Assistance and Support Services (CLASS).
The case management agency and direct services agency must automatically
suspend CLASS services to a participant when:
(1)
the participant is admitted to an institution. An institution
includes acute care hospital, state hospital, rehabilitation hospital, state
school, intermediate care facility for persons with mental retardation, or
a nursing home;
(2)
the participant temporarily leaves the service area
for vacations or other personal business unless special arrangements have
been authorized by the direct services agency or the Texas Department of Human
Services (DHS);
(3)
the participant dies;
(4)
the participant requests in writing that services
end;
(5)
the participant's physician refuses to sign orders
or rescinds existing orders for the service;
(6)
DHS denies the participant's eligibility;
(7)
the participant or someone in the participant's home
deliberately threatens the health or safety of the service provider;
(8)
DHS terminates the contract with the provider; or
(9)
the participant is incarcerated.
§45.205.Suspension of Community Living Assistance and Support Services for Cause.
The direct services agency and case management agency may suspend
services with approval by the Texas Department of Human Services and documentation
to support that one or more of the following has occurred:
(1)
The participant or someone in the participant's home sexually
harasses the service provider(s).
(2)
The participant or someone in the participant's home
has a pattern of discrimination against the service provider(s) on the basis
of race, color, national origin, age, sex, disability, political beliefs,
or religion that has not improved with appropriate intervention.
(3)
The participant or someone in the participant's home
openly uses illegal drugs or has illegal drugs readily available within sight
of the service provider.
§45.207.Notification of Suspension.
(a)
The direct services agency (DSA) must verbally notify
the case manager or staff in the case manager's office about the reason the
DSA agency suspended services within 24 hours after service suspension. Written
notification on the case information form must be sent to the case manager
within two days of service suspension.
(b)
The case manager performs any necessary face-to-face contacts
necessary to evaluate and document the reasons for suspension described in
§45.203(a)(3)-(5) and (7) of this title (relating to Automatic Suspension
of Community Living Assistance and Support Services) and §45.205(a)(1)-(3)
of this title (relating to Suspension of Community Living Assistance and Support
Services for Cause). The case manager sends to the Texas Department of Human
Services (DHS) Community Living Assistance and Support Services (CLASS) program
staff all written documentation provided by the DSA and case manager to substantiate
the suspension within five days from the suspension.
(c)
The case manager, DSA, and DHS CLASS program staff review
all written and verbal documentation provided by the DSA and other individuals
connected with the suspension within five days from the date the suspension
occurred.
(d)
If the documentation does not support the suspension of
services as determined by DHS CLASS program staff, the DSA will be notified
to reinstate services to the participant.
(e)
If the documentation does support the suspension of services
as determined by DHS CLASS program staff, the case manager will notify the
participant that CLASS services will be terminated as set out in §45.201
of this title (relating to Termination of Services to Current Participants)
and inform them of the right to appeal.
§45.209.Sanction.
The Texas Department of Human Services may sanction up to and including
contract termination any provider agency that has:
(1)
suspended services to a participant for a reason other
than what is allowed in §45.203 of this title (relating to Automatic
Suspension of Community Living Assistance and Support Services) or §45.205
of this title (relating to Suspension of Community Living Assistance and Support
Services for Cause); or
(2)
uses the information cited in §45.203 of this
title (relating to Automatic Suspension of Community Living Assistance and
Support Services) or §45.205 of this title (relating to Suspension of
Community Living Assistance and Support Services for Cause) to suspend a participant
when the provider agency knew or should have known that the cited information
did not apply to the participant.
§45.211.Waiting List.
The applicant is placed on the Community Living Assistance and Support
Services (CLASS) waiting list on a first-come, first-served basis. The applicant
must:
(1)
contact the Texas Department of Human Services CLASS administrative
assistant or program staff and provide enough information to complete the
CLASS application/summary of applicant's needs for services form; and
(2)
be responsible for the update of any information
such as address and telephone number; and
(3)
reside in the county where they are placing their
name on the waiting list if CLASS services are available in that county; or
(4)
place their name on the waiting list in the nearest
county in which CLASS services are available if CLASS services are not available
in the county in which they currently reside.
§45.213.Use of Non-Waiver Services.
Community Living Assistance and Support Services (CLASS) applicants
and participants must utilize all services available through other funding
sources. As a Medicaid program, the CLASS program is payor of last resort.
§45.215.Authorization of Services.
Units of service must be prior authorized on the individual service
plan to be eligible for reimbursement through the Community Living Assistance
and Support Services program except in cases of documented medical emergencies.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on
January 26, 1998.
TRD-9801125
Glenn Scott
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: March 9, 1998
For further information, please call: (512) 438-3765
40 TAC §§45.301, 45.303, 45.305, 45.307, 45.309, 45.311, 45.313, 45.315, 45.317, 45.319, 45.321, 45.323, 45.325, 45.327, 45.329, 45.331, 45.333, 45.335, 45.337, 45.339, 45.341, 45.343
The new sections are proposed 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 new sections implement the Human Resources Code, §§22.001-22.030
and §§32.001-32.042.
§45.301.Service Array for Community Living Assistance and Support Services (CLASS) Providers.
CLASS providers must provide the array of CLASS Services identified
in paragraphs (1-11) of this section in accordance with the CLASS individual
service plan form, through its own employees, subcontractors, or personal
service agreements with qualified individuals. Services include:
(1)
habilitation;
(2)
nursing;
(3)
physical therapy;
(4)
occupational therapy;
(5)
speech pathology;
(6)
psychological services;
(7)
adaptive aids/vehicle modifications;
(8)
minor home modifications;
(9)
respite care (in-home);
(10)
respite (out-of-home); and
(11)
case management.
§45.303.Cost Effective Purchases of Adaptive Aids.
(a)
For any single adaptive aid expenditure costing less than
$500, the direct services agency (DSA) must:
(1)
determine and document the needs and preferences of the
participant for the adaptive aid;
(2)
document the necessity for the adaptive aid;
(3)
consider renting the adaptive aid on a short-term
basis if the participant's needs or desires cannot be accurately determined
at the time of the assessment;
(4)
obtain comparative price quotes or use a price list
to document prices of the adaptive aid from a minimum of three suppliers or
annually select a supplier based on the lowest prices from the quotes/price
list for the main types of adaptive aids that the agency has been purchasing;
(5)
document the justification of the selection, including
cost, delivery time of item, record of quality services, access to loaners
during repairs, repair history, and warranties. For those suppliers selected,
document in the vendor records the names of the suppliers from whom all quotes/price
lists were obtained, the amount of the quotes/price lists, the items for which
the quotes/price lists were requested, and the dates the quotes/price lists
were obtained; and
(6)
have a nurse, therapist, or other appropriate professional
conduct a home visit within 14 Texas Department of Human Services (DHS) work
days from the date of delivery to verify the adaptive aid meets the needs
of the participant, that orientation was provided to the participant in the
use of the adaptive aid, and document completion of purchase and satisfaction
of the participant.
(b)
For any single adaptive aid expenditure costing $500 or
more, in addition to complying with the requirements listed in subsection
(a)(1)-(6) of this section, the DSA must:
(1)
obtain written specifications for the adaptive aid from
a licensed occupational therapist, physical therapist, speech pathologist,
or other appropriate professional specializing in assessments for assistive
technology or adaptive aids;
(2)
obtain a minimum of three written bids if not using
price lists or price quotes as identified under subsection (a)(5)-(6) of this
section, and document the justification of the selection including cost, delivery
time of item, record of quality services, access to loaners during repairs,
repair history, and warranties; and
(3)
document justification when not accepting the lowest
bid, such as, delivery time of item, record of quality services, access to
loaners during repairs, repair history, and warranties.
§45.305.Time Frames for Adaptive Aids Costing Less Than $500.
(a)
The direct services agency (DSA) must ensure purchase
and delivery of any adaptive aid/vehicle modification within 14 Texas Department
of Human Services (DHS) work days from the date purchase of the adaptive aid/vehicle
modification is authorized, using either the effective date of the individual
service plan form, or the date the form is received, whichever is later.
(b)
If the DSA cannot ensure delivery of an adaptive aid/vehicle
modification within 14 DHS work days from the date of receipt of DHS's authorization,
before the 14th day the agency must submit to the case manager the case information
form containing an explanation why the adaptive aid/vehicle modification cannot
be delivered within the required time frame and a new proposed date for delivery.
§45.307.Time Frames for Adaptive Aids Costing $500 or More.
(a)
The direct services agency (DSA) must ensure purchase
and delivery of any adaptive aid/vehicle modification within 30 Texas Department
of Human Services (DHS) work days from the date purchase of the adaptive aid/vehicle
modification is authorized, using either the effective date of the individual
service plan form, or the date the form is received, whichever is later.
(b)
If the DSA cannot ensure delivery of an adaptive aid/vehicle
modification within 30 work days from the date of receipt of DHS's authorization,
before the 30th day the agency must submit to the case manager the case information
form containing an explanation why the adaptive aid/vehicle modification cannot
be delivered within the required time frame and including a new proposed date
for the delivery.
§45.309.Cost Effective Purchases of Medical Supplies.
The direct services agency must:
(1)
prior to the selection of medical supplies, obtain comparative
price quotes or use a price list to document prices of the medical supplies
from a minimum of three suppliers;
(2)
at least annually select supplies based on the lowest
prices from the quotes/price list for the main types of supplies that the
agency has been purchasing, and document the justification of the selection
including cost, delivery time of item and record of quality services; and
(3)
document the basis for selection and for those selected,
document in the vendor records the names of the suppliers from whom all quotes/price
lists were obtained, the amount of the quotes/price lists, the items for which
the quotes/price lists were requested, and the dates the quotes/price lists
were obtained.
§45.311.Time Frames for Medical Supplies.
(a)
The direct services agency (DSA) is responsible for assuring
the purchase and delivery of any authorized medical supplies within five Texas
Department of Human Services (DHS) work days from the waiver service initiation
date.
(b)
On existing cases, the DSA must deliver medical supplies
within five DHS work days from the date purchase of the supplies is authorized,
counting from the effective date of the individual service plan form, or the
date the form is received, whichever is later.
(c)
If the DSA cannot ensure delivery of a medical supply
within five DHS work days from the date of receipt of DHS's authorization,
the DSA must submit the case information form to the case manager before the
fifth day, containing an explanation why the medical supply cannot be delivered
within the required time frame and a new proposed date for the delivery.
§45.313.Time Frames for Emergency Purchases of Medical Supplies.
If the direct services agency (DSA) or case manager identifies a need
for the emergency purchase and delivery of a medical supply, the DSA must
deliver the item within two Texas Department of Human Services work days from
the date that the need for the medical supply is identified.
§45.315.Medical Supplies on Hand.
At least twice a year, the direct services agency must verify the quantity
of the medical supplies that the participant has on hand, and if necessary,
adjust the service plan, or modify the delivery schedule for the medical supplies.
The results of this verification must be documented in the case conference
notes.
§45.317.Freight Charges for Medical Supplies and Adaptive Aids.
The direct services agency must assure that if medical supplies or
adaptive aids are delivered to the participant by means of any commercial
carrier, such as United Parcel Services or the United States Postal Service,
the most cost-effective carrier is used. Overnight delivery should not be
used unless it is an emergency purchase that cannot be purchased locally and
delivered by the next day after determining the need.
§45.319.Cost Effective Purchases of Minor Home Modifications.
The direct services agency (DSA) must:
(1)
determine and document the needs and preferences of the
participant for the minor home modification;
(2)
document the necessity for the minor home modification;
(3)
obtain written specifications for any project expenditure
costing $1000 or more which will be used to procure bids and validate the
completed job;
(4)
request a minimum of three written bids based on
the specifications for any single expenditure costing $1000 or more;
(5)
select a bidder to provide the modification and document
the justification when not selecting the lowest bid for the selection, including
cost, completion time of modification, record of quality service, timely response
to repair requests, and warranties; and
(6)
inspect the minor home modification for completion,
compliance with the written specifications, if applicable, and quality of
workmanship within seven Texas Department of Human Services (DHS) work days
from the date the work is completed.
(A)
The DSA must ensure that a qualified person inspects completed
work to ensure all work was done to written specifications, if applicable,
and the Texas Accessibility Standards.
(B)
The inspector cannot be the attendant.
(C)
Once the inspection is concluded and the modification is
completed, the DSA must send the case information form to the case manager
within seven DHS work days from the date the modification is completed.
§45.321.Time Frames for Minor Home Modifications Costing $1000 or More.
(a)
The Community Living Assistance and Support Services direct
services agency (DSA) is responsible for assuring the completion of all minor
home modifications within 60 Texas Department of Human Services (DHS) work
days from the date the minor home modification is authorized, counting from
either the effective date of the individual service plan form, or the date
the form is received, whichever is later.
(b)
If the modification cannot be completed within 60 DHS
work days from the date the minor home modification is authorized, the DSA
must submit the case information form to the case manager prior to the 60th
day, explaining why the modification cannot be completed on time and including
a new projected date of completion for the modification.
§45.323.Time Frames for Minor Home Modifications Costing Less Than $1000.
(a)
The Community Living Assistance and Support Services direct
services agency (DSA) is responsible for assuring the completion of all minor
home modifications within 30 Texas Department of Human Services (DHS) work
days from the date the minor home modification is authorized, counting from
either the effective date of the individual service plan form, or the date
the form is received, whichever is later.
(b)
If the modification cannot be completed within 30 DHS
work days from the date the minor home modification is authorized, the DSA
must submit the case information form to the case manager prior to the 60th
day, explaining why the modification cannot be completed on time and including
a new projected date of completion for the modification.
§45.325.Landlord Approval for Minor Home Modifications.
Prior to beginning the home modifications, the direct services agency
must obtain written approval from the owner of the building for the proposed
modifications if the rental agreement does not provide such approval. Additionally,
the direct services agency must obtain any applicable building permits prior
to starting the home modifications.
§45.327.Accountability for Minor Home Modifications.
If a minor home modification requires repair or replacement within
one year of completion, the Community Living Assistance and Support Services
direct service agency must repair or replace the minor home modification without
billing the Texas Department of Human Services or the participant, unless
(1)
the finished modification met appropriate specifications
and bid requirements agreed upon before the job was started; or
(2)
the repair or replacement is required due to circumstances
beyond the control of the participant or participant's family members, or
due to abuse by the participant or family members.
§45.329.Completion of Minor Home Modifications.
The Community Living Assistance and Support Services direct services
provider must maintain in the client record a copy of the fully executed receipt
for the minor home modification attesting to the quality of the workmanship
and whether or not the participant is satisfied.
§45.331.Billable Units.
The following activities may be billed through the Community Living
Assistance and Support Services (CLASS) program by the CLASS providers.
(1)
Nursing services:
(A)
direct participant contact;
(B)
participation on the interdisciplinary team (IDT):
(i)
when the participant has an identified need for the service;
and
(ii)
for actual time spent in the capacity of the respective
discipline. Time spent as the official representative of the direct services
agency (DSA) must be billed as habilitation;
(C)
time spent in delegating, training, and supervising attendants
and substitutes in the delivery of nursing tasks that have been delegated;
(D)
time spent in providing nursing tasks that had been delegated
to an attendant in order to prevent a service break, if no attendant can be
found;
(E)
time spent in training family members, neighbors, and
other informal support providers to provide needed nursing or personal care
tasks; and
(F)
time spent in performing the annual reassessment, which
includes actual participant contact and documentation of assessment forms
and care plan.
(2)
Specialized therapy (occupational therapy, physical
therapy, speech pathology):
(A)
direct participant contact;
(B)
participation on the IDT:
(i)
when the participant has an identified need for the service;
and
(ii)
for actual time spent in the capacity of the respective
discipline. Time spent as the official representative of the DSA must be billed
as habilitation; and
(C)
time for doing evaluations for specialized equipment.
(3)
Habilitation services, which include:
(A)
assisting with the performance of personal care tasks;
(B)
performing delegated health-related tasks;
(C)
training the participant to perform the activities of
daily living as identified in the habilitation plan;
(D)
providing reinforcement of therapy goals;
(E)
participating in IDT meetings;
(F)
accompanying the participant to habilitative activities
as listed in the participant's individual program plan; and
(G)
performing chores services for the participant.
(4)
Adaptive aids/vehicular modifications and minor
home modifications - delivery of a prior approved, medically necessary item
or minor home modification.
(A)
Billable items for medical supplies include the invoice
cost, including freight charges and sales tax, of the medical supply and the
requisition fee.
(B)
Billable items for minor home modifications include the
invoice cost of labor, materials, sales tax, and the requisition fee.
(C)
Billable items for adaptive aids include the invoice cost
of the item, including freight charges and sales tax, and the requisition
fee.
(5)
In-home respite - relief for the unpaid primary
caregiver.
(6)
Out-of-home respite - relief for the unpaid primary
caregiver.
§45.333.Non-Billable Time and Activities.
The following activities are not considered billable activities under
the Community Living Assistance and Support Services (CLASS) program for CLASS
providers:
(1)
supervision of habilitation attendants performing personal
assistance tasks, unless the attendant is delivering nursing tasks delegated
by a registered nurse;
(2)
phone calls, letters, or meetings with the Texas
Department of Human Services (DHS) or community resources;
(3)
administrative meetings or staff meetings;
(4)
in-service training, continuing education, or conferences;
(5)
employee conferences or evaluations;
(6)
filing claims for services;
(7)
traveling to and from the participant's home;
(8)
processing paperwork, completing records or reports,
except for the annual reassessment;
(9)
home modifications or adaptive aids/vehicular modifications
that are not listed in the CLASS Provider Manual as covered items nor approved
by authorized DHS staff. Billable items on the invoice include the actual
cost of obtaining specifications, labor, materials, delivery and inspection
costs;
(10)
collateral contact when that contact is between:
(A)
provider employees; and
(B)
individuals providing services to participants under:
(i)
personal service agreements with the CLASS provider; or
(ii)
subcontracts with other CLASS agencies;
(11)
billing for services that are considered
to be duplicate services or mutually exclusive, as identified in §45.335
of this title (relating to Mutually Exclusive Services);
(12)
"down-time" such as illness, holidays, vacation
time, etc;
(13)
collateral contact (telephone or face-to-face) to
assist or discuss a specific participant (for example, helping access community
services); and
(14)
leaving a phone message on a recorder, or leaving
a message with anyone other than the participant or parent/legal guardian.
§45.335.Mutually Exclusive Services.
The following waiver services are considered to be mutually exclusive
and are not allowed under the waiver.
(1)
A participant receiving in-home respite or out-of-home
respite may not receive habilitation for the same period of time.
(2)
A participant residing in an institutional setting
may not receive any Community Living Assistance and Support Services (CLASS)
services.
(3)
CLASS cannot provide a service that is available
to the participant through a non- waiver source.
§45.337.Service Claim Limits.
(a)
A maximum of four hours may be billed under nursing services
by the registered nurse to decide whether or not to delegate a nursing task
to a direct services agency (DSA) attendant.
(b)
In order to avoid service breaks, the Community Living
Assistance and Support Services DSA may bill for authorized habilitation units
performed by a licensed nurse for a maximum period of 10 days during the participant's
individual service plan (ISP) effective period:
(1)
The hours performed by the nurse may be billed at the
nursing rate only if there are no attendants available to perform the needed
delegated nursing tasks and only licensed nurses can be recruited.
(2)
The documentation must include all efforts the provider
agency made to find an attendant to deliver delegated nursing tasks to prevent
a break in service.
(c)
Components of minor home modifications cannot be billed
without an invoice or in more than three billings.
§45.339.Claims and Service Delivery Records.
(a)
The Community Living Assistance and Support Services (CLASS)
provider is liable for monetary exceptions if the monthly claims do not correspond
with the provider's service authorization and service delivery records.
(b)
The provider must maintain the following records:
(1)
approval of application of CLASS form;
(2)
CLASS individual service plan form pages 1 and 2;
(3)
CLASS documentation of services delivered form for
any billing submitted for reimbursement or a facsimile previously approved
by the waiver manager;
(4)
bids for home modifications costing $500 or more;
(5)
bids for any single expenditure for adaptive aids/vehicle
modifications costing $500 or more and comparative price quotes or a price
list;
(6)
annual comparative price quotes/lists for the purchase
of medical supplies;
(7)
annual comparative price quotes/lists for the purchase
of adaptive aids;
(8)
receipts from the contractor for minor home modifications
provided, documenting the date of completion and the cost of the modification;
(9)
any applicable building permits;
(10)
documentation of completion of purchase;
(11)
specifications for minor home modifications;
(12)
receipts for the completed minor home modification
from the CLASS direct services agency (DSA). The minor home modification must
be completed before billing the Texas Department of Human Services for the
modification and:
(A)
the DSA must attest that the workmanship is acceptable;
(B)
the DSA must attest that the modification is completed
according to the specifications of the bid, if applicable;
(C)
the CLASS documentation of services delivered form must
be signed by the DSA representative;
(D)
a final inspection sheet must be signed by the participant
or the responsible party, the DSA representative and an inspector, stating
that the home modifications were completed in accordance to the specification
sheet; and
(E)
document whether or not the participant is satisfied with
the home modification;
(13)
documentation of the annual selection of a
supplier;
(14)
copies of case information forms sent to the case
manager upon completion of the minor home modification;
(15)
receipts for the purchase of adaptive aids/vehicle
modifications showing the cost of the item, the date the item was delivered
to the participant, and signed confirmation delivery by the participant or
responsible party;
(16)
written approval from the homeowner for modifications
to be made;
(17)
documented justification for not accepting the lowest
bids or quotes for adaptive aids, medical supplies, vehicle modifications
or minor home modifications, where applicable; and
(18)
documentation of the basis of the annual selection
of a supplier if using price lists/price quotes.
§45.341.Monetary Exceptions.
(a)
Providers of Community Living Assistance and Support Services
(CLASS) must document on the CLASS documentation of services delivered form
or an approved facsimile for services reimbursed on an hourly basis as authorized
on the individual service plan, including:
(1)
box 2 must show the month and year service was delivered;
(2)
box 10 must show what type of service was delivered;
(3)
section D must record the units of service delivered;
(4)
section D must indicate the dates of service delivery;
(5)
section E must show the name and dated signature
of the individual providing waiver services or the signature of the designated
representative; and
(6)
the individual providing the service or designated
representative must sign and date the CLASS documentation of services delivered
form with the month, day, and year.
(b)
If documentation does not support the monthly claims,
the CLASS provider may be liable for monetary exceptions.
(c)
The CLASS provider must designate a timekeeper to verify
that the service units recorded on the CLASS documentation of services delivered
form were worked and that the tasks assigned were completed. The timekeeper
may be a registered nurse supervisor.
(d)
The employee must enter the daily total time and monthly
total hours. The CLASS documentation of services delivered form, or an approved
facsimile, may be signed by the direct services agency (DSA) employee who
has designated signature authority if an employee is unable to complete and
sign the CLASS documentation of services delivered form. The CLASS provider
must document in writing the reasons the employee is unable to complete and
sign the CLASS documentation of services delivered form, or the approved facsimile,
and must document in writing who is authorized to make these entries. The
documentation may be a written statement that includes the following:
(1)
the employee's name;
(2)
a brief summary of what portion of the CLASS documentation
of services delivered form, or the approved facsimile, the employee is unable
to complete;
(3)
the name and relationship of the person who has been
designated to complete the form for the employee; and
(4)
the authorized employee's signature and date.
(e)
The timekeeper may add the monthly total of time with no
exception taken, so long as the provider completes the daily total time.
§45.343.Unallowable Services.
The Community Living Assistance and Support Services program does not
provide the following items to participants:
(1)
purchase or long-term lease of vehicles, or vehicle repair
and/or maintenance;
(2)
past due expenses;
(3)
income taxes;
(4)
automobile, life, or accident insurance;
(5)
death benefits, burial policies, or funeral expenses;
(6)
costs for allowable services that have not been prior
authorized;
(7)
food, shelter, utilities, general home repairs, electrical
upgrades from 110 volt to 220 volt outlets, major home renovations, remodeling,
home furnishings, and yard work;
(8)
items or services covered by other third-party resources
such as private insurance, Medicare, or other Medicaid benefits;
(9)
school tuition or fees, or equipment/items/services
that are provided through the public school system; or
(10)
swimming pools or swimming pool repairs, maintenance,
or supplies.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of the Secretary of State, on
January 26, 1998.
TRD-9801126
Glenn Scott
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: March 9, 1998
For further information, please call: (512) 438-3765
40 TAC §45.401, §45.403
The new sections are proposed 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 new sections implement the Human Resources Code, §§22.001-22.030
and §§32.001-32.042.
§45.401.Administrative Errors.
(a)
A recoupment of 12% of the paid unit rate is the administrative
error exception for services billed on an hourly basis. It represents the
administrative portion of the rate and is applied to the unit(s) of service
on the documentation reviewed in the Community Living Assistance and Support
Services (CLASS) program. This exception is not extrapolated.
(b)
Administrative errors include, but are not limited to,
the items in paragraphs (1)-(3) of this subsection:
(1)
Administrative errors on the Texas Department of Human
Services's (DHS) documentation of services delivered form, or the prior approved
facsimile, include the following:
(A)
The provider agency leaves the month and year of service
blank in item 2, section A. DHS applies the error to the total number of units
documented on the time sheet.
(B)
The timekeeper fails to enter a date of signature to certify
the total number of hours the attendant, nurse, therapist, or other professional
worked. DHS applies the error to the total number of units documented on the
time sheet.
(C)
The timekeeper corrects the date of signature but fails
to initial the correction. DHS applies the error to the number of units reimbursed
after the earliest signature date.
(D)
The timekeeper enters an illegible date of signature or
makes an illegible correction to the date. DHS applies the error to the total
number of units documented on the time sheet.
(E)
The timekeeper enters a date of signature that is before
the date of the last day services are delivered. DHS applies the error to
the total number of units reimbursed after the signature date.
(F)
The timekeeper fails to sign CLASS documentation of services
delivered form. DHS applies the error to the total number of units documented
on the time sheet.
(G)
The timekeeper uses a signature stamp, but fails to initial
the stamped signature. DHS applies the error to the total number of units
documented on the time sheet.
(H)
The attendant, nurse, therapist, other professional, and/or
timekeeper uses liquid paper/correction fluid to correct an entry in the record
of time, signature, or date portion of the documentation of services delivered
form. DHS applies the error to the total number of units documented on the
time sheet. If the liquid paper/correction fluid is used only on a daily entry
in the record of time, DHS applies the error only to the total number of units
reimbursed for that day.
(I)
The attendant, nurse, therapist, other professional, and/or
timekeeper makes an illegible entry in or an illegible correction to any portion
of the record of time column. DHS applies the error to the total number of
units reimbursed for the days in which entries are illegible.
(J)
The attendant fails to initial an increase in the daily
time or the monthly total of hours for the pay period. DHS applies the error
to the number of units reimbursed in excess of the original entry.
(K)
The attendant, nurse, therapist, other professional, or
other agency representative fails to sign the documentation of services delivered
form or approved facsimile. DHS applies the error to the total number of units
documented on the time sheet.
(L)
The provider agency uses a form that has not been approved
by DHS. DHS applies the error to the total number of units reimbursed while
using something other than CLASS documentation of services delivered form
or an approved facsimile.
(M)
DHS reimburses the provider agency for nursing, therapies,
psychological, habilitation, out-of-home respite, in-home respite, adaptive
aids/vehicle modifications or home modifications but a valid authorization
individual service plan (ISP) form, pages 1-2 and all pertinent amendments
signed by the case manager, is missing for the period reimbursed to the agency.
DHS applies the error to the total number of units of nursing, therapies,
habilitation, etc. claimed and not covered by an valid ISP.
(N)
DHS reimburses the provider agency for nursing services,
but CLASS documentation of services delivered form lists "supervisory visit"
in the comments section, without specifying that it is a nursing visit to
supervise the delivery of delegated tasks, and there is no other documentation
available that the nurse provided nursing services during the visit.
(O)
The direct services agency (DSA) begins home modification
procurement without using the bid specifications and materials list as approved
by the Interdisciplinary Team.
(2)
The following items are administrative errors
resulting in recoupment of the entire requisition fee. The recoupment amount
represents the administrative cost of the requisition fee.
(A)
There is no documentation of services delivered form,
but there is a receipt for the purchase of adaptive aids/vehicle modifications
or the completion of the minor home modification.
(B)
Bids were required for the purchase of an adaptive aid/vehicle
modification or the completion of a minor home modification and bids were
not obtained.
(C)
DHS reimburses the provider for the purchase of medical
supplies, but there is no documentation available that price list/price quotes
were obtained from three suppliers for the items for which the provider has
been reimbursed, or the price lists/price quotes were obtained more than 12
months before the purchase.
(D)
DHS reimburses the provider for the purchase of adaptive
aids, but there is no documentation available that price list/price quotes
were obtained from three suppliers for the items for which the provider has
been reimbursed, or there is no documentation available that the supplier
selected on an annual basis to deliver the adaptive aids had the lowest prices
for the main type of adaptive aids the agency has purchased.
(3)
Administrative errors for the case management
agency (CMA) include, but are not limited to, the following:
(A)
The case management agency does not provide a completed
ISP and an updated individual program plan within seven days from an interdisciplinary
team meeting which results in the DSA providing services that at a later date
are rejected because the CMA failed to submit the ISP for DHS authorization.
(B)
The DSA has the case information form on record
which indicates that the DSA had requested corrected service updates be made
to the participant's ISP prior to providing the service and the CMA provided
authorization for that service on the case information form but failed to
submit a corrected ISP for DHS authorization.
§45.403.Financial Errors.
(a)
A reduction of 100% of the paid unit rate is the financial
error exception. This exception is applied to the unit(s) of service on the
documentation reviewed in the Community Living Assistance and Support Services
(CLASS) program. This exception is not extrapolated.
(b)
Financial errors include, but are not limited to, the
following:
(1)
The Texas Department of Human Services (DHS) reimburses
the provider agency for services, but the CLASS documentation of services
delivered form, or approved facsimile, is missing for the period for which
services are reimbursed. DHS applies the error to the total number of units/dollars
reimbursed for the pay period.
(2)
The attendant, nurse, therapist, or other professional
leaves the entire record of time section blank. DHS applies the error to the
total number of units reimbursed for the pay period.
(3)
DHS reimburses the provider agency for hours that
exceed the authorization given by DHS.
(A)
For habilitation services, the maximum that may be reimbursed
for a month is the monthly amount authorized on the CLASS Individual Service
Plan/Individual Program Plan (ISP/IPP) plus any hours not used due to participant
stay while in a hospital or in a rehabilitation hospital.
(B)
For nursing services, the maximum that may be reimbursed
is the number of hours listed in the ISP form, item 16.
(C)
DHS applies the error to the total number of units reimbursed
in excess of the units authorized by DHS, unless purchased following emergency
procedures.
(4)
DHS reimburses the provider agency for any waiver
service that is not identified on the participant's ISP form, unless purchased
following emergency procedures. DHS applies the error to the entire amount
reimbursed for such services.
(5)
DHS reimburses the provider agency for hours that
exceed the total number of hours recorded on the documentation of services
delivered form or approved facsimile. DHS applies the error to the total number
of units reimbursed in excess of the units recorded on the timesheet. If the
sum of the daily total of hours does not equal what is written in the monthly
total blank, the lesser of the two totals is used to calculate the total number
of hours subject to the error.
(6)
The provider makes a claim for nursing, physical
therapy, occupational therapy, or speech pathology services, but a valid physician's
order is missing. DHS applies the error to the total number of units claimed
and not covered by a valid order.
(7)
DHS reimburses the provider agency for a claim for
service, other than the initial administrative fee, delivered prior to the
eligibility effective date on the ISP form. DHS applies the error to the total
number of units reimbursed for such services.
(8)
DHS reimburses the provider agency for any hours
that consisted of non-billable time and activities as identified in §45.333
of this title (relating to Non-Billable Time and Activities). DHS applies
the error to the total number of units reimbursed for such services.
(9)
DHS reimburses the provider agency for more than
fours hours of nursing used to decide whether to delegate to the direct services
agency attendant. DHS applies the error to the total number of units reimbursed
for such services.
(10)
DHS reimburses the provider agency for more than
10 days during the participant's ISP year for nursing services being performed
by a nurse to prevent service breaks caused by the attendant not being available
to provide delegated nursing tasks. DHS applies the error to the total number
of units reimbursed in excess of the 10 day maximum for such services.
(11)
DHS reimburses the provider agency for an amount
in excess of the amount documented on the receipt for adaptive aids/vehicle
modifications or minor home modifications. DHS applies the error to the total
number of dollars reimbursed in excess of the amount on the receipt, plus
the appropriate dollar amount of the requisition fee, if applicable.
(12)
There is no documentation for the completion of
purchase and there is no receipt for the purchase of adaptive aids/vehicle
modifications or for the completion of minor home modifications for which
the provider has been reimbursed. DHS applies the error to the total number
of dollars reimbursed for adaptive aids/vehicle modifications or minor home
modifications in question, including the requisition fee.
(13)
DHS reimburses the provider agency for any waiver
service that is not authorized on the participant's ISP form, unless the service
was provided as a result of an emergency and is supported by backup documentation
supplied within seven days from the date the emergency was determined.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of the Secretary of State, on
January 26, 1998.
TRD-9801127
Glenn Scott
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: March 9, 1998
For further information, please call: (512) 438-3765
1915(c) Medicaid Home and Community-based Waiver Services for Aged and
Disabled Adults Who Meet Criteria for Alternative to Nursing Facility Care
40 TAC §§48.6003, 48.6041, 48.6042, 48.6044, 48.6046, 48.6048, 48.6050, 48.6052, 48.6054, 48.6056, 48.6058, 48.6060, 48.6062, 48.6064, 48.6066, 48.6068, 48.6070, 48.6072, 48.6074, 48.6076, 48.6078, 48.6080, 48.6082, 48.6084, 48.6086, 48.6088, 48.6090
The Texas Department of Human Services (DHS) proposes an
amendment to §48.6003, concerning client eligibility criteria; and new
§48.6041, concerning termination of services to current participants;
§48.6042, concerning automatic suspension of Community Based Alternatives
(CBA) services; §48.6044, concerning suspension of CBA services for cause;
§48.6046, concerning sanctions related to service suspension; §48.6048,
concerning notification of suspension; §48.6050, concerning service array
for Home and Community Support Services; §48.6052, concerning cost-effective
purchases of adaptive aids; §48.6054, concerning time frames for adaptive
aids costing less than $500; §48.6056, concerning time frames for adaptive
aids costing $500 or more; §48.6058, concerning cost-effective purchases
of medical supplies; §48.6060, concerning time frames for medical supplies;
§48.6062, concerning time frames for emergency purchases of medical supplies;
§48.6064, concerning medical supplies on hand; §48.6066, concerning
freight charges for medical supplies and adaptive aids; §48.6068, concerning
cost-effective purchases of minor home modifications; §48.6070, concerning
time frames for minor home modifications costing $1000 or more; §48.6072,
concerning time frames for minor home modifications costing less than $1000;
§48.6074, concerning landlord approval for minor home modifications;
§48.6076, concerning accountability for minor home modifications; §48.6078,
concerning billable units; §48.6080, concerning non- billable time and
activities; §48.6082, concerning mutually exclusive services; §48.6084,
concerning service claim limits; §48.6086, concerning claims and service
delivery records; §48.6088, concerning monetary exceptions; and §48.6090,
concerning fiscal monitoring; in its Community Care for Aged and Disabled
chapter. The purpose of the amendment and new sections is to clarify when
services to a participant must be suspended and when services must be terminated.
The process for suspension or termination of services is defined. Also defined
are the documentation requirements for provider payment, specifying what constitutes
administrative and financial errors and establishing provider sanctions for
errors identified. A sanction of 100% of the paid unit rate is applied to
financial errors identified on the documentation reviewed, eliminating payment
for services not authorized or not delivered according to program rules. A
sanction of 12% of the unit rate is applied to the paid units with administrative
errors on the documentation reviewed reducing payment for administrative services
not performed. Administrative and financial errors are not extended beyond
the documentation reviewed. Compliance with these rules improves fiscal accountability.
Eric M. Bost, commissioner, has determined that for the first five- year
period the sections are in effect there will be no fiscal implications for
state or local government as a result of enforcing or administering the sections.
Mr. Bost also has determined that for each year of the first five years
the sections are in effect the public benefit anticipated as a result of enforcing
the sections will be to initiate a sanction of 12% for administrative errors,
which is the percentage of the reimbursement paid by the department that is
attributed to administration by the provider, and initiate a sanction of 100%
for financial errors, eliminating payment for services that are not authorized
and reducing the cost of services that are not delivered according to program
rules and policies as established in current rules. There will be no effect
on small businesses. There is no anticipated economic cost to persons who
are required to comply with the proposed sections.
Questions about the content of this proposal may be directed to Gerardo
Cantu at (512) 438-3693 in DHS's Community Care Section. Written comments
on the proposal may be submitted to Supervisor, Rules and Handbooks Unit-010,
Texas Department of Human Services E-205, P.O. Box 149030, Austin, Texas 78714-9030,
within 30 days of publication in the
Texas Register
.
The amendment and new sections are proposed 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 and new sections implement 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)-(2)
(No change.)
[
(3)
[
(4)
[
(5)
[
(6)
[
(A)
Adaptive Aids and Medical Supplies service category cannot
exceed $10,000 per individual per Individual Plan of Care year without approval
by the waiver manager;
(B)
minor home modifications service category cannot exceed
$7500 per individual without approval by the waiver manager;
(C)
respite care cannot exceed 30 days per individual per
Individual Plan of Care year without approval by the waiver manager;
(7)
[
(8)
[
(9)
[
(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)-(e)
(No change.)
§48.6041.Termination of Services to Current Participants.
(a)
The case manager must terminate Community Based Alternatives
(CBA) services if one or more of the following circumstances occur.
(1)
The participant leaves the state for more than 90 days.
(2)
The participant dies.
(3)
The participant has resided in an institutional setting
for longer than 120 days. An institution includes an acute care hospital,
state hospital, rehabilitation hospital, state school, nursing home or intermediate
care facility for persons with mental retardation or related conditions (ICF-MR/RC).
DHS will retain authority to extend this time in extraordinary circumstances.
(4)
The participant requests that services end and the
request is documented in writing.
(5)
The participant is not financially eligible for Medicaid
benefits.
(6)
The participant does not meet the medical necessity
(MN) criteria for nursing facility care.
(7)
The estimated cost of the CBA services necessary
to adequately meet the needs of the participant exceeds his CBA cost ceiling.
(8)
Two providers of the same category have refused to
serve the participant on the basis of a reasonable expectation that the participant's
medical, nursing, and social needs cannot be met adequately in the participant's
residence.
(9)
The participant\responsible party or court-appointed
guardian refuses to sign the Individual Service Plan (ISP). A referral will
be made to the County Judge to determine whether the court-appointed guardian
is acting in the best interests of the CBA participant.
(10)
The participant refuses to comply with his ISP,
including situations in which he refuses services and threatens his own health
and safety.
(11)
The participant refuses to release relevant medical
information necessary for the ISP.
(12)
The participant or someone in the participant's
home deliberately threatens the health or safety of the service provider or
the Texas Department of Human Services (DHS) staff.
(13)
The participant is incarcerated for more than 30
days.
(14)
The participant or someone in the participant's
home has subjected the person providing services to sexual harassment.
(15)
The participant or someone in the participant's
home has a substantiated pattern of discrimination against the service provider(s)
on the basis of race, color, national origin, age, sex, disability, political
beliefs, or religion that has not improved with appropriate intervention.
(16)
The participant or someone in the participant's
home has a substantiated use of illegal drugs or has illegal drugs readily
available within sight of the service provider.
(17)
The participant fails to pay his room and board
expenses or co- payment in the adult foster care (AFC) or assisted living/residential
care (AL/RC) setting.
(18)
Participant fails to pay his qualified income trust
co-payment.
(b)
The case manager provides written notice to the participant
of the effective date of termination and provides the participant with the
written notice of the right to appeal.
(c)
If the participant appeals the denial within 12 days of
notification, the case manager continues CBA services until notification of
the decision by the DHS hearing officer. The case manager may not reduce services
until the outcome of the appeal is known. Services do not continue during
the appeal process when the reason for denial is that the participant threatens
the health and safety of himself or others.
§48.6042.Automatic Suspension of Community Based Alternatives (CBA) Services.
The Home and Community Support Services (HCSS) agency must automatically
suspend CBA services to a participant when:
(1)
the participant is admitted to an institution. An institution
includes acute care hospital, state hospital, rehabilitation hospital, state
school, or a nursing home;
(2)
the participant temporarily leaves the contracted
service area for vacations or other personal business unless special arrangements
have been authorized by the HCSS agency;
(3)
the participant dies;
(4)
the participant requests in writing that services
end and the request is documented in writing;
(5)
the participant's physician refuses to sign orders
or rescinds existing orders for the service;
(6)
the Texas Department of Human Services (DHS) denies
the participant's eligibility;
(7)
the participant or someone in the participant's home
deliberately threatens the health or safety of the service provider;
(8)
DHS terminates the contract with the provider; or
(9)
the participant is incarcerated.
§48.6044.Suspension of Community Based Alternatives Services for Cause.
The Home and Community Support Services (HCSS) agency may suspend services
if one or more of the following occur:
(1)
the participant or someone in the participant's home sexually
harasses the service provider(s);
(2)
the participant or someone in the participant's home
has a pattern of discrimination against the service provider(s) on the basis
of race, color, national origin, age, sex, disability, political beliefs,
or religion that has not improved with appropriate intervention; or
(3)
the participant or someone in the participant's home
openly uses illegal drugs or has illegal drugs readily available within sight
of the service provider.
§48.6046.Sanctions Related to Service Suspension.
The Texas Department of Human Services (DHS) may sanction up to and
including contract termination any provider agency that:
(1)
suspends services to a participant for a reason other
than what is allowed in §48.6042 of this title (relating to Automatic
Suspension of Community Based Alternatives Services) and §48.6044 of
this title (relating to Suspension of Community Based Alternatives for Cause);
or
(2)
uses the information cited in §48.6042 of this
title (relating to Automatic Suspension of Community Based Alternatives Services)
and §48.6044 of this title (relating to Suspension of Community Based
Alternatives for Cause) to suspend a participant when the provider agency
knew or should have known that the cited information did not apply to the
participant.
§48.6048.Notification of Suspension.
No later than the first Texas Department of Human Services work day
after services are suspended, the Home and Community Support Services (HCSS)
agency must verbally notify the case manager or staff in the case manager's
office about the reason the HCSS agency suspended services. Written notification
on the case information form must be sent to the case manager within seven
calendar days of service suspension.
§48.6050.Service Array for Home and Community Support Services (HCSS).
HCSS agencies must provide the array of home and community support
services identified in paragraphs (1)-(9) of this section in accordance with
the individual service plan through their own employees, subcontractors, or
personal service agreements with qualified individuals. Services include:
(1)
personal assistance services;
(2)
nursing services;
(3)
physical therapy;
(4)
occupational therapy;
(5)
speech pathology services;
(6)
adaptive aids;
(7)
medical supplies;
(8)
minor home modifications; and
(9)
respite care (in-home).
§48.6052.Cost-Effective Purchases of Adaptive Aids.
(a)
For any single adaptive aid expenditure costing less than
$500, the Home and Community Support Services (HCSS) agency must:
(1)
determine and document the needs and preferences of the
participant for the adaptive aid;
(2)
document the necessity for the adaptive aid;
(3)
consider renting the adaptive aid on a short-term
basis if the participant's needs or desires cannot be accurately determined
at the time of the assessment;
(4)
obtain comparative price quotes or use a price list
to document prices of the adaptive aid from a minimum of three suppliers or
annually select a supplier based on the lowest prices from the quotes/price
list for the main types of adaptive aids that the agency has been purchasing;
(5)
document the justification of the selection including
cost, delivery time of item, record of quality services, access to loaners
during repairs, repair history, and warranties. For those suppliers selected,
document in the vendor records the names of the suppliers from whom all quotes/price
lists were obtained, the amount of the quotes/price lists, the items for which
the quotes/price lists were requested, and the dates the quotes/price lists
were obtained; and
(6)
have a nurse, therapist, or other appropriate professional
conduct a home visit within 14 Texas Department of Human Services work days
of delivery to verify that the adaptive aid meets the needs of the participant,
that orientation was provided to the participant in the use of the adaptive
aid, and to document completion of purchase and satisfaction of the participant
on the documentation of completion of purchase form.
(b)
For any single adaptive aid expenditure costing $500 or
more, in addition to complying with the requirements listed in subsection
(a)(1)-(6) of this section, the HCSS agency must:
(1)
obtain written specifications for the adaptive aid from
a licensed occupational therapist, physical therapist, speech pathologist,
or other appropriate professional specializing in assessments for assistive
technology or adaptive aids;
(2)
obtain a minimum of three written bids if not using
price lists or price quotes as identified under subsection (a)(5)-(6) of this
section, and document the justification of the selection including cost, delivery
time of item, record of quality services, access to loaners during repairs,
repair history, and warranties; and
(3)
document the justification when not accepting the
lowest bid, including delivery time of item, record of quality services, access
to loaners during repairs, repair history, and warranties.
§48.6054.Time Frames for Adaptive Aids Costing Less Than $500.
(a)
The Home and Community Support Services agency must purchase
and ensure delivery of any adaptive aid within 14 Texas Department of Human
Services (DHS) work days of being authorized to purchase the adaptive aid,
counting from either the effective date of the individual service plan form
or the date the form is received, whichever is later.
(b)
If the agency cannot ensure delivery of an adaptive aid
within 14 DHS work days of receipt of DHS's authorization, before the 14th
day, the agency must submit to the case manager the case information form,
containing an explanation why the adaptive aid cannot be delivered within
the required time frame and a new proposed date for the delivery.
§48.6056.Time Frames for Adaptive Aids Costing $500 or More.
(a)
The Home and Community Support Services agency must purchase
and ensure delivery of any adaptive aid within 30 Texas Department of Human
Services (DHS) work days of being authorized to purchase the adaptive aid,
counting from either the effective date of the individual service plan form
or the date the form is received, whichever is later.
(b)
If the agency cannot ensure delivery of an adaptive aid
within 30 DHS work days of receipt of DHS's authorization, before the 30th
day, the agency must submit to the case manager the case information form,
containing an explanation why the adaptive aid cannot be delivered within
the required time frame and including a new proposed date for the delivery.
§48.6058.Cost-Effective Purchases of Medical Supplies.
The Home and Community Support Services agency must:
(1)
prior to the selection of medical supplies, obtain comparative
price quotes or use a price list to document prices of the medical supplies
from a minimum of three suppliers; or
(2)
at least annually select supplies based on the lowest
prices from the quotes/price list for the main types of supplies that the
agency has been purchasing, and document the justification of the selection,
including cost, delivery time of item, and record of quality services; and
(3)
document the basis for selection and for those selected,
document in the vendor records the names of the suppliers from whom all quotes/price
lists were obtained, the amount of the quotes/price lists, the items for which
the quotes/price lists were requested, and the dates the quotes/price lists
were obtained.
§48.6060.Time Frames for Medical Supplies.
(a)
The Home and Community Support Services (HCSS) agency
is responsible for assuring the purchase and delivery of any authorized medical
supply within five Texas Department of Human Services (DHS) work days of the
waiver service initiation date.
(b)
On existing cases, the HCSS agency must deliver medical
supplies within five DHS work days of being authorized to purchase the supplies,
counting from the effective date of the individual service plan form or the
date the form is received, whichever is later.
(c)
If the HCSS agency cannot ensure delivery of a medical
supply due to unusual or special supply needs or availability within five
DHS work days of receipt of DHS's authorization, the HCSS agency must submit
the case information form to the case manager before the fifth day, containing
an explanation why the medical supply cannot be delivered within the required
time frame and a new proposed date for the delivery.
§48.6062.Time Frames for Emergency Purchases of Medical Supplies.
If the case manager or the Home and Community Support Services (HCSS)
agency identifies a need for the emergency purchase and delivery of a medical
supply, the HCSS agency must deliver the item within two Texas Department
of Human Services work days of identifying the need for the medical supply.
§48.6064.Medical Supplies on Hand.
At least twice a year, the Home and Community Support Services agency
must verify the quantity of the medical supplies that the participant has
on hand, and, if necessary, adjust the service plan or modify the delivery
schedule for the medical supplies. The results of this verification must be
documented in the case conference notes.
§48.6066.Freight Charges for Medical Supplies and Adaptive Aids.
The Home and Community Support Services agency must assure that, if
medical supplies or adaptive aids are delivered to the participant by means
of any commercial carrier, such as United Parcel Services or United States
Postal Service, the most cost effective carrier is used. Overnight delivery
should not be used unless it is an emergency purchase that cannot be purchased
locally and delivered by the next day after determining the need.
§48.6068.Cost-Effective Purchases of Minor Home Modifications.
The Home and Community Support Services (HCSS) agency must:
(1)
determine and document the needs and preferences of the
participant for the minor home modification;
(2)
document the necessity for the minor home modification;
(3)
obtain written specifications for any project expenditure
costing $1000 or more which will be used to procure bids and inspect the completed
job;
(4)
obtain a minimum of three written bids based on the
written specifications for any project expenditure costing $1000 or more;
(5)
select a bidder to provide the modification and document
the justification when not selecting lowest bid for the selection, including
cost, completion time of modification, record of quality service, timely response
to repair requests, and warranties; and
(6)
inspect the minor home modification for completion,
compliance with the written specifications, if applicable, and quality of
workmanship within seven Texas Department of Human Services (DHS) work days
of the work being completed. The inspection requirements are as follows:
(A)
The HCSS provider must ensure that a qualified person
inspects completed work to ensure all work was done according to written specifications,
if applicable, and the Texas Accessibility Standards.
(B)
The inspector cannot be the attendant.
(C)
Once the inspection is concluded and the modification
is completed, the HCSS provider must send a copy of the Community Based Alternatives
documentation of completion of purchase form to the case manager within seven
DHS work days after the completion of the modification.
§48.6070.Time Frames for Minor Home Modifications Costing $1000 or More.
(a)
The Home and Community Support Services agency is responsible
for assuring the completion of all minor home modifications within 60 Texas
Department of Human Services (DHS) work days of being authorized to do the
minor home modification, counting from either the effective date of the individual
service plan form or the date the form is received, whichever is later.
(b)
If the modification cannot be completed within 60 DHS
work days of being authorized to do the minor home modification, the agency
must submit the case information form to the case manager prior to the 60th
day, explaining why the modification cannot be completed on time and including
a new projected date of completion for the modification.
§48.6072.Time Frames for Minor Home Modifications Costing Less Than $1000.
(a)
The Home and Community Support Services agency is responsible
for assuring the completion of all minor home modifications within 30 Texas
Department of Human Services (DHS) work days of being authorized to do the
minor home modification, counting from either the effective date of the individual
service plan form or the date the form is received, whichever is later.
(b)
If the modification cannot be completed within 30 DHS work
days of being authorized to do the minor home modification, the agency must
mail the case information form to the case manager prior to the 30th date,
explaining why the modification cannot be completed on time and including
a new projected date of completion for the modification.
§48.6074.Landlord Approval for Minor Home Modifications.
Prior to beginning the home modifications, the Home and Community Support
Services (HCSS) agency must obtain written approval from the owner of the
building for the proposed modifications if the rental agreement does not provide
such approval. Additionally, the HCSS agency must obtain any applicable building
permits prior to starting the home modifications.
§48.6076.Accountability for Minor Home Modifications.
If a minor home modifications require repair or replacement within
one year of completion, the Home and Community Support Services agency must
repair or replace the minor home modification without billing the Texas Department
of Human Services or the participant, except when
(1)
the finished modification met appropriate specifications
and bid requirements agreed upon before the job was started; or
(2)
the repair or replacement is required due to circumstances
beyond the control of the participant or participant's family members, or
due to abuse caused by the participant or family members.
§48.6078.Billable Units.
The following activities may be billed as Community Based Alternatives
(CBA) services by Home and Community Support Services agencies:
(1)
Nursing services:
(A)
direct participant contact;
(B)
participation on the interdisciplinary team (IDT);
(C)
time spent in delegating, training, and supervising personal
care attendants, Adult Foster Care providers, and provider substitutes in
the delivery of nursing tasks that have been delegated;
(D)
time spent in providing nursing tasks that had been delegated
to an attendant in order to prevent a service break, if no attendant can be
found;
(E)
time spent in training family members, neighbors, and
other informal support providers to provide needed nursing or personal care
tasks; and
(F)
time spent in performing the annual reassessment or Texas
Index for Level of Effort resets which includes actual participant contact
and documentation of assessment forms and care plan.
(2)
Specialized therapy services (occupational therapy,
physical therapy, and speech pathology):
(A)
direct participant contact; and
(B)
participation on the IDT.
(3)
Personal assistance services:
(A)
direct participant contact to provide personal care and
nursing tasks that have been delegated; and
(B)
participation on the IDT.
(4)
Billable items for medical supplies include
the invoice cost, including freight charges and sales tax, of the medical
supply and the requisition fee.
(5)
Billable items for minor home modifications include
the invoice cost of labor, materials, sales tax, and the requisition fee.
(6)
Billable items for adaptive aids include the invoice
cost of the item, including freight charges and sales tax, and the requisition
fee.
(7)
In-Home Respite Care - relief of the unpaid primary
caregiver.
§48.6080.Non-Billable Time and Activities.
The following activities are not considered billable activities under
the Community Based Alternatives (CBA) program for Home and Community Support
Services agencies:
(1)
supervision of personal care attendants performing personal
assistance tasks, unless the attendant is delivering nursing tasks delegated
by a registered nurse;
(2)
phone calls, letters, or meetings with Texas Department
of Human Services (DHS) or community resources;
(3)
administrative meetings or staff meetings;
(4)
in-service training, continuing education, or conferences;
(5)
employee conferences or evaluations;
(6)
filing claims for services;
(7)
traveling to and from the participant's home;
(8)
processing paperwork or completing records or reports,
except for the annual reassessment;
(9)
home modifications, medical supplies, or adaptive
aids that are not listed in the CBA Provider Manual as covered items nor approved
by authorized DHS staff;
(10)
collateral contact when that contact is between
agency employees and individuals providing services to participants under
personal service agreements or subcontracts with the CBA agency;
(11)
billing for services that are considered to be mutually
exclusive, as identified in §48.6082 of this title (relating to Mutually
Exclusive Services);
§48.6082.Mutually Exclusive Services.
The following waiver services are considered to be mutually exclusive
and are not allowed under the waiver:
(1)
A participant receiving In-Home Respite Care may not receive
personal assistance services for the same period of time.
(2)
A participant residing in a personal care facility,
Type B, may not receive minor home modifications.
(3)
A participant residing in a personal care facility
or an Adult Foster Care home may not receive personal assistance services.
(4)
A participant cannot receive any Home and Community
Support Services reimbursed through the Community Based Alternatives program
from two provider agencies on the same date.
§48.6084.Service Claim Limits.
(a)
A maximum of four hours may be billed under nursing services
by the registered nurse to decide whether or not to delegate a nursing task
to an adult foster care provider.
(b)
In order to avoid service breaks, the Home and Community
Support Services agency may bill for authorized personal assistance services
hours performed by a licensed nurse, for a maximum period of 10 days during
the participant's individual service plan effective period.
(1)
The hours performed by the nurse may be billed at the
nursing rate, only if there are no attendants available to perform the needed
delegated nursing tasks and only licensed nurses can be recruited.
(2)
The documentation must include all efforts the provider
agency made in order to find an attendant to deliver delegated nursing tasks
in order to prevent a break in service.
(c)
Components of minor home modifications cannot be billed
without an invoice or in more than three billings.
§48.6086.Claims and Service Delivery Records.
The Community Based Alternatives (CBA) Home and Community Support Services
(HCSS) agency provider is liable for monetary exceptions if the monthly claims
do not correspond with the provider's service authorization and service delivery
records. The provider must maintain the following records:
(1)
notification of Community Based Alternatives services
form;
(2)
individual service plan, pages 1-3 and attachments
B-E form;
(3)
notification of ineligibility form;
(4)
client needs assessment questionnaire and task/hour
guide and addendum for personal assistance services form;
(5)
CBA HCSS purchased services delivery report form;
(6)
CBA documentation of services delivered form, or
a facsimile previously approved by the waiver manager;
(7)
bids for minor home modifications costing $1000 or
more;
(8)
bids for any single expenditure for adaptive aids
costing $500 or more, comparative price quotes or a price list;
(9)
annual comparative price quotes/lists for the purchase
of medical supplies;
(10)
annual comparative price quotes/lists for the purchase
of adaptive aids;
(11)
receipts from the contractor for minor home modifications
completed, documenting the date of completion and the cost of the modification;
(12)
CBA documentation of completion of purchase form;
(13)
any applicable building permits;
(14)
CBA specifications for minor home modifications
form;
(15)
documented justification for not accepting the lowest
bids or quotes for adaptive aids, medical supplies, or minor home modifications,
where applicable;
(16)
if using price lists/price quotes, documentation
of the basis of the annual selection of a supplier; and
(17)
written approval from the homeowner for modifications
to be made.
§48.6088.Monetary Exceptions.
(a)
Providers of Home and Community Support Services (HCSS)
services must document on the documentation of service delivery form, or an
approved facsimile, that services reimbursed on an hourly basis are provided
as authorized on the notification of Community Based Alternatives services
form and identified on the individual service plan, including:
(1)
type of service delivered;
(2)
units of service delivered;
(3)
dates of service delivery; and
(4)
name of the individual providing waiver services.
(b)
If documentation does not support the monthly claims,
the HCSS agency may be liable for monetary exceptions.
(c)
The HCSS agency must designate a timekeeper to verify
that the hours recorded on the time sheet were worked and that the tasks assigned
were completed. The timekeeper may be a registered nurse supervisor.
(d)
The employee must enter the daily total time and monthly
total hours. An employee who is unable to complete and sign the time sheet
may designate another person to complete and sign the time sheet. The HCSS
agency must document in writing the reasons the employee is unable to complete
and sign the time sheet and must document in writing who is authorized to
make these entries. The documentation may be a written statement that includes
the following:
(1)
the employee's name;
(2)
a brief summary of what portion of the time sheet
the employee is unable to complete;
(3)
the name and relationship of the person who has been
designated to complete the form for the employee; and
(4)
the timekeeper's signature and date. The timekeeper
may add the monthly total of time with no exception taken, as long as the
employee completes the daily total time.
§48.6090.Fiscal Monitoring.
(a)
Administrative errors. A recoupment of 12% of the paid
unit rate is the administrative error exception for services billed on an
hourly basis. It represents the administrative portion of the rate. Administrative
errors are applied to the documentation reviewed and are not extrapolated.
Administrative errors include, but are not limited to, the items in paragraphs
(1)-(2) of this subsection:
(1)
administrative errors on the documentation of services
delivered form or the prior approved facsimile:
(A)
The provider agency leaves the month and year of service
blank in item 2, section A. The Texas Department of Human Services (DHS)
applies the error to the total number of units documented on the time sheet.
(B)
The timekeeper fails to enter a date of signature to certify
the total number of hours the attendant, nurse, or therapist worked. DHS
applies the error to the total number of units documented on the time sheet.
(C)
The timekeeper corrects the date of signature, but fails
to initial the correction. DHS applies the error to the number of units reimbursed
after the earliest signature date.
(D)
The timekeeper enters an illegible date of signature or
makes an illegible correction to the date. DHS applies the error to the total
number of units documented on the time sheet.
(E)
The timekeeper enters a date of signature that is before
the date of the last day services are delivered. DHS applies the error to
the total number of units reimbursed after the signature date.
(F)
The timekeeper fails to sign the time sheet. DHS applies
the error to the total number of units documented on the time sheet.
(G)
The timekeeper uses a signature stamp, but fails to initial
the stamped signature. DHS applies the error to the total number of units
documented on the time sheet.
(H)
The attendant, nurse, therapist, and/or timekeeper uses
liquid paper/correction fluid to correct an entry in the record of time, signature,
or date portion of the time sheet. DHS applies the error to the total number
of units documented on the time sheet. If the liquid paper/correction fluid
is used only on a daily entry in the record of time, DHS applies the error
only to the total number of units reimbursed for that day.
(I)
The attendant, nurse, therapist, and/or timekeeper makes
an illegible entry in or an illegible correction to any portion of the record
of time column. DHS applies the error to the total number of units reimbursed
for the days in which entries are illegible.
(J)
The attendant fails to initial an increase in the daily
time or the monthly total of hours for the pay period. DHS applies the error
to the number of units reimbursed in excess of the original entry.
(K)
The attendant, nurse, therapist, or other agency representative
fails to sign the documentation of services delivered form or approved facsimile.
DHS applies the error to the total number of units documented on the time
sheet.
(L)
The provider agency uses a form that has not been approved
by DHS. DHS applies the error to the total number of units reimbursed while
using something other than documentation of services delivered form or an
approved facsimile.
(M)
DHS reimburses the provider agency for nursing, therapies,
personal assistance services, or in-home respite, but a valid individual service
plan, pages 1-3 and all pertinent attachments, and client needs assessment
questionnaire and task/hour guide and addendum for personal assistance services
form, signed by the case manager, is missing for the period reimbursed by
the agency. DHS applies the error to the total number of units of nursing,
therapies, personal assistance services, or in-home respite, claimed and not
covered by a valid individual service plan.
(N)
DHS reimburses the provider agency for nursing services,
but the documentation of services form lists "supervisory visit" in the comments
section without specifying that it is a nursing visit to supervise the delivery
of delegated tasks, and there is no other documentation available that the
nurse provided nursing services during the visit.
(2)
The following items are administrative errors
resulting in recoupment of the entire requisition fee. The recoupment amount
represents the administrative cost of the requisition fee:
(A)
There is no Community Based Alternatives documentation
of completion of purchase form, but there is a receipt for the purchase of
adaptive aids, medical supplies, or for the completion of the minor home modification.
(B)
Bids were required for the purchase of an adaptive aid
or the completion of a minor home modification and bids were not obtained.
(C)
DHS reimburses the provider for the purchase of medical
supplies, but there is no documentation available that price list/price quotes
were obtained from three suppliers for the items for which the provider has
been reimbursed or the price list/price quotes were obtained more than 12
months before the purchase.
(D)
DHS reimburses the provider for the purchase of adaptive
aids, but there is no documentation available that price list/price quotes
were obtained from three suppliers for the items for which the provider has
been reimbursed or there is no documentation available that the supplier selected
on an annual basis to deliver the adaptive aids had the lowest prices for
the main type of adaptive aids the agency has purchased.
(b)
Financial errors. A reduction of 100% of the paid unit
rate is the financial error exception. This exception is applied to the units
of service on the documentation reviewed. This exception is not extrapolated.
Financial errors include, but are not limited to, the following:
(1)
DHS reimburses the provider agency for services, but the
documentation of services delivered form, or approved facsimile, is missing
for the period for which services are reimbursed. DHS applies the error to
the total number of units documented on the time sheet.
(2)
The attendant, nurse, or therapist leaves the entire
record of time section blank. DHS applies the error to the total number of
units documented on the time sheet.
(3)
DHS reimburses the provider agency for hours that
exceed the authorization given by DHS. DHS applies the error to the total
number of units reimbursed in excess of the units authorized by DHS, unless
purchased following emergency procedures.
(A)
For personal assistance services, the maximum that may
be reimbursed for a month is the weekly total of hours listed under "adjusted
weekly hours" on the addendum to the personal assistance services form, multiplied
by 4.50 plus prior authorized hours not used due to participant stay while
in a hospital or in a rehabilitation hospital.
(B)
For nursing services, the maximum that may be reimbursed
is the number of hours listed under "direct nursing hours" on the individual
service plan/nursing service plan.
(4)
DHS reimburses the provider agency for any waiver
service that is not identified on the participant's individual service plan,
attachments B-E, and client needs assessment questionnaire and task/hour guide
and addendum for personal assistance services form, unless the service was
provided as a result of an emergency and is supported by backup documentation
supplied within seven DHS work days from the date the emergency was determined.
DHS applies the error to the entire amount reimbursed for such services.
(5)
DHS reimburses the provider agency for hours that
exceed the total number of hours recorded on the documentation of services
delivered form or approved facsimile. DHS applies the error to the total number
of units reimbursed in excess of the units recorded on the time sheet. If
the sum of the daily total of hours does not equal what is written in the
monthly total blank, the lesser of the two totals is used to calculate the
total number of hours subject to the error.
(6)
The provider makes a claim for nursing, physical
therapy, occupational therapy, or speech pathology services, but a valid physician's
order is missing. DHS applies the error to the total number of units claimed
and not covered by a valid order.
(7)
DHS reimburses the provider agency for a claim for
service, other than a pre-enrollment home health assessment, delivered prior
to the eligibility effective date on the notification of Community Based Alternatives
services form. DHS applies the error to the total number of units reimbursed
for such services that were delivered before the effective date on the form.
(8)
DHS reimburses the provider agency for any hours
that consisted of non-billable time and activities as identified in the rule
§48.6080 of this title (relating to Non-Billable Time and Activities).
DHS applies the error to the total number of units reimbursed for such services.
(9)
DHS reimburses the provider agency for more than
four hours of nursing used to decide whether to delegate to an Adult Foster
Care provider. DHS applies the error to the total number of units reimbursed
for such services.
(10)
DHS reimburses the provider agency for more than
10 days during the participant's individual service plan year for nursing
services being performed by a nurse to prevent service breaks caused by the
attendant not being available to provide delegated nursing tasks. DHS applies
the error to the total number of units reimbursed in excess of the ten-day
maximum for such services.
(11)
DHS reimburses the provider agency for an amount
in excess of the amount documented on the receipt for adaptive aids, medical
supplies, or minor home modifications. DHS applies the error to the total
number of dollars reimbursed in excess of the amount on the receipt, plus
the appropriate dollar amount of the requisition fee, if applicable.
(12)
There is no receipt for the purchase of adaptive
aids or medical supplies, or for the completion of minor home modifications
for which the provider has been reimbursed. DHS applies the error to the total
dollar amount reimbursed for the medical supplies, adaptive aids, or minor
home modifications in question, including the requisition fee.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of the Secretary of State, on
January 26, 1998.
TRD-9801120
Glenn Scott
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: March 9, 1998
For further information, please call: (512) 438-3765
The Texas Department of Human Services (DHS) proposes the repeal of
§§79.1001-79.1007 and §§79.1601-79.1614, concerning informal
hearings, request for hearing, setting for hearing, conduct of hearing, decision,
rehearing, administrative appeal, definitions, right to a hearing, special
requirements, notice of adverse action, request for a hearing, effective dates
of adverse actions, administrative law judge, hearing guidelines, withdrawal
of hearing request and informal disposition, conduct of hearings - general
requirements, prehearing procedure, evidence and depositions, deliberation,
and decisions; and proposes new §§79.1601-79.1613, concerning definitions,
computation of time, notice of adverse action, request for a hearing, notice
of hearing, venue, representation of parties, prehearing procedure, discovery
and depositions, informal disposition of appeal, conduct of hearings, final
decisions and orders, and motions for rehearing, in its Legal Services chapter.
DHS is also repealing Subchapter K, Informal Hearings. The purpose of the
repeals and new sections is to organize and simplify the formal hearing rules
that are used when appearing before and participating in a hearing before
an administrative law judge. In addition, the new sections promulgate hearing
rules are required by 1997 legislation, including Senate Bills 30, 84, and
637.
Eric M. Bost, commissioner, has determined that for the first five-year
period the proposed sections will be in effect there will be fiscal implications
as a result of enforcing or administering the sections. The effect on state
government for the first five-year period the sections will be in effect is
an estimated additional cost of $58,630 for fiscal year 1998; $117,812 for
fiscal year 1999; $117,812 for fiscal year 2000; $117,812 for fiscal year
2001; and $117,812 for fiscal year 2002. There will also be an increase in
revenue of $99,975 for fiscal year 1998; $399,900 for fiscal year 1999; $399,900
for fiscal year 2000; $399,900 for fiscal year 2001; and $399,900 for fiscal
year 2002. There will be no fiscal implications for local government.
Mr. Bost also has determined that for each year of the first five years
the sections are in effect the public benefit anticipated as a result of enforcing
the sections will be that a party to a hearing will be able to consult one
set of hearing rules to determine how to proceed before an administrative
judge in contested cases involving adverse actions by DHS. Also, Senate Bill
30 implementation costs will be offset by increased recoveries of benefit
overissuances. There will be no effect on small businesses. There is no anticipated
economic cost to persons who are required to comply with the proposed sections.
Questions about the content of the proposal may be directed to Carrie McLarty
at (512) 438-4872 in DHS's Hearings Department. Written comments on the proposal
may be submitted to Supervisor, Rules and Handbooks Unit-117, Texas Department
of Human Services E-205, P.O. Box 149030, Austin, Texas 78714-9030, within
30 days of publication in the
Texas Register
.
Subchapter K. Informal Hearings
40 TAC §§79.1001-79.1007
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Texas Department of Human Services or in the Texas Register office,
Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeals are proposed under the Human Resources
Code, Title 2, Chapter 22, which provides the department with the authority
to administer public assistance programs.
The repeals implement the Human Resources Code, §§22.001- 22.030.
§79.1001.Informal Hearings.
§79.1002.Request for Hearing.
§79.1003.Setting for Hearing.
§79.1004.Conduct of Hearing.
§79.1005.Decision.
§79.1006.Rehearing.
§79.1007.Administrative Appeal.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of the Secretary of State, on
January 23, 1998.
TRD-9801066
Glenn Scott
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: March 9, 1998
For further information, please call: (512) 438-3765
40 TAC §§79.1601-79.1614
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Texas Department of Human Services or in the Texas Register office,
Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeals are proposed under the Human Resources
Code, Title 2, Chapter 22, which provides the department with the authority
to administer public assistance programs.
The repeals implement the Human Resources Code, §§22.001- 22.030.
§79.1601.Definitions.
§79.1602.Right to a Hearing.
§79.1603.Special Requirements.
§79.1604.Notice of Adverse Action.
§79.1605.Request for a Hearing.
§79.1606.Effective Dates of Adverse Actions.
§79.1607.Administrative Law Judge.
§79.1608.Hearing Guidelines.
§79.1609.Withdrawal of Hearing Request and Informal Disposition.
§79.1610.Conduct of Hearings - General Requirements.
§79.1611.Prehearing Procedure.
§79.1612.Evidence and Depositions.
§79.1613.Deliberation.
§79.1614.Decisions.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of the Secretary of State, on
January 23, 1998.
TRD-9801067
Glenn Scott
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: March 9, 1998
For further information, please call: (512) 438-3765
40 TAC §§79.1601-79.1613
The new sections are proposed under the Human Resources Code,
Title 2, Chapter 22, which provides the department with the authority to administer
public assistance programs.
The new sections implement the Human Resources Code, §§22.001-
22.030.
§79.1601.Definitions.
The following words and terms, when used in this section, shall have
the following meanings, unless the context clearly indicates otherwise.
(1)
Administrative law judge - The Texas Department of Human
Services' (DHS) attorney appointed to preside over the hearing by the director
of the Hearings Department.
(2)
Administrator - A nursing facility administrator
licensed by DHS.
(3)
Adverse action - Any action in which DHS:
(A)
terminates or suspends a contract between a person and
DHS before the contract's stated expiration date;
(B)
denies payment, in whole or part, for any claim arising
under a contract;
(C)
terminates or suspends payments, in whole or part, to
a contractor;
(D)
demands payment or repayment for contract or rule violations;
(E)
directs one of its contractors to terminate or suspend
a subcontract or payments to any subcontractor or provider of medical services;
(F)
chooses not to renew a nursing facility contract;
(G)
reduces a contractor's block grant funds by 25% or more
of the amount DHS reimburses if DHS plans to allocate the withheld funds to
another contractor for similar services in the same geographic area, if the
contractor alleges that the reduction was in violation of DHS rules, was discriminatory,
or was without reasonable basis in law or fact; it does not apply to funding
or contracts subject to DHS's competitive procurement rules;
(H)
denies, suspends, or revokes the license of a person:
(i)
providing home health services;
(ii)
operating an adult day-care facility or an adult day
health care facility;
(iii)
operating a personal care facility;
(iv)
operating a convalescent or nursing facility;
(v)
operating a maternity home;
(vi)
operating an intermediate care facility for the mentally
retarded; or
(vii)
operating a nurse aide training and competency evaluation
program;
(I)
terminates the certification of a facility providing intermediate
or long-term care for the mentally retarded;
(J)
imposes civil, administrative, or monetary penalties against
a convalescent or nursing facility;
(K)
imposes administrative penalties against a person, as
defined in paragraph (15)(B) of this section;
(L)
revokes, suspends, or refuses to renew an administrator's
license; assesses an administrative penalty against an administrator; issues
a written reprimand to an administrator; requires an administrator to participate
in continuing education; or places an administrator on probation;
(M)
suspends a license or revokes a stay of an order suspending
a license issued to any person by the Texas Department of Public Safety or
the Texas Parks and Wildlife Department;
(N)
places a finding of abuse, neglect, or misappropriation
of a resident's property by a nurse aide on the nurse aide registry;
(O)
denies, revokes, suspends, refuses to renew, or rescinds
program approval of a medication aide permit;
(P)
excludes a person, as that term is defined in paragraph
(15)(B) of this section, from eligibility for a license to operate an institution;
or
(Q)
imposes any adverse sanction, penalty, or other action
to which a person has a statutory right to a formal hearing in accordance
with the provisions of this subchapter.
(4)
Commissioner - The commissioner of the Texas
Department of Human Services.
(5)
Contract - Any written document or series of documents
that obligates DHS to provide consideration to a person in exchange for goods
or services from that person or that obligates DHS to provide goods or services
in exchange for consideration.
(6)
Contractor - Any person with whom DHS has a written
contract.
(7)
Controlling person - A person who has the ability,
acting alone or in concert with others, to directly or indirectly influence,
direct, or cause the direction of the management, expenditure of money, or
policies of an institution or other person, including:
(A)
a management company, landlord, or other business entity
that operates or contracts with others for the operation of an institution;
(B)
any person who is a controlling person of a management
company or other business entity that operates an institution or that contracts
with another person for the operation of an institution; and
(C)
any other individual who, because of a personal, familial,
or other relationship with the owner, manager, landlord, tenant, or provider
of an institution, is in a position of actual control or authority with respect
to the institution, without regard to whether the individual is formally named
as an owner, manager, director, officer, provider, consultant, contractor,
or employee of the facility, unless the individual does not exercise any formal
or actual influence or control over the operation of an institution.
(8)
Department - The Texas Department of Human Services.
(9)
Hearings Department - The Hearings Department of
the Texas Department of Human Services.
(10)
Institution - An establishment that furnishes, in
one or more facilities, food and shelter to four or more persons who are unrelated
to the proprietor of the establishment, and provides minor treatment under
the direction and supervision of a physician licensed by the Texas State Board
of Medical Examiners, or other services that meet some need beyond the basic
provision of food, shelter, and laundry.
(11)
License - When used in conjunction with a hearing
to suspend a license to operate a motor vehicle or a license to engage in
recreational activity, this term shall mean a license, certificate, registration,
permit, or other authorization that:
(A)
is issued by a licensing authority;
(B)
is subject before expiration to suspension, revocation,
forfeiture, or termination by an issuing licensing authority; and
(C)
a person must obtain to:
(i)
operate a motor vehicle; or
(ii)
engage in a recreational activity, including hunting
and fishing, for which a license or permit is required.
(12)
Licensee - When used in conjunction with
a hearing to suspend a license to operate a motor vehicle or a license to
engage in recreational activity, this term shall mean the person whose license
DHS seeks to suspend.
(13)
Licensing authority - When used in conjunction with
a hearing to suspend a license to operate a motor vehicle or a license to
engage in recreational activity, this term shall mean the Texas Department
of Public Safety or the Texas Parks and Wildlife Department.
(14)
Order suspending a license - When used in conjunction
with a hearing to suspend a license to operate a motor vehicle or a license
to engage in recreational activity, this term shall mean an order issued by
DHS directing a licensing authority to suspend a license.
(15)
Person - The following terms apply to the definition
of a person:
(A)
Except as defined in subparagraph (B) of this paragraph,
a person is an individual, partnership, corporation, association, governmental
subdivision or agency, or a public or private organization of any character.
(B)
When used in conjunction with a hearing to deny, suspend,
or revoke a license as provided by §242.061 of the Texas Health and Safety
Code, an administrative penalty hearing as provided by §242.066 of the
Texas Health and Safety Code, or an exclusion hearing as provided by §242.0615
of the Texas Health and Safety Code, a person is the applicant; the partner,
officer, director, or managing employee of the applicant; the licensee; the
partner, officer, director, or managing employee of the licensee; the owner
or the one who controls the owner of the physical plant of a facility in which
an institution operates or is to operate; or a controlling person.
(16)
Petitioner - The designation used by a person
against whom an adverse action has been proposed or taken and who participates
in a hearing conducted pursuant to this subchapter.
(17)
Respondent - The designation used by DHS when DHS
is a party to a hearing conducted pursuant to this subchapter.
§79.1602.Computation of Time.
In computing any period of time prescribed under this subchapter or
by order of the administrative law judge, the period begins on the day after
the act or event in question and concludes on the last day of the period;
however, if the last day is a Saturday, Sunday, or legal holiday, the last
day runs until the next day that is not a Saturday, Sunday, or legal holiday.
§79.1603.Notice of Adverse Action.
(a)
Commissioner to send notice. The commissioner or the commissioner's
designee shall send each person against whom the Texas Department of Human
Services (DHS) takes adverse action notice of the adverse action.
(b)
Services. The notice shall be sent by certified mail,
return receipt requested, unless DHS determines that a more immediate form
of notice is required.
(c)
Contents of notice. The notice shall include details of
the basis of the adverse action sufficient to enable the person to file a
timely appeal of and request a hearing on the imposition of the adverse action
by DHS. The notice shall inform the person that the person has the right to
a hearing to contest the adverse action by sending a written request for a
hearing to the Hearings Department and shall specify the date by which such
written request must be received by the Hearings Department.
(d)
Notice not required. DHS is not required to give a person
notice of adverse action with each billing transaction for areas of DHS that
have a large volume of bills or which routinely post debit and credit entries.
DHS must give the contractor an individual notice of appeal rights any time
the contractor informs DHS that the contractor is dissatisfied with a claim
transaction that is an adverse action.
(e)
Special requirements for contractors. A notice of adverse
action involving a contract cancellation must specify whether the contract
will remain in force pending completion of the appeal.
(f)
Special requirements for nurse aides. A notice of adverse
action to a nurse aide accused of resident abuse, resident neglect, or misappropriation
of a resident's property must include:
(1)
the nature of the allegations;
(2)
the date and time of the alleged occurrence;
(3)
notification of the right to a hearing;
(4)
notification of DHS's intent to report the findings
to the nurse aide registry following a hearing;
(5)
the fact that the nurse aide's failure to request
a hearing within 30 days from the date of the notice will result in reporting
the findings to the nurse aide registry;
(6)
the consequences of waiving the right to a hearing;
(7)
the consequences of a finding through the hearing
process that the alleged conduct occurred; and
(8)
the fact that the nurse aide has the right to be
represented by an attorney of the nurse aide's choice at the nurse aide's
expense.
(g)
Special requirements for administrative penalties assessed
against nursing facility administrators.
(1)
Notice given by DHS. When DHS determines that an administrative
penalty should be assessed against a nursing facility administrator, DHS shall
give written notice of such determination to the administrator.
(2)
Contents of notice. The notice must include a brief
summary of the alleged violation and a statement of the amount of the recommended
penalty. The notice must inform the administrator of the date by which the
administrator should submit its written request for a hearing to the Hearings
Department and must inform the administrator that the administrator has a
right to a hearing on the occurrence of the violation, the amount of the penalty,
or both the occurrence of the violation and the amount of the penalty.
(h)
Special requirements for motor vehicle or recreational
licenses.
(1)
Initiation of adverse action. DHS may initiate a proceeding
to suspend a license by filing a petition with the Hearings Department.
(2)
Contents of petition. DHS's petition must state that
license suspension is authorized under §23.003 of the Texas Human Resources
Code and must allege the licensee's name; the licensee's social security number,
if known; the type of license held by the licensee; the licensing authority
involved; and the amount that DHS claims is owed by the licensee.
(3)
Notice of filing of petition. At the time of the
filing of the petition to suspend a license, DHS shall give the licensee notice
of the licensee's right to a hearing before the Hearings Department, notice
of the deadline for requesting a hearing before the Hearings Department, and
a form requesting a hearing for completion by the licensee for filing with
the Hearings Department.
(4)
Contents of notice. The notice required under this
section must inform the licensee that the licensee's license will be suspended
on the 60th day after the date of service of the notice unless the licensee
pays the amount owed to DHS; the licensee presents evidence of a payment history
satisfactory to DHS in compliance with a reasonable repayment schedule; or
the licensee appears at a hearing before the Hearings Department and shows
that the petition for suspension of a license should be denied or that an
order suspending the license should be stayed.
(5)
Service. DHS shall serve the notice required under
this section in accordance with the rules for service in civil cases under
the Texas Rules of Civil Procedure.
(i)
Special requirements for administrative penalties assessed
pursuant to §242.066 of the Texas Health and Safety Code. A notice of
adverse action to a person shall include a brief summary of the charges; the
amount of the recommended penalty; whether the violation is subject to correction,
and, if so, the date by which the institution must file a plan of correction
and the date by which the plan of correction must be filed to avoid assessment
of the penalty; and a statement that the person has a right to a hearing on
the occurrence of the violation, the amount of the penalty, or both.
§79.1604.Request for a Hearing.
(a)
Time for filing. Unless otherwise provided by statute
or this section, a person must file a written request for a hearing with the
Hearings Department so that the Hearings Department receives the written request
within 15 days from the date the person receives the Texas Department of Human
Services' (DHS's) notice of adverse action.
(b)
Form of request. The request must be in writing, in the
form of a petition or letter, and must state the basis of the appeal of the
adverse action.
(c)
Referral to administrative law judge. Upon receipt of
a request for a hearing, the director of the Hearings Department will assign
the appeal to an administrative law judge for disposition according to this
subchapter.
(d)
Special requirements for nurse aide appeals. A nurse aide
must file a written request for a hearing with the Hearings Department so
that the Hearings Department receives the written request within 30 days from
the date the nurse aide receives DHS's notice of adverse action.
(e)
Special requirements for medication aide appeals. A medication
aide or an applicant for a medication aide permit must file a written request
for a hearing with the Hearings Department so that the Hearings Department
receives the written request within 30 days from the date the medication aide
or applicant receives DHS's notice of adverse action.
(f)
Special requirements for nursing facility administrator
administrative penalty appeals. Within 20 days from the date the administrator
receives DHS's notice of assessment of an administrative penalty, the administrator
may file with the Hearings Department a written acceptance of the determination
and the penalty recommended by DHS or a written request for a hearing on the
occurrence of the violation, the amount of the penalty, or both the occurrence
of the violation and the amount of the penalty.
(g)
Special requirements for motor vehicle and recreational
license appeals. If a licensee wishes to request a hearing on DHS's petition
to suspend a license, the licensee must file a written request for a hearing
with the Hearings Department not later than the 20th day after the date of
service of the notice.
(h)
Special requirements for administrative penalty appeals
pursuant to §242.066 of the Texas Health and Safety Code.
(1)
Not later than the 20th day after the date on which DHS's
notice of adverse action is sent, the person may give written consent to the
recommended penalty, submit a plan of correction if the violation is subject
to correction, or make a written request for a hearing.
(2)
If a plan of correction has been submitted and rejected,
then, not later than the 20th day after the date on which DHS's notice that
the plan of correction is rejected is sent, the person may give written consent
to the recommended penalty or make a written request for a hearing.
(i)
Election of arbitration as alternative to hearing.
(1)
A person or DHS may elect binding arbitration as an alternative
to a hearing for any of the following adverse actions, unless the United States
Health Care Financing Administration requires that the appeal be resolved
by the federal government:
(A)
failure to renew a license pursuant to the Texas Health
and Safety Code, §242.033;
(B)
suspension or revocation of a license pursuant to the
Texas Health and Safety Code, §242.061;
(C)
assessment of a civil penalty pursuant to the Texas Health
and Safety Code, §242.065;
(D)
assessment of a monetary penalty pursuant to the Texas
Health and Safety Code, §242.066; or
(E)
assessment of a penalty pursuant to the Texas Human Resources
Code, §32.021(k).
(2)
The rules and procedures for electing arbitration
as an alternative to a hearing are codified at 1 Texas Administrative Code
Chapter 163 (relating to Arbitration Procedures for Certain Enforcement Actions
of the Department of Human Resources).
§79.1605.Notice of Hearing.
(a)
Setting the hearing date. Within 30 days of the date of
the request for hearing, the administrative law judge selects a hearing date
in response to the request for hearing.
(b)
Scheduled hearing date. The administrative law judge must
give the parties written notification of the hearing date at least 20 days
before the date of the hearing.
(c)
Contents of notice. The written notice of hearing must
include a statement of the time, date, and location of the hearing and a statement
of the legal authority and jurisdiction under which the hearing will be conducted.
(d)
Service of notice. The notice of hearing may be served
upon the parties in the manner deemed by the Hearings Department as being
the most reliable method to ensure receipt of service by the parties. The
method of service need not be identical for each party.
(e)
Expedited hearings. Upon written motion for either party
for good cause shown, the administrative law judge may expedite the hearing.
The administrative law judge must give the parties notice of the date of the
expedited hearing at least ten days prior to the hearing date.
(f)
Special requirements for nursing facility administrator
administrative penalty appeals. If the administrator requests a hearing regarding
assessment of an administrative penalty or fails to respond to the Texas Department
of Human Services (DHS's) notice of assessment of an administrative penalty
and recommended penalty, the Hearings Department shall set a hearing on the
determination of violation and recommended penalty, and give the notice provided
by this section.
(g)
Special requirements for Summer Food Service Program appeals.
In any appeal involving the federal Summer Food Service Program, a hearing
must be scheduled and held within 14 days of the date the request for hearing
is received by DHS.
§79.1606.Venue.
(a)
General venue. Unless otherwise noted by statute or this
section, the hearing shall be conducted in Austin, Texas.
(b)
Contractor block grant fund reductions. In any hearing
on reduction of a contractor's block grant funds, the Texas Department of
Human Services (DHS) must hold one session of the hearing in the contractor's
locality if requested in writing by a locally elected official or an organization
with at least 25 members.
(c)
Special requirements for nurse aide appeals. In any appeal
involving a nurse aide, the hearing shall be conducted in the DHS office nearest
to the place of residence of the nurse aide.
(d)
Special requirements for medication aide appeals. In any
appeal involving a medication aide or an applicant for a medication aide permit,
the hearing shall be conducted in the DHS office nearest to the place of residence
of the medication aide or applicant.
(e)
Special requirements for motor vehicle and recreational
license appeals. Hearings involving motor vehicle and recreational licenses
shall be conducted by telephone unless the administrative law judge finds
that there is good cause to conduct the hearing in person.
(f)
Application for change of venue. Either party may file
a written application with the administrative law judge requesting that the
hearing be conducted at some location other than that specified in this section.
The administrative law judge shall order a change in the location of the hearing
if the administrative law judge finds that such is necessary for a full and
fair resolution of the appeal.
(g)
Telephone hearings.
(1)
Filing. The administrative law judge, upon written motion
of either party filed at least 14 days prior to the hearing date, may order
all or part of the hearing to be conducted by telephone.
(2)
Showing required. The party requesting the telephone
hearing must state the reasons for the request in the motion. If the administrative
law judges finds that good cause exists to permit all or part of the hearing
to be conducted by telephone, the motion will be granted.
(3)
Procedural rights and duties. All rights available
to the parties at an in-person hearing apply to telephone hearings, subject
only to the limitations of the physical arrangement. DHS shall notify the
parties of the scheduled telephone hearing and the parties shall contact their
respective witnesses to ensure the availability of the witnesses for the hearing.
(4)
Documentary evidence. To be offered in a telephone
hearing, tangible or documentary evidence must be marked and filed with the
administrative law judge with a copy provided to the opposing party or the
party's representative at least five working days prior to the scheduled hearing.
(5)
Default. For a party to be considered as having failed
to appear at a telephone hearing, one or more of the following conditions
must exist for more than ten minutes after the scheduled time for hearing:
(A)
failure to answer the telephone;
(B)
failure to free the telephone line for a hearing; or
(C)
failure to be ready to proceed with the hearing as scheduled.
§79.1607.Representation of Parties.
(a)
Respondent. The Texas Department of Human Services (DHS)
is represented in a hearing by an attorney appointed by the general counsel.
(b)
Petitioner. The petitioner may be represented by any of
the following persons:
(1)
the petitioner;
(2)
a licensed attorney, upon filing of a notice of representation
with the administrative law judge;
(3)
a non-attorney person designated in writing by the
petitioner to the administrative law judge; or
(4)
if the petitioner is a corporation, by an officer,
board member, or any other person designated by the corporation's board of
directors by written resolution of the board filed with the administrative
law judge.
(c)
Attorney not required. A petitioner is not required to
have an attorney in order to appear and participate at a hearing. DHS will
not provide an attorney to represent a petitioner.
(d)
Change in representation. If a party wishes to change its
representative, the party should file a written notice of substitution of
representative with the administrative law judge. An attorney wishing to withdraw
from representing a party should do so in accordance with the Texas Rules
of Civil Procedure.
§79.1608.Prehearing Procedure.
(a)
Prehearing motions.
(1)
Filing. All motions must be filed with the Hearings Department.
(2)
Form of motion. All motions filed prior to the hearing
must be in writing and must specify the desired relief and the reasons for
the requested relief and must be filed in a timely manner so as to allow for
the filing of a response by the non-moving party and issuance of a ruling
by the administrative law judge.
(3)
Response. A party shall be allowed to file a written
response to any prehearing motion with the Hearings Department.
(4)
Certificate of service. All motions and responses
to motions must contain a certificate stating that a copy of the motion or
response has been served on the opposing party or the party's representative.
The certificate must state the date and manner of service and should bear
the signature of the person making the certification.
(b)
Rules of Civil Procedure. In all prehearing matters not
specifically addressed by this section, the Texas Rules of Civil Procedure
will apply, unless the administrative law judge finds that there is good cause
for waiving those rules.
(c)
Prehearing conference. On the motion of either party or
on the administrative law judge's own motion, the administrative law judge
may direct the parties to appear for a prehearing conference for the purpose
of simplifying the issues in the case, narrowing the scope of the hearing,
or for any other purpose the administrative law judge finds is necessary.
The administrative law judge may order that certain information be exchanged
by the parties by a date prior to the hearing date, including, but not limited
to, the following:
(1)
a list of witnesses each party may call to testify;
(2)
a written statement of the disputed issues for consideration
at the hearing;
(3)
copies of any written testimony to be offered at
the hearing; and
(4)
copies of documentary evidence to be offered at the
hearing.
(d)
Respondent's statement of the case. At least ten days
before the hearing date, or at least three days before the hearing date in
an expedited case, the Texas Department of Human Services (DHS) must ensure
that the petitioner and the administrative law judge receive a statement of
the case that includes a concise statement of the matters asserted by DHS
in support of its adverse action and a reference to the particular sections
of all statutes, rules, and regulations upon which DHS relies.
(e)
Petitioner's statement of the case. Upon a timely written
motion from the respondent, the administrative law judge may order the petitioner
to file a statement of the case that includes a concise statement of the matters
asserted by the petitioner in support of its position and a reference to the
particular sections of all statutes, rules, and regulations upon which the
petitioner relies. Such statement shall be filed at least ten days before
the hearing date, or at least three days before the hearing date in an expedited
case.
(f)
Postponement or continuance of hearing.
(1)
Motion in writing and time for filing. If either party
desires to postpone or continue the hearing, such party must file a sworn
written motion for continuance at least seven days prior to the date set for
the hearing.
(2)
Contents of motion. The motion must specify the reasons
for the continuance and must make reference to all prior motions for continuance
filed in the same proceeding.
(3)
Failure to comply. Failure to comply with the requirements
of this subsection, except for good cause shown by the party seeking the continuance,
shall be grounds for the administrative law judge to deny the motion.
(4)
Order. The administrative law judge shall issue an
order denying or granting a motion for continuance properly filed under this
subsection. The decision to grant or deny the motion for continuance shall
be solely at the discretion of the administrative law judge.
§79.1609.Discovery and Depositions.
(a)
Discovery. Unless otherwise specified in this section,
discovery shall be conducted pursuant to the Texas Rules of Civil Procedure.
(b)
Copy of previous statement. Any person, including a non-party,
is entitled to and may obtain a copy of a statement in a party's possession,
custody, or control that the person has previously made about the contested
case or its subject matter. A statement is considered to be previously made
if it is:
(1)
a written statement signed or otherwise adopted or approved
by the person making it; or
(2)
a stenographic, mechanical, electrical, or other
recording, or a transcription of the recording, which is a substantially verbatim
recital of an oral statement by the person making it and which was contemporaneously
recorded.
(c)
Depositions.
(1)
Commission to take deposition.
(A)
Issuance of commission. Upon written motion and the deposit
of an amount that will reasonably ensure payment of the amounts estimated
to accrue under this section, the administrative law judge may issue a commission,
addressed to the officers authorized by statute to take depositions, requiring
that the deposition of a witness be taken.
(B)
Subpoena. The commission shall authorize the issuance
of any subpoena necessary to require that the witness appear and produce,
at the time the deposition is taken, books, records, papers, or other objects
that may be necessary and proper for the purpose of the proceeding.
(C)
Requirements of officer taking deposition. The commission
shall require an officer to whom it is addressed to:
(i)
examine the witness before the officer on the date and
at the place named in the commission; and
(ii)
take answers under oath to questions asked the witness
by a party to the proceeding, the state agency, or an attorney for a party
or the agency.
(D)
Witness to remain in attendance. The commission shall
require the witness to remain in attendance from day to day until the deposition
is begun and completed.
(2)
Place of deposition. A deposition in a contested
case shall, in the absence of agreement by the parties, be taken in the county
where the witness resides, is employed, or regularly transacts business in
person.
(3)
Objections to deposition testimony. Objections to
deposition testimony are reserved for the action of the administrative law
judge. The administrative law judge may consider objections other than those
made at the taking of the deposition.
(4)
Submission of deposition to witness.
(A)
Deposition submitted to witness. The deposition shall
be submitted to the witness for examination after the testimony is fully transcribed
and shall be read to or by the witness. The witness and the parties may waive
the examination by written agreement. If the witness is a party and is represented
by counsel, the deposition officer shall notify the attorney that the deposition
is ready for examination and reading at the office of the deposition officer
and that if the witness does not appear and examine, read, and sign the deposition
before the 21st day after the date on which the notice is mailed, the deposition
shall be returned as provided by this section for unsigned depositions.
(B)
Changes to deposition. The officer taking a deposition
shall enter on the deposition a change in form or substance that the witness
desires to make and a statement of the reasons given by the witness for making
the change. After the change and statement of reasons for the change have
been entered, the witness shall sign the deposition.
(C)
Signature of witness. A witness must sign a deposition
at least three days before the date of the hearing or the deposition shall
be returned by the officer as an unsigned deposition.
(D)
Failure of witness to sign. If a deposition is not signed
by the witness, the officer shall sign it and state on the record the fact
of the witness's waiver, illness, absence, or refusal to sign and the reason
given, if any, for failure to sign. The deposition shall then be used as though
signed by the witness.
(5)
Return of deposition to Hearings Department.
A deposition may be returned to the Hearings Department by mail or by hand-delivery.
If returned by mail, the Hearings Department employee receiving the deposition
shall endorse on the deposition that it was received by mail and sign the
deposition. If returned by hand-delivery, the person delivering the deposition
shall sign an affidavit before the Hearings Department stating that the person
delivering the deposition received the deposition from the officer who took
the deposition, that the deposition has not been out of the deliverer's possession
since receipt from the officer, and that the deposition has not been altered.
(6)
Opening of deposition by Hearings Department employee.
At the request of a party, a deposition may be opened by a Hearings Department
employee. The Hearings Department employee who opens the deposition shall
endorse on the deposition the date and at whose request it was opened, and
then sign the deposition. The deposition shall remain on file with the Hearings
Department for inspection by the parties.
(7)
Use of deposition. A party is entitled to use a deposition
without regard to whether a cross-interrogatory has been propounded.
(8)
Expenses.
(A)
Non-party witness. A non-party witness is entitled to
receive:
(i)
ten cents for each mile from and to the place of the deposition
if the place is more than 25 miles from the witness's residence and if a personal
motor vehicle is used for travel;
(ii)
reimbursement of transportation expenses to and from
the place of the deposition if the place is more than 25 miles from the witness's
residence and the witness does not use a personal motor vehicle for travel;
(iii)
meal and lodging expenses if the witness's residence
is more than 25 miles from the place of the deposition; and
(iv)
$10 for each day or part of a day that the person is
necessarily present.
(B)
Payment of expenses. Amounts required to be paid by this
section shall be paid by the party at whose request the witness appears. If
the Texas Department of Human Services (DHS) is required to pay the witness,
expenses shall not exceed the maximum rates provided by law for state employees.
(9)
Failure to comply with a commission. If a person
fails to comply with a commission, DHS, acting through the attorney general,
or the party requesting the commission may bring suit to enforce the commission
in the county in which the hearing is conducted.
(d)
Abuse of discovery; sanctions.
(1)
Motions for sanctions or order compelling discovery. A
party may make written motion to the administrative law judge for an order
compelling discovery or for sanctions. A party may request sanctions without
having first obtained an order compelling discovery.
(2)
Failure to comply with order or with discovery request.
If a party or a person designated to testify on behalf of a party fails to
comply with a proper discovery request or to obey an order compelling discovery,
an administrative law judge may, after opportunity for hearing, make orders
in response to the failure, including any of the following orders:
(A)
preventing the non-responding party from conducting further
discovery;
(B)
charging the non-responding party, the party representative,
or both with the expenses of discovery or taxable costs:
(C)
deeming any facts pertaining to the order, or any other
facts, to be established, as claimed by the moving party;
(D)
disallowing the non-responding party from supporting or
opposing designated claims or defenses, or prohibiting the party from introducing
designated matters in evidence;
(E)
striking pleadings or parts of pleadings;
(F)
staying further action until the order is obeyed;
(G)
dismissing the proceeding with or without prejudice; or
(H)
rendering a default judgment against the non-responding
party.
(3)
Abuse of the discovery process. The administrative
law judge may impose any of the sanctions specified in this subsection on
a party who abuses the discovery process in seeking or resisting discovery
or who files a request, response, or answer that is frivolous, oppressive,
or made for the purpose of delay.
(4)
Failure to supplement discovery. A party who fails
or refuses to supplement a response to a discovery request may not present
evidence that the party was under a duty to provide in an initial or supplemental
response to a discovery request, and may not offer the testimony of an expert
witness or of any other person having knowledge of the discoverable matter,
unless the administrative law judge finds good cause to permit the evidence
despite the noncompliance. The burden of establishing good cause is upon the
party offering the evidence, and good cause must be shown in the record.
(5)
Record of basis for sanction. The administrative law
judge shall state the specific basis for any sanction in the record or in
a written order.
§79.1610.Informal Disposition of Appeal.
At any time before the conclusion of the hearing, informal disposition
of a case may be made, in writing, by stipulation, agreed settlement, consent
order, default, or withdrawal of the request for a hearing by the petitioner.
§79.1611.Conduct of Hearings.
(a)
Authority of administrative law judge. The administrative
law judge is in charge of the hearing. The administrative law judge has the
authority to:
(1)
administer oaths;
(2)
examine witnesses;
(3)
issue subpoenas;
(4)
consolidate causes of action;
(5)
rule on admissibility of evidence;
(6)
establish reasonable time limits for conducting hearings;
(7)
request information;
(8)
issue intermediate orders;
(9)
limit the witnesses to be called by the parties;
and
(10)
issue orders necessary to enforce rulings, including,
but not limited to:
(A)
exclusion of evidence;
(B)
exclusion of witnesses;
(C)
summary orders or default judgment on any issue; and
(D)
postponement or dismissal of the hearing, with or without
prejudice to a party.
(b)
Decorum. Each party, witness, attorney, representative,
or other person involved in the hearing shall show proper dignity, courtesy,
and respect for the hearing process and for the hearing participants. The
administrative law judge may take any action necessary to maintain proper
decorum and conduct including, but not limited to:
(1)
recessing the hearing;
(2)
continuing the hearing to reconvene at another time
or place; and
(3)
excluding any person from the hearing for a period
and under conditions that the administrative law judge considers fair and
just.
(c)
Record. A record must be made of the hearing that includes:
(1)
all pleadings, motions, and intermediate rulings and orders;
(2)
evidence received or considered;
(3)
a statement of matters officially noticed;
(4)
questions and offers of proof, objections, and rulings;
(5)
proposed findings of fact and conclusions of law
and exceptions;
(6)
the decision; and
(7)
all staff memoranda or data submitted to or considered
by the administrative law judge.
(d)
Stenographic record. A stenographic record of each hearing
on the merits must be made. If requested by the administrative law judge,
the proceedings must be transcribed and transcript given to the administrative
law judge. The costs associated with recording and preparing the transcript
may be assessed to one or more parties. If a party wants a transcript of the
hearing, that party must pay all costs associated with providing the transcript.
If a party fails to appear at a hearing the administrative law judge may assess
court reporter costs against the party or parties failing to appear.
(e)
Rules of procedure. In all procedural matters not specifically
provided for in this subchapter, the Texas Rules of Civil Procedure will be
followed unless the administrative law judge determines that there is good
cause for waiving the Texas Rules of Civil Procedure.
(f)
Evidence. The Texas Rules of Civil Evidence will be followed
except that, when necessary to ascertain facts not reasonably susceptible
of proof under the Texas Rules of Civil Evidence, evidence otherwise inadmissible
may be admitted, unless precluded by statute, if it is the type of evidence
commonly relied upon by reasonably prudent persons in the conduct of their
affairs.
(g)
Presentation of cases. Subject to any rulings and orders
of the administrative law judge, all parties shall have the opportunity to
present evidence and argument on all issues involved, and to respond to evidence
and arguments presented. Each party will have the opportunity to call witnesses,
cross-examine witnesses, and present rebuttal testimony. The administrative
law judge may call a witness or direct a party to call a witness whose testimony
the administrative law judge believes is necessary to make a final decision.
(h)
Subpoenas. On the written request of any party, on a showing
of good cause, and on deposit of sums that will reasonably ensure payment
of the amounts estimated to accrue under this section, the administrative
law judge may issue a subpoena addressed to the sheriff or any constable to
require the attendance of witnesses and the production of books, records,
papers, or other objects as may be necessary and proper for the purposes of
the proceedings. The party requesting the subpoena is responsible for preparation
and service of the subpoena. If a party is not represented by an attorney,
the administrative law judge may prepare the subpoena. If a person fails to
comply with a subpoena, the requesting party may bring suit to enforce the
subpoena in a district court in the county in which the hearing is conducted.
(i)
Failure of parties to appear. If a party or the party's
representative is notified of the hearing and fails to appear, all matters
stated in evidence introduced at the hearing may be considered as uncontroverted.
§79.1612.Final Decisions and Orders.
(a)
Form of final decision. A final decision shall be in writing
and shall include separately stated findings of fact and conclusions of law.
(b)
Orders. The administrative law judge shall enter all orders
necessary to implement the final decision. The administrative law judge may
also make recommendations that the administrative law judge considers appropriate
to the case.
(c)
Time for issuing decisions. Unless otherwise provided
by statute or by this section, a decision shall be issued on or before the
expiration of 60 days from the date the hearing is closed.
(d)
Manner of issuing decisions. Decisions shall be mailed
by certified mail, return receipt requested, to the parties or their representatives.
If a decision is returned unclaimed, the decision shall be re-mailed by regular
mail service. Decisions may be hand- delivered or sent by intra-agency mail
to the Texas Department of Human Services (DHS). A decision is deemed issued
on the date it is mailed, hand-delivered, or placed in intra-agency mail.
A decision that has been re-mailed after being returned unclaimed is deemed
issued on the date it is first mailed, if mailed to the last known address
of the addressee.
(e)
Special requirements for nurse aide appeals.
(1)
Time for issuing decision. In any action involving an
appeal by a nurse aide, the final decision must be issued on or before the
expiration of 120 days from the date the nurse aide's request for hearing
is received by DHS.
(2)
Determinations of neglect. The administrative law
judge must not find that a nurse aide has neglected a resident if the nurse
aide demonstrates that the neglect was caused by factors beyond the control
of the nurse aide.
(f)
Special requirement for medication aide appeals. In any
action involving an appeal by a medication aide or an applicant for a medication
aide permit, the final decision must be issued on or before the expiration
of 120 days from the date the medication aide's or applicant's request for
hearing is received by DHS.
(g)
Special requirements for Child and Adult Care Food Program
appeals. In any appeal involving the federal Child and Adult Care Food Program,
the final decision must be issued on or before the expiration of 120 days
from the day DHS received a request for hearing.
(h)
Special requirements for Summer Food Service Program appeals.
In any appeal involving the federal Summer Food Service Program, the final
decision must be issued on or before the expiration of five days from the
date the hearing is closed.
(i)
Special requirements for nursing facility administrator
administrative penalty appeals. When a final decision is issued in any appeal
involving an administrative penalty, a notice shall be provided to the administrator
of the administrator's right to judicial review of the final decision.
(j)
Special requirements for motor vehicle and recreational
license appeals.
(1)
Order suspending a license.
(A)
The administrative law judge shall issue an order suspending
the licensee's license if the administrative law judge finds that, after notice
of the adverse action from DHS, the licensee:
(i)
failed to reimburse DHS for an amount in excess of $250
granted in error to the licensee under the Food Stamp program or the program
of financial assistance under Chapter 31 of the Texas Human Resources Code;
(ii)
has been provided an opportunity to make payments toward
the amount owed under a repayment schedule; and
(iii)
failed to comply with a repayment schedule previously
entered into by DHS and the licensee.
(B)
The administrative law judge may order the licensee to
refrain from engaging in the licensed activity as a part of any final order
suspending a license.
(C)
If the administrative law judge does not make the findings
set out in subparagraph (A) of this paragraph, the administrative law judge
shall dismiss DHS's petition to suspend a license, without prejudice, and
shall not issue an order suspending the licensee's license.
(D)
The Hearings Department shall forward a final order suspending
a license to the appropriate licensing authority, except as provided in subparagraph
(F) of this paragraph.
(E)
The administrative law judge may stay an order suspending
a license conditioned on the licensee's compliance with a reasonable repayment
schedule that is incorporated in the final order suspending a license.
(F)
A final order suspending a license that incorporates a
stay of such suspension shall not be served on the licensing authority unless
the stay is revoked.
(2)
Allegations of petition deemed admitted. The
administrative law judge shall deem the allegations of the petition for suspension
of license to be admitted and shall render an order suspending a license if
the licensee fails to respond to the notice of adverse action issued by the
DHS, request a hearing, or appear at a hearing.
(3)
Revocation of the stay of an order suspending a license.
(A)
DHS may file a motion with the Hearings Department seeking
to revoke the stay of an order suspending a license if the licensee does not
comply with the terms of a reasonable repayment plan made part of the order
suspending a license.
(B)
The motion seeking to revoke the stay of an order suspending
a license must allege the manner in which the licensee failed to comply with
the payment plan.
(C)
Upon receipt of a motion to revoke the stay of an order
suspending a license, the Hearings Department shall issue notice by certified
mail, return receipt requested, to the licensee. The notice shall include:
(i)
a statement that the motion was filed, including the date
and time of the filing; and
(ii)
the date, time, and location of the hearing on the motion.
(D)
The licensee shall be given no less than ten day's notice
prior to the hearing on the motion to revoke the stay of the order suspending
the license.
(E)
If, after the hearing, the administrative law judge finds
that the licensee has not complied with the terms of the repayment plan contained
in the order suspending the license, the administrative law judge shall revoke
the stay of the order and render a final order suspending the license.
(4)
Vacating or staying order suspending a license.
(A)
The administrative law judge may, upon written motion
filed with the Hearings Department, vacate or stay an order suspending a license.
(B)
A motion to vacate an order suspending a license must
allege that the licensee has paid all amounts owed to DHS.
(C)
A motion to stay an order suspending license must allege
that the licensee has established a satisfactory payment record with DHS.
(D)
Upon receipt of a motion to vacate or stay an order suspending
a license, the Hearings Department shall transmit a copy of the motion to
the non-movant.
(E)
Upon receipt of a motion to vacate or stay an order suspending
a license, the non-movant will have ten days in which to file a written response
in support of or in opposition to the motion.
(F)
Upon receipt of a written response in opposition to a
motion to vacate or stay an order suspending a license, the Hearings Department
shall set the motion for a hearing not less than ten days from the date of
the notice of the hearing. The Hearings Department shall notify the parties
of the date, time and location of the hearing.
(G)
If the administrative law judge finds that all amounts
owed to DHS have been paid, the administrative law judge shall enter an order
vacating the order suspending the license.
(H)
If the administrative law judge finds that the licensee
has established a satisfactory payment record, the administrative law judge
shall enter an order staying the order suspending the license.
(I)
The Hearings Department shall promptly deliver all orders
vacating or staying an order suspending a license to the appropriate licensing
authority.
(J)
An order issued under this section does not preclude DHS
from seeking any other relief provided by law, including that provided by
this subchapter.
(k)
Special requirements for administrative penalty appeals
pursuant to §242.066 of the Texas Health and Safety Code.
(1)
Contents of decision. The administrative law judge shall
find that:
(A)
a violation has occurred and assess a penalty; or
(B)
a violation has not occurred.
(2)
Notice of decision. The commissioner shall provide
written notice of the decision to the person. If the decision is adverse to
the person, the commissioner shall further notify the person as to the amount
of the penalty, the interest rate, the date upon which interest begins to
accrue, whether the penalty should be paid in full or whether the penalty
will be ameliorated, and the person's right to judicial review of the decision.
§79.1613.Motions for Rehearing.
(a)
Filing. Either party may file a written motion for rehearing.
Any motion for rehearing must be filed with and received by the Hearings Department
on or before the 20th day after the date on which the final decision was mailed.
(b)
Reply. A written reply to a motion for rehearing must
be filed with and received by the Hearings Department on or before the 30th
day after the date on which the final decision was mailed.
(c)
Order on motion. The administrative law judge shall rule
on a motion for rehearing not later than the 45th day after the date on which
the final decision was mailed or the motion for rehearing is overruled by
operation of law.
(d)
Extension of deadlines. The administrative law judge may,
by written order extend the time of filing a motion or reply or for ruling
on the motion for a period not to exceed the 90th day after the day on which
the final decision was mailed.
(e)
Shortening the time for filing. The parties may, in writing
or on the record, agree to a date other than that provided by this section
for filing a motion for rehearing if the specified date is not before the
date the order is signed or later than the 20th day after the date the order
is issued.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on
January 23, 1998.
TRD-9801068
Glenn Scott
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: March 9, 1998
For further information, please call: (512) 438-3765
Chapter 800.
General Administration
Subchapter G. Petition for Adoption of Rules
Subchapter C. Program and Claim Payment Requirements
Subchapter D. Fiscal Monitoring
Chapter 48.
Community Care for Aged and Disabled
(3)
meet the requirements for Preadmission
Screening and Annual Resident Review (PASARR) and be determined appropriate
for nursing facility care;
]
(4)
] choose home and community-based
waiver services as an alternative to nursing facility placement based on an
informed choice with approval conditional on feasible alternatives available
under the waiver in accordance with 42 Code of Federal Regulations, §441.302(d)(1);
(5)
] have an individual plan
of care for waiver services as specified in §48.6006 of this title (relating
to Individual Plan of Care for Waiver Services) whose cost does not exceed
95% of the individual's actual Texas Index for Level of Effort payment rate;
(6)
] meet the financial eligibility
criteria for waiver services as specified in §48.6007 of this title (relating
to Financial Eligibility Criteria); and
(7)
] have ongoing needs for
waiver services whose projected costs, as indicated on the Individual Plan
of Care, do not exceed the maximum service ceilings set for those services
as listed in this paragraph:
(8)
] receive waiver services
within 30 days after waiver eligibility is established and
(9)
] reside either in his
own home or in a licensed personal care facility or adult foster care home
contracted with the Texas Department of Human Services to provide Community
Based Alternatives (CBA) services. CBA services will not be delivered to residents
of hospitals, nursing facilities, ICF-MR facilities, or unlicensed personal
care facilities.
(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:
Chapter 79.
Legal Services
Subchapter Q. Formal Hearings
Part XX.
Texas Workforce Commission