Texas Register
(23 TexReg 12253). The change stipulates
that there will be a tolerance level of one provider or 10% of the providers
sampled, whichever amount is greater for errors identified in all areas of
an administrative review subject to administrative sanctions. The amendments
to §§12.2, 12.5, 12.7, 12.8, 12.17, and 12.23 are adopted without
changes to the proposed text and will not be republished.
The justification for the amendments to §§12.2, 12.5, 12.7, 12.8,
12.17, 12.23, and 12.24 is to comply with United States Department of Agriculture
(USDA) regulations which provide that certain costs for assisting a potential
day care home provider who is unlicensed or unregistered sponsors to become
licensed or registered with the Texas Department of Protective and Regulatory
Services, so that they are eligible to participate in the Child and Adult
Care Food Program (CACFP), are an allowable use of program funds.
The amendments to §12.24 establish tolerance levels, not to exceed
10% in any area, in the administrative sanctions policy for the program reviews
of CACFP, family day care home sponsoring organizations (day home sponsors).
Based upon the outcome of administrative reviews which allowed zero tolerance
for errors subject to administrative sanction detected in the conduct of administrative
reviews of day home sponsors, DHS chose to consider establishing reasonable
tolerance levels for administrative sanction errors which would maintain the
integrity of the program while allowing for human error. After the first round
of day home sponsor reviews applying the new administrative sanction policy,
program sponsors and Special Nutrition Programs (SNP) staff raised concerns
about the benefit of an administrative sanction process that required 100%
compliance. DHS shared these concerns with the newly formed CACFP Advisory
Committee (CACFP-AC) for their guidance concerning modification of the administrative
sanction policy to allow tolerance levels. The CACFP-AC recommended that DHS
seek approval of the Board to consider implementing tolerance levels.
DHS presented the CACFP-AC's recommendation to the Families and Children
subcommittee of the Texas Board of Human Services (Board), who in turn suggested
that DHS convene an ad hoc committee representing day home sponsors, concerned
citizens, SNP staff, and other stakeholders. The ad hoc committee was charged
with considering the benefit of allowing tolerance levels in the administrative
sanction process and recommending appropriate tolerance levels.
The ad hoc committee, comprised of a facilitator, and representatives of
day home sponsoring organizations, concerned citizens, DHS internal audit,
and DHS SNP, met on July 30, 1998. The ad hoc committee voted to establish
a tolerance level of 10% for all elements of the administrative review process
except in the area of "monitoring providers" for 1) failure to observe a meal
during a review, and 2) failure to complete all critical elements, as established
by DHS, on the monitor review form.
The recommendation of the ad hoc committee proposal, including the two
exceptions, was presented to the CACFP-AC with a request that the advisory
committee recommend to the Board that they approve adoption of a rule which
would allow DHS to establish a tolerance level not to exceed 10% in any area
of the administrative sanction process. The CACFP-AC voted unanimously in
favor of recommending that the Board approve adoption of rules to implement
the recommendation of the ad hoc committee. The Board approved publication
of proposed rules implementing tolerance levels and, barring negative comment,
adoption of the rules.
DHS published proposed rules to establish policy consistent with the recommendations
of the ad hoc committee. The Texas CACFP Sponsors Association and four individual
sponsoring organizations submitted comments objecting to the adoption of the
rule.
DHS reconvened the ad hoc committee by conference call on January 20, 1999,
to advise them of the comments received and solicit recommendations for the
purpose of preparing a presentation to the Board on what actions to take.
Based upon the conference call, DHS submitted a recommendation to the Board
that a tolerance level of 10% be applied to all areas of the administrative
sanction process except for the requirement that a meal be observed during
required monitor visits for which DHS would allow zero tolerance.
Based on written comments and testimony, the Board directed DHS to adopt
rules which would allow a tolerance level not to exceed 10% for any area of
the administrative sanction process, without the two exceptions recommended
by the ad hoc committee and the CACFP Advisory Committee. DHS is submitting
these adopted rules according to that directive.
The amendments will function by improving program efficiency and program
integrity.
During the comment period, DHS received no comments relating to §§12.2,
12.5, and 12.7, 12.8, 12.17, and 12.23. DHS received comments from the Texas
CACFP Sponsors Association, and four sponsoring organizations (Southwest Human
Development Services, Nutriservice, Inc., Red River Child Care Food Program,
and Institute for Child Nutrition, Inc.) relating to §12.24. In addition,
DHS received comments from the Texas CACFP Sponsors Association, and several
sponsoring organizations at the February 19, 1999, meeting of the Texas Board
of Human Services. A summary of the comments and DHS's responses follows.
Comments relating to tolerance levels - §12.24:
With one exception, all commenters stated that the tolerance level of 10%
should be applied to all areas of the administrative review, expressing their
concern that zero tolerance left no room for human error. Four commenters
stated that the language of the rule pertaining to observing a meal during
a monitor visit was unclear. The commenters pointed out that sponsoring organizations
commonly fail to observe a meal during a monitor visit and gave examples of
monitoring situations where observing a meal would not be appropriate and
suggested that sponsoring organizations that use monitoring visits as a program
management tool are at risk of being subjected to administrative sanctions.
One commenter requested clarification that it was the intent of DHS to clarify
that no sponsor would be placed into the administrative sanction process on
the basis of a statistical sampling of less than one provider and that the
requirement to observe a meal service would apply only to required monitor
visits.
Response: DHS agrees that establishing a 10% tolerance level that applies
to all areas of the administrative sanction process will allow for reasonable
human error without jeopardizing the integrity of the program. In addition,
DHS would like to stipulate that regardless of the outcome of the sampling
process, no sponsoring organization will be subject to the administrative
sanction process when 10% of the providers sampled yields less than one provider.
Therefore, DHS has modified these rules to allow a tolerance level of one
provider, or 10% of the providers sampled, whichever amount is greater, for
all areas of an administrative review subject to administrative sanctions.
DHS agrees that the language in the proposed rule relating to the proposal
to take administrative sanctions for failure to observe a meal service does
not clearly specify that it was intended to apply only to required monitor
visits. However, DHS believes that this issue is resolved by its modification
to the rules to allow a tolerance level for all areas of the administrative
sanction process.
Comments relating to the Administrative Procedure Act (APA):
One sponsoring organization submitting written comments questioned whether
the Administrative Procedures and Texas Register Act was complied with in
the development of §12.24. One sponsoring organization submitting written
comments stated that the proposed amendments to §12.24 were not publicly
presented or discussed, nor included in the presentations and recommendations
to the "CACFP Advisory Board," nor as a part of the agenda item to the Board
of Human Services at its September 1998 meeting. This commenter insisted that
the two exceptions to the 10% tolerance level be deleted from the proposed
rule "in accordance with the Texas Administrative Procedures Act" because
they "were never included in any presentation for rules changes." The President
of the Texas CACFP Sponsors Association and several sponsoring organizations
offering testimony before the Board suggested that DHS had failed to allow
full and open discussion of the proposed policy.
Response: DHS has fully complied with the APA in the development and publication
of these rules. DHS Special Nutrition Programs (SNP) staff developed these
rules with the assistance of an ad hoc committee comprised of sponsoring organization
representatives, concerned citizens, DHS internal audit staff, as well as
SNP staff. In addition, DHS has confirmed that the policy represented at §12.24,
including the two exceptions, was discussed at the Special Nutrition Programs
Advisory Committee meeting prior to their unanimous recommendation that the
Board of Human Services approve the publication of proposed and adopted rules
developed by the ad hoc committee. SNP has also confirmed that the members
of the SNPAC received copies of the ad hoc committee report which fully described
the proposed policy, including the two exceptions, in conjunction with the
meeting at which they recommended approval of the policy. The SNPAC agenda
is published in the
Texas Register
, as required
by law, in an effort to afford the public every opportunity to participate
in an open discussion of the proposed policy.
The amendments are adopted under the Human Resources Code, Title
2, Chapters 22 and 33, which provides the department with the authority to
administer public and nutritional assistance programs.
The amendments implement §§22.001-22.030 and 33.001-33.024 of
the Human Resources Code.
§12.24.Sanctions and Penalties.
(a)-(d)
(No change.)
(e)
DHS imposes sanctions against contractors that sponsor
day care homes who fail to comply with program requirements for monitoring,
and who fail to train providers when program violations related to monitoring
or training of providers identified during an administrative review exceed
a tolerance level of one provider or 10% of the providers sampled, whichever
amount is greater. DHS imposes sanctions according to the following procedure:
(1)-(3)
(No change.)
(f)
(No change.)
(g)
DHS imposes sanctions against contractors that sponsor
day care homes who fail to disburse program funds to providers in accordance
with program requirements when program violations related to the disbursement
of program funds to providers identified during an administrative review exceed
a tolerance level of one provider or 10% of the providers sampled, whichever
amount if greater. DHS imposes sanctions according to the following procedure:
(1)-(3)
(No change.)
(h)-(l)
(No change.)
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on March
24,1999.
TRD-9901763
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Effective date: April 13, 1999
Proposal publication date: December 4, 1998
For further information, please call: (512) 438-3765