owned by a guardianship
in §417.104(c)(1)(D), §417.104(d)(3),
and §417.104(e)(3), have been changed to reference property
in the client's guardianship estate
. Proposed §417.104(g)(7) and
(8) have been moved to become §417.104(g)(6) and (7), respectively. Language
in proposed §417.104(g)(6) has been moved to become (g)(8) and has been
modified to clearly state the two conditions under which an appeal is allowed.
The burdensome procedure described in proposed §417.104(h)(1) has been
deleted. Persons who want to appeal a fee, but who have not completed and
submitted a property and financial statement form at the time they receive
the notification of charges, are required to provide complete financial information
to the reimbursement manager within 15 working days, rather than 10 working
days, of the date of the notification of charges. In proposed §417.104(h)(2),
the time frame of five working days for the reimbursement manager to take
certain action has been changed to 10 working days. Language in §417.106(a),
(b), and (c) has been modified to reflect the changes made to §417.104(g)
and (h).
Written comment on the proposal was received from the Parent Association
for the Retarded of Texas (PART), Austin; the parent of a state school resident,
Garland; and a private citizen, Dallas.
Regarding the definition of "person responsible for payment" in §417.103,
two commenters recommended adding the phrase "if client is under 18 years
old" after reference to the client's parents to clarify that parents of adult
clients are not responsible for their adult childrens' support, maintenance,
and treatment (SMT). The department responds that it declines to make the
recommended change because, in some cases, parents of adult clients may be
legally responsible for paying for their adult childrens' SMT.
Regarding the definition of "responsible entity" in §417.103, two
commenters recommended adding the phrase "financial assets belonging to" after
"client's" for clarity. The commenters also requested that the word "some"
be inserted before the word "trust." The department responds that such clarification
is unnecessary because the term "responsible entity" is not used in the subchapter
and has therefore been deleted from the definitions section.
Regarding trusts in §417.104(f), two commenters recommended adding
the sentence "Some trusts are protected by law from charges for SMT and that
trust amount of protected assets, in the last Legislative session (SB 1623)
was raised from $50,000 to $250,000 for clients in state facility for the
mentally retarded." The department responds that such language is unnecessary
because the rule refers to the state statute governing trusts, which was amended
by Senate Bill 1623 (76th Legislature).
Regarding scheduling the hearing in §417.106(f), two commenters recommended
adding the sentence "The hearing officer should be from outside the TDMHMR
agency to provide for complete impartially [sic] for all sides." The department
responds that it disagrees complete impartiality can be obtained only by having
a hearing officer from outside the department. Hearing officers are selected
to conduct impartial hearings, not to rule in favor of the department. They
are bound by the Texas Rules of Civil Procedure and Texas Rules of Civil Evidence.
This means that after each party has provided evidence (i.e., documents and
testimony) to prove his or her case, the hearing officer makes a decision
based solely on that evidence. The decision must include finding of fact and
conclusions of law. This provision prevents the decision from being arbitrary
or biased toward the department or any party. The department notes that language
has been added to the definition of "hearing officer" stating that the attorney
assigned is impartial.
Regarding references to "guardian" in §417.104(a)(3) and "guardianship"
in §417.104(e)(3), one commenter asked that the two references be reconciled,
noting that "a 'guardianSHIP' is not a person and can hardly be the owner
of property in any case." The department responds that it agrees with the
commenter and has changed all references to property
owned by the guardianship
(i.e., §417.104(c)(1)(D), §417.104(d)(3),
and §417.104(e)(3)), to property
in the client's
guardianship estate
.
These sections are adopted under the Texas Health and Safety
Code, §532.015, which provides the Texas MHMR Board with broad rulemaking
authority; the Texas Health and Safety Code, §552.017, and §593.075,
which require the board by rule to establish sliding fee schedules for the
payment by clients' parents for the support, maintenance, and treatment of
a minor client; the Texas Health and Safety Code, §552.013, which states
that the state is entitled to reimbursement for the support, maintenance,
and treatment of non-indigent patients of state mental health facilities;
the Texas Health and Safety Code §593.078, which states that an adult
resident of a state mental retardation facility and the resident's estate
are liable for the costs of the resident's support, maintenance, and treatment;
the Texas Health and Safety Code, §552.018, and §593.081, which
provides for trust exemptions; and the Texas Health and Safety Code, §533.004,
which authorizes TDMHMR to file a lien to secure reimbursement for the cost
of providing support, maintenance, and treatment and which requires the board
by rule to prescribe the procedures to contest charges for support, maintenance,
and treatment.
§417.103.Definitions.
The following words and terms, when used in this subchapter, have the
following meanings, unless the context clearly indicates otherwise:
(1)
Adult--A person who is not a minor.
(2)
Appellant--The person appealing a fee(s).
(3)
Charges--The total amount of all fees.
(4)
Client--Any person who is admitted to a facility and
who is provided support, maintenance, and treatment as an inpatient or resident
(i.e., a person to whom a bed is assigned by the facility).
(5)
Current maximum rate--The rate, established by the
department, that reflects the average daily cost of support, maintenance,
and treatment per client for each facility. (A copy of the current maximum
rates for all facilities may be obtained by contacting TDMHMR, Revenue Management,
P.O. Box 12668, Austin, Texas 78701-2668.)
(6)
Department--The Texas Department of Mental Health
and Mental Retardation (TDMHMR).
(7)
Facility--Any state hospital, state school, state
operated community services, or state center operated by the department.
(8)
Family member--
(A)
Unmarried client age 18 or older--the client and his/her
dependents.
(B)
Married client of any age--the client, his/her spouse,
and their dependents.
(9)
Fee--A specific amount of money assessed, based
on a single source of funds, that is owed monthly to a facility for a client's
support, maintenance, and treatment.
(10)
Hearing officer--An impartial attorney assigned by
the department to conduct the hearing for an appeal of a fee(s).
(11)
Minor--A person under 18 years of age who is not
and has not been married or who has not had the disabilities of minority removed
for general purposes.
(12)
Party--The appellant or the department.
(13)
Person responsible for payment--The client, the client's
spouse, the client's parent, or other person legally responsible for paying
the charges for the client's support, maintenance, and treatment, either individually,
in a representative capacity, or other legal capacity.
(14)
Reimbursement manager--The department employee in
charge of the reimbursement office at a facility.
(15)
SMT--Support, maintenance, and treatment.
§417.104.Fee Assessment and Notification of Charges.
(a)
General provisions. The fee(s) for a client's SMT is assessed
in accordance with this section.
(1)
Charges will not exceed the facility's current maximum
rate.
(2)
Failure of the person responsible for payment to provide
financial information upon request or to assign third-party benefits may result
in charges equal to the facility's current maximum rate.
(3)
A guardian's personal finances and assets are not
considered in assessing fee(s).
(b)
Necessary financial information. Upon a client's admission
to a facility, or shortly afterward, the reimbursement manager shall provide
the client and/or person responsible for payment with a property and financial
statement form, referenced as Exhibit A in §417.108(1) of this title
(relating to Exhibits), appropriate to the type of services provided to the
client.
(c)
Assessing fee(s) for minor clients.
(1)
The following sources of funds are property from which
the state may be reimbursed for a minor client's SMT and are considered separately
in assessing a fee:
(A)
third-party coverage of the minor client;
(B)
the minor client's benefits from governmental and non-governmental
agencies and institutions;
(C)
child support ordered in a divorce proceeding and other
personal income of the minor;
(D)
real and/or personal property in the minor client's guardianship
estate or owned by the minor client; and
(E)
the income of the minor client's parents as authorized
by the Texas Health and Safety Code, §552.017, §593.075, and §593.076,
in accordance with the Taxable Income of Parents formula, referenced as Exhibit
B in §417.108(2) of this title (relating to Exhibits).
(2)
Pursuant to Texas Health and Safety Code, §593.077,
a judgment in a divorce proceeding that provides for child support payments
(as referenced in paragraph (1)(C) of this subsection) does not limit the
fee that may be assessed (except that it may not exceed the current maximum
rate), nor does the judgment exempt either parent from liability for the charges.
(d)
Assessing fee(s) for adult clients in mental health facilities.
The following sources of funds are considered separately in assessing a fee:
(1)
third-party coverage of the adult client;
(2)
the adult client's benefits from governmental and
non-governmental agencies and institutions;
(3)
real and/or personal property in the adult client's
guardianship estate or owned by the adult client or spouse; and
(4)
monthly gross income of the adult client (excluding
income from the source described in paragraph (2) of this subsection) and
income of the spouse, in accordance with the Adult Clients in Mental Health
Facilities formula, referenced as Exhibit C in §417.108(3) of this title
(relating to Exhibits).
(e)
Assessing fee(s) for adult clients in mental retardation
facilities. The following sources of funds are considered separately in assessing
a fee:
(1)
third-party coverage of the adult client;
(2)
the adult client's benefits from governmental and
non-governmental agencies and institutions;
(3)
real and/or personal property in the adult client's
guardianship estate or owned by the adult client or spouse;
(4)
the adult client's monthly net work earnings in accordance
with the Adult Clients in Mental Retardation Facilities formula, referenced
as Exhibit D in §417.108(4) of this title (relating to Exhibits); and
(5)
income of the adult client (excluding income from
the sources described in paragraphs (2) and (4) of this subsection) and income
of the spouse.
(f)
Trusts. The provisions of the Texas Health and Safety Code, §552.018
and §593.081, apply to the fee(s) assessment for a client who is a beneficiary
of a trust or trusts.
(g)
Notification of charges. After a fee(s) has been assessed,
the reimbursement manager or designee shall provide written notification of
charges to the person responsible for payment that includes:
(1)
the date of the notification of charges;
(2)
the name of the client receiving SMT from the facility;
(3)
the fee(s) and the source(s) of funds used to assess
the fee(s);
(4)
the effective date(s) of the fee(s);
(5)
the facility's current maximum rate;
(6)
a statement that the person is responsible for notifying
the facility's reimbursement manager if there is a change in any of the sources
of funds the department uses to assess a fee or a change in family status
that would affect any assessed fee;
(7)
information on possible payments from a third-party
payor; and
(8)
a statement that the person has the right to appeal
under the following conditions if he or she disagrees with the fee(s).
(A)
If the person has submitted complete financial information,
then the person must notify the reimbursement manager of his or her intent
to appeal the fee(s). The person must initiate the appeal, in accordance with §417.106(c)
of this title (relating to Appeal Process), within 60 calendar days of the
date of the notification of charges.
(B)
If the person has not submitted complete financial information,
then the person must contact the reimbursement manager and provide complete
financial information within 15 working days of the date of the notification
of charges or the person forfeits the right to appeal. If the person provides
complete financial information within 15 working days of the date of the notification
of charges, then the person must initiate the appeal, in accordance with §417.106(c)
of this title (relating to Appeal Process), within 60 calendar days of the
date of the notification of charges.
(h)
Complete financial information received within 15 working
days of the date of the notification of charges. If the reimbursement manager
receives complete financial information from the person responsible for payment
within 15 working days of the date of the notification of charges as required
in subsection (g)(8)(B) of this section, then the reimbursement manager or
designee shall, within ten working days:
(1)
review the financial information;
(2)
revise the fee(s) if appropriate; and
(3)
inform in writing the person responsible for payment:
(A)
of the fee(s) amount;
(B)
that the person has a right to appeal if he or she disagrees
with the fee(s); and
(C)
that an appeal must be initiated, in accordance with §417.106(c)
of this title (relating to Appeal Process), within 60 calendar days of the
date of the notification of charges (referenced in subsection (g) of this
section).
(i)
Fee revision. The department shall determine if a fee revision
is warranted each time the department receives information indicating:
(1)
a change in any of the sources of funds the department
uses to assess a fee; and
(2)
a change in family status that would affect any assessed
fee.
§417.106.Appeal Process.
(a)
Right to appeal. If the person responsible for payment
has provided complete financial information and the person disagrees with
any fee(s) assessed by the department, then the person is entitled to appeal
such fee(s).
(b)
Obtaining forms to initiate an appeal. In order to appeal
a fee(s), the person responsible for payment must notify the reimbursement
manager at the facility providing SMT to the client of his or her intent to
appeal the fee(s). Upon such notification, the reimbursement manager shall
ensure that the person has provided complete financial information before
sending the person a copy of this subchapter and a Request for Appeal form
(referenced as Exhibit E in §417.108(5) of this title (relating to Exhibits)).
(c)
Initiating the appeal. The person responsible for payment
initiates an appeal by completing, signing, and sending the Request for Appeal
form (referenced in subsection (b) of this section or §417.107(a)(4)
of this title (relating to Filing Notice of Lien)) to: Hearings Office, TDMHMR,
P.O. Box 12668, Austin, Texas 78711-2668. The Hearings Office staff shall
contact the facility reimbursement manager to confirm that the person responsible
for payment has provided complete financial information before scheduling
a hearing.
(d)
Representation.
(1)
The appellant may represent himself or herself or use legal
counsel, a relative, a friend, or other spokesperson.
(2)
The department is represented by a department attorney.
(e)
Type of hearing.
(1)
The appellant may choose to:
(A)
appear by telephone conference or have his or her representative
appear by telephone conference at the hearing;
(B)
appear in person or have his or her representative appear
in person at the hearing in Austin; or
(C)
have a document hearing in which the hearing officer makes
a decision based solely upon documentation filed by the parties with neither
party appearing.
(2)
If the appellant chooses to appear by telephone
or in person at the hearing, then the designated department attorney may choose
to:
(A)
appear by telephone conference at the hearing; or
(B)
appear in person at the hearing in Austin.
(f)
Scheduling the hearing. The hearing officer shall schedule
the hearing to be held not later than the 40th day after the date the Request
for Appeal form is received by the hearings office. The hearing officer shall
consider any request for reasonable accommodations related to a disability
of the appellant or the appellant's representative.
(1)
If the appellant chooses to appear, then the hearing officer
shall schedule a date, time, and location (and phone number if a party will
be appearing by telephone conference) for the hearing. At least 20 calendar
days before the hearing, the hearing officer shall notify the parties, in
accordance with subsection (g) of this section, of the scheduled date, time,
and location (and phone number) of the hearing.
(2)
If the appellant chooses to have a document hearing,
then at least 20 calendar days before the document hearing, the hearing officer
shall notify the parties, in accordance with subsection (g) of this section,
of the date that all documentation must be filed with the hearings office
and copies submitted to the other party or the other party's representative.
(g)
Notification of parties.
(1)
The appellant is notified by certified mail.
(2)
The designated department attorney is notified by
intra-agency mail, fax, or electronic mail.
(h)
Privileges. No party is required to disclose communications
between an attorney and the attorney's client, an accountant and the accountant's
client, a husband and wife, a clergy-person and a person seeking spiritual
advice, or the name of an informant, or other information protected from being
divulged by substantive federal or state law.
(i)
Ex parte communication. With the exception of communications
regarding procedural matters, the hearing officer may not communicate with
a party, directly or indirectly, on any issue of fact or law, unless both
parties are present or the communication is in writing and a copy is delivered
to both parties.
(j)
Withdrawing. The appellant may withdraw the appeal or the
department may withdraw the fee(s) being appealed at any time prior to the
hearing. Upon withdrawal of either party, no hearing is held. The hearing
officer will issue an order of dismissal and notify the parties of such dismissal
in accordance with subsection (g) of this section.
(k)
Settlement. At any time before the hearing, parties may
enter into a settlement disposing of the contested issue(s). A settlement
agreement must be in writing, signed by the parties or their representatives,
and filed with the hearings office. Upon receipt of the settlement agreement,
the hearing officer will issue an order of dismissal and notify the parties
of such dismissal in accordance with subsection (g) of this section.
(l)
Filing documents.
(1)
Hearing at which the parties will appear in person or by
telephone.
(A)
If a party intends to introduce documents at the hearing,
then the party shall file such documents with the hearings office and submit
a copy of the documents to the other party or the other party's representative
at least three days before the hearing. Failure to submit copies of documents
to the other party will result in a continuance if requested by the party
who did not receive the documents.
(B)
At the hearing, the hearing officer may request either
or both parties to file additional documents for consideration in making a
decision. The hearing officer shall indicate in writing the date by which
the additional documents must be received by the hearings office.
(2)
Document hearing. If a party intends for the
hearing officer to consider his or her documents at a document hearing, then
the party shall file such documents with the hearings office and submit a
copy of the documents to the other party or the other party's representative
by the date identified by the hearing officer as described in subsection (f)(2)
of this section. Failure to submit copies of documents to the other party
will result in a continuance if requested by the party who did not receive
the documents.
(m)
Continuance. Each party is entitled to one continuance.
The hearing officer may grant additional continuances on the request of either
party provided the party shows good cause for requesting the continuance.
A request for a continuance may be written or oral, and may be made before
or during a hearing. If a hearing is continued, the hearing officer shall
schedule the hearing to be continued on a day that is not later than the 45th
day after the hearing was originally scheduled. The hearing officer must notify
the parties, in accordance with subsection (g) of this section, of the continued
hearing date within five working days of granting a continuance.
(n)
Telephone conference.
(1)
Telephone conference equipment used for a hearing must
be capable of allowing the parties and the hearing officer to hear and speak
to each other at all times during the hearing.
(2)
If a party elected to appear by telephone, then on
the date and time of the hearing, the hearing officer shall initiate telephone
contact with the party using the telephone number provided by the party.
(o)
Failure to appear. If the appellant fails to appear at
the hearing, the hearing officer shall adjourn the hearing. If the appellant
notifies the hearing officer within three working days after the hearing date
and provides evidence of good cause for failing to appear and requests a continuance,
the hearing officer shall grant a continuance. If the hearing officer has
not been notified by the fourth working day after the hearing date, then the
hearing officer shall close the record and consider all of the documents previously
filed by both parties and prepare a decision based on such previously filed
documents.
(p)
Evidence.
(1)
Documents. Documents filed as evidence with the hearings
office are admissible without further proof or authentication.
(2)
Testimony. All testimony offered at the hearing is
admissible.
(q)
Procedural rights. Each party has the right to:
(1)
establish all pertinent facts and circumstances;
(2)
present an argument without undue interference;
(3)
question or refute any evidence; and
(4)
make an audio recording of the hearing proceedings.
(r)
Audio recording of hearing proceedings. If the hearing
is not a document hearing, then the hearing officer shall make an audio tape
recording of the hearing proceedings. The appellant may request and receive
a copy of the audio tape at minimal charge.
(s)
Record. The record of the hearing closes when the hearing
is adjourned or at the end of the business day on the date that all documents
are required to be filed. The record consists of:
(1)
all documents submitted to the hearings office, together
with the ruling on admissibility made by the hearing officer; and
(2)
the audio recording of the hearing proceedings made
by the hearing officer (as required in subsection (r) of this section), if
the hearing was not a document hearing.
(t)
Decision. Not later than the 10th day after the hearing
record has closed, the hearing officer shall issue a decision. Hearing decisions
must be based exclusively on evidence in the record. The decision shall be
in writing, signed and dated by the hearing officer, and state:
(1)
the names of the parties and their representatives (if
any), and whether they appeared in person or by telephone, if the hearing
was not a document hearing;
(2)
the evidence in the record;
(3)
findings of fact and conclusions of law, separately
stated;
(4)
whether the appealed fee(s) has been sustained, reduced,
or increased; and
(5)
the fee(s) amount.
(u)
Effective date. A decision issued under this section is
effective on the date it is signed by the hearing officer.
(v)
Notice of decision. After the hearing officer signs the
decision, the hearings office shall send a copy of the hearing officer's decision
to the parties in accordance with subsection (g) of this section.
(w)
Finality. The decision of the hearing officer is final.
For the purpose of correcting a clerical error, the hearing officer retains
jurisdiction for 20 calendar days after the date the decision is signed.
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 January 27, 2000.
TRD-200000591
Charles Cooper
Chairman, Texas MHMR Board
Texas Department of Mental Health and Mental Retardation
Effective date: February 17, 2000
Proposal publication date: September 3, 1999
For further information, please call: (512) 206-5216