Part 1.
TEXAS DEPARTMENT OF HUMAN SERVICES
Chapter 4.
MEDICAID PROGRAMS--CHILDREN AND PREGNANT WOMEN
Subchapter A. ELIGIBILITY REQUIREMENTS
40 TAC §4.1002
The Texas Department of Human Services (DHS) proposes an
amendment to §4.1002, concerning application procedures, in its Medicaid
Programs--Children and Pregnant Women chapter. The purpose of the amendment
is to allow expedited processing of Medicaid applications from pregnant women.
The new process will allow for the postponement of certain verifications for
up to 30 days and allow telephone interviews. This change is based on a new
state law, House Bill 2896, passed by the 76th Legislature.
Eric M. Bost, Commissioner, has determined that for the first five-year
period the proposed section will be in effect, there will be no fiscal implications
for state or local governments as a result of enforcing or administering the
section. This change will cause a slight increase in the number of recipient
months. The number of additional recipient months cannot be determined.
Mr. Bost also has determined that for each year of the first five years
the section is in effect, the public benefit anticipated as a result of enforcing
the section is that pregnant women will be certified for Medicaid sooner allowing
them access to the prenatal care necessary to have a healthy baby. There will
be no adverse economic effect on large, small, or micro-businesses because
this change will allow pregnant women to access prenatal care sooner resulting
in fewer complications with their pregnancies. There is no anticipated economic
cost to persons who are required to comply with the proposed section.
Questions about the content of this proposal may be directed to Mary Haifley
at (512) 438-2599 in DHS's Texas Works Department. Written comments on the
proposal may be submitted to Supervisor, Rules and Handbooks Unit-157, Texas
Department of Human Services E-205, P.O. Box 149030, Austin, Texas, 78714-9030,
within 30 days of publication in the
Texas Register
.
Under Section 2007.003(b) of the Texas Government Code, the department
has determined that Chapter 2007 of the Government Code does not apply to
this rule. Accordingly, the department is not required to complete a takings
impact assessment regarding this rule.
The amendment is proposed under the Human Resources Code, Title
2, Chapter 32, which provides the department with the authority to administer
medical assistance programs, and under Texas Government Code §531.021,
which provides the Health and Human Services Commission with the authority
to administer federal medical assistance funds.
The amendment implements the Human Resources Code, §§32.001-
32.042.
§4.1002.Application Procedures.
Applicants for Medicaid programs follow the application procedures
for Temporary Assistance for Needy Families (TANF) described in §3.301(a)(1)
through 3.301(a)(3); §3.301(a)(5); §3.301(b); §3.301(c) of
this title (relating to Responsibilities of Clients and the Texas Department
of Human Services (DHS)); §3.302 of this title (relating to Definitions
Relating to the Application Process); §3.303(a) of this title (relating
to Receipt of Application--Acceptability Factors); §3.304(a) of this
title (relating to Application Interview); and §3.307(a) of this title
(relating to Authorized Representative), with the following exceptions:
(1)-(2)
(No change.)
(3)
Applications for Medicaid from pregnant
women will be processed in an expedited manner and allow for telephone interviews
and postponement of certain verifications for up to 30 days, if necessary.
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 March 2, 2000.
TRD-200001656
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: April 16, 2000
For further information, please call: (512) 438-3108
Chapter 176.
VETERANS HOMES
40 TAC §176.7
The Veterans Land Board proposes an amendment to §176.7,
concerning Admissions Requirements.
The amendment, as proposed, will eliminate the requirement that only Medicaid
eligible veterans may apply for admission to a state veterans home, reduce
the required residency period from two years to one year, provide for the
admission of the veteran's spouse or the unmarried surviving spouse of a veteran,
and eliminate the requirement that service have occurred after September 16,
1940.
Mr. David Gloier, Executive Secretary of the Veterans Land Board, has determined
that for the first five year period the amendment is in effect there will
be no fiscal implications for state or local government or small businesses
as a result of enforcing or administering the rule as proposed.
Mr. Gloier has also determined that for each year of the first five years
the amendment is in effect the public benefit anticipated as a result of enforcing
the amended rule will be as follows: (1) Admission to a state veterans home
will be based on a medical necessity for long term care, as opposed to being
solely based on Medicaid eligibility; (2) The required length of residency
in Texas for non-Texas veterans will be reduced to one year; (3) The spouse
of a living veteran will be eligible for admission to a veterans home, thus
preventing the break up of families, along with the unmarried surviving spouse
of a veteran who died or is identified as missing in action; and (4) Veterans
who served on active duty prior to September 16, 1940, will be eligible for
admission to a state veteran's home.
There is no anticipated economic cost to individuals who are required to
comply with the rule as proposed.
Comments on the proposal may be submitted to Ms. Melinda Tracy, Legal Services
Division, General Land Office, 1700 North Congress Ave., Room 626, Austin,
Texas 78701; facsimile number (512) 463-6311.
The amendment is proposed under the provisions of Natural Resources
Code, §164.002(b), which authorizes the Veterans Land Board to change
the definition of a veteran as necessary or appropriate to protect the best
interest of the program.
The amendment does not effect any statute, code or article.
§176.7. Admissions Requirements.
(a)
Except as provided in subsection (d) of this section,
admission
[
[
The veteran meeting institutional
Medicaid eligibility criteria including financial, age, disability, citizenship
and resident requirements as determined by TDHS;]
[
The veteran passing
the institutional risk criteria as administrated by TDHS;]
[
A determination that
the veteran has a medical necessity by National Heritage Insurance Company
(NHIC); and]
[
The veteran being eligible
to receive and receiving USDVA aid and attendance payments.]
(b)
For purposes of this program, a
[
(1)
is at least 18 years of age
and a citizen of the
United States of America
;
[
is a citizen of the
United States of America;]
[
is a bona fide resident
of Texas at the time of application for admission to said home;]
(2)
[
(A)
has served not less than 90 continuous days
on active duty
in the Army, Navy, Air Force, Coast Guard, Marine Corps,
[
(B)
has enlisted or received an
appointment in the Texas National Guard, who has completed all initial active
duty training required as a condition of the enlistment or appointment, and
who on the date of filing the application has not been dishonorably discharged
from the Texas National Guard; and
[
has not been dishonorably
discharged from military service;]
(3)
[
(4)
The term also includes:
(A)
the unmarried surviving spouse of a veteran who died or
who is identified as missing in action if the deceased or missing veteran
meets the requirements in this section, with the exception that the deceased
or missing veteran need not have served 90 continuous days under subsection
(b)(2)(A) of this section, and if the deceased or missing veteran was a bona
fide resident of Texas at the time of the enlistment, induction, commissioning,
appointment or drafting; and
(B)
the spouse of a living Texas veteran.
(c)
Admission will also be dependent on a
determination that the veteran has a medical necessity requiring long-term
care.
(d)
Notwithstanding any provision above to
the contrary, no more than 25% of the occupants at any one time may be veteran-related
family members; i.e. spouses and/or surviving spouses.
(e)
In considering admission applications,
where possible, preference should be given to veterans who would otherwise
meet institutional Medicaid eligibility criteria, as determined by the Texas
Department of Human Services, but state Medicaid payments may not be used
as part of the veteran's payment for care and residence costs.
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 March 6, 2000.
TRD-200001709
Larry R. Soward
Chief Clerk, General Land Office
Veterans Land Office
Earliest possible date of adoption: April 16, 2000
For further information, please call: (512) 305-9129
Chapter 181.
GENERAL RULES OF PRACTICE AND PROCEDURE
Subchapter A. GENERAL PROVISIONS
40 TAC §181.46
The Texas Commission for the Deaf and Hard of Hearing proposes
new §181.46. The rule is proposed to establish the procedure for filing
a complaint with the Commission.
David W. Myers, Executive Director, has determined that for each year of
the first five years the rule is in effect there will be no fiscal implications
for state or local government as a result of enforcing or administering the
rule.
Mr. Myers has also determined that for each year of the first five years
the rule is in effect the public benefit anticipated as a result of this rule
will be a better understanding of how to file a complaint with the agency.
There will be no effect on small businesses. There is no anticipated economic
hardship to persons required to comply with the rule as proposed.
Comments on this proposed rule may be submitted to Billy Collins, Texas
Commission for the Deaf and Hard of Hearing, P.O. Box 12904, Austin, Texas
78711-2904.
The rule is proposed under the Human Resources Code, §81.006(b)
(3), which provides the Texas Commission for the Deaf and Hard of Hearing
with the authority to adopt rules for administration and programs.
No other statute, code or article is affected by this proposed rule.
§181.46.Filing a Complaint.
Complaints may be filed with the agency in writing via mail, e-mail
or by facsimile and directed to the agency's designated Customer Service
Representative or to the Executive Director.
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 February 28, 2000.
TRD-200001501
David Myers
Executive Director
Texas Commission for the Deaf and Hard of Hearing
Earliest possible date of adoption: April 16, 2000
For further information, please call: (512) 407-3250
Chapter 260.
AREA AGENCY ON AGING ADMINISTRATIVE REQUIREMENTS
The Texas Department on Aging proposes the repeal of the existing §260.1
and simultaneously proposes a new §260.1, relating to Area Agency on
Aging Administrative Responsibilities.
The purpose of this new rule is to ensure Area Agencies on Aging have the
information and direction necessary to fulfill the obligations of their contracts
with the Texas Department on Aging. This knowledge will ensure proper administrative
oversight of the programs funded through the Older Americans Act and the State
of Texas for the benefit of older persons in Texas.
The proposed new section outlines the responsibilities of contractors for
the administration of an Area Agency on Aging. The new rule as proposed includes
subjects relating to the required structure of an Area Agency on Aging, the
requirements for proper program accountability, guidance for the review of
providers, instructions regarding record maintenance and retention, directions
for improving the visibility of the Area Agency on Aging and the Texas Department
on Aging, and other pertinent program requirements.
The Texas Department on Aging staff will recommend to the Board on Aging
the addition of a requirement to recognize the Department as a primary funding
source in all electronic media advertising and information, including but
not limited to, television, radio, and the internet, including all web pages.
This would be accomplished by using the phrase, whether written or spoken,
"Funded by the Texas Department on Aging." This addition would be an expansion
of subsection (i) of this rule. Comments regarding this proposed addition
should be made during this review period.
Subsection (e)(2) of this proposed new section requires records to be maintained
for a minimum period of five years following the end of the federal fiscal
year to which the record pertains. This period appears to be in excess of
that required under the Uniform Grant Management Standards. The beginning
of the period required by the Uniform Grant Management Standards varies depending
upon when the final program reports are filed by the Texas Department on Aging
for a program year with the federal government. The five year period required
in subsection (e)(2) will adequately cover the maximum length of time that
would be required for records retention in the event the final federal filing
is made at the last available date. This will eliminate the need for the Texas
Department on Aging to notify all Area Agencies on Aging of when the retention
period begins for each program year.
Frank Pennington, Director of Program and Fiscal Accountability, has determined
that for the first five-year period the repeal and new section are in effect
there will be no fiscal implications for state government as a result of enforcing
or administering the repeal or the new section. There may be minimal fiscal
implications for local governments if it is determined an additional telephone
line must be installed to meet the requirement in §260.1(h)(3). However,
the exact amount is undeterminable because the exact cost is dependent on
the current telephone system at each Area Agency on Aging and the cost of
any new incoming telephone line that may be necessary. There will be no effect
on small business.
Mr. Pennington also has determined that for each year of the first five
years the rule is in effect the public benefit anticipated will be a program
for older persons that is administered in the most effective manner possible.
Parts of this rule will ensure improved visibility of Area Agencies on Aging
to foster access to services and benefits. Additionally, the Area Agencies
on Aging will have a clearer understanding of their program responsibilities
and authorities for the benefit of all older persons in Texas.
Comments on the repeal and the new rule may be submitted to Frank Pennington,
Director of Program and Fiscal Accountability, Texas Department on Aging,
P. O. Box 12786, Austin, Texas 78711. All comments must be written and delivered
via mail, in person, or facsimile. E-mail and verbal comments cannot be accepted.
All comments must be received within 30 calendar days following the date of
publication of this proposed repeal and new rule in the
Texas Register
.
40 TAC §260.1
(Editor's note: The text of the following section proposed for
repeal will not be published. The section may be examined in the offices of
the Texas Department on Aging or in the Texas Register office, Room 245, James
Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeal is proposed under Texas Human Resources
Code §101.021, which provides the Texas Department on Aging with the
authority to promulgate rules governing the operation of the Department.
Texas Human Resources Code, Chapter 101, Subchapter B, §§101.021
- 101.031, relating to Powers and Duties of Board are affected and implemented
by this proposed action.
§260.1. Area Agency on Aging Administrative Responsibilities.
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 March 2, 2000.
TRD-200001657
Gary Jessee
Program Specialist
Texas Department on Aging
Earliest possible date of adoption: April 16, 2000
For further information, please call: (512) 424-6857
The new section is proposed under Texas
Human Resources Code §101.021, which provides the Texas Department on
Aging with the authority to promulgate rules governing the operation of the
Department.
Texas Human Resources Code, Chapter 101, Subchapter B, §§101.021
- 101.031, relating to Powers and Duties of Board is affected and implemented
by this proposed action.
§260.1. Area Agency on Aging Administrative Responsibilities.
(a)
Purpose. This chapter establishes the responsibilities
of the area agency on aging in developing and maintaining an organized and
efficient system of administration that demonstrates accountability and compliance
with all terms and conditions of the contract.
(b)
Structure.
(1)
Organizational Structure. The organizational structure
of the area agency on aging shall be reflected through job descriptions, staffing
plans and organizational charts which demonstrate its ability to effectively
administer OAA programs and other programs funded by the Department.
(2)
Titles. Each individual selected to perform the duties
of the director shall be identified on the staffing pattern and in job descriptions
as either director, area agency on aging, or as manager, area agency on aging.
(3)
Staff Resources. All positions shall be budgeted
based on the projected percentage of time to be spent performing the duties
of an identified service(s), and documentation will be maintained to support
the actual time spent performing the duties of an identified service(s).
(4)
Conflicts of Interest. An area agency on aging, its
employees, volunteers working within programs of the area agency on aging,
its advisory board/committee members and its governing boards shall seek to
avoid conflicts-of-interest, in fact and perception, and provide proper notification
when potential conflicts-of-interest do occur. Subtitle C, Chapter 171, Local
Government Code shall apply to those persons and entities covered under that
title for all purposes.
(A)
An area agency on aging shall ensure no current employee,
current board member, aging advisory committee member nor representative of
the office of the state long-term care ombudsman, paid or volunteer, holds
a substantial financial interest, directly or indirectly, in the profits of
any entity from which services or goods are contracted or otherwise procured
by the area agency on aging or any long-term care facility, nor derives personal
profit, directly or indirectly, from any entity which would conflict in any
manner or degree with the performance of responsibilities of the employee,
board member, advisory committee member or any representative of the office
of state long-term care ombudsman, paid or volunteer.
(B)
No current employee, current board member or aging advisory
committee member, unless covered under Subtitle C, Chapter 171, Local Government
Code, who exercises any functions or responsibilities in the review or award
of any contract or the procurement of services or goods on behalf of the area
agency on aging, shall:
(i)
participate in any decision relating to the contract or
procurement of services or goods in which he/she has a direct or indirect
substantial personal financial interest; or
(ii)
have a substantial financial interest, directly or indirectly,
in the contract or procurement of services or goods or the proceeds thereof.
(C)
No representative of the office of the state long-term
care ombudsman, paid or volunteer, directly or indirectly, shall:
(i)
have direct involvement in the licensing or certification
of a long-term care facility or of a provider of a long-term care service;
(ii)
have a family member residing in a long-term care facility
to which the representative is assigned or provides advocacy;
(iii)
have ownership or direct investment interest in a long-term
care service;
(iv)
be employed by or participate in the management of a
long-term care facility; or
(v)
receive or have the right to receive, directly or indirectly,
remuneration under a compensation arrangement with an owner or operator of
a long-term care facility.
(D)
Area agencies on aging shall include a requirement in
all Requests for Proposal (RFP) for services to the elderly and requests for
vendor enrollment that any potential conflicts-of-interest be identified in
the RFP response. The notification of potential conflicts-of-interest shall
include:
(i)
the person for which a potential conflict-of-interest
exists;
(ii)
the relationship to any current or former board member,
current or former aging advisory committee member, or current or former employee;
and
(iii)
the nature of the potential conflict-of-interest.
(E)
The person for whom the potential conflict-of-interest
exists shall certify that he/she will abide by all rules established in this
subsection.
(c)
Accountability.
(1)
The area agency on aging shall meet programmatic and fiscal
performance targets (units, persons, unit cost) as outlined in the approved
budget, as amended, within a five percent variance allowed for units and persons.
(2)
The area agency on aging shall submit fiscal and
programmatic reports required by the Department in a timely, complete and
accurate manner.
(3)
Extensions may be negotiated for reports by Department
contract managers according to the circumstances for the request.
(4)
All requests for extension must be made in writing
or through electronic notification to the Program and Fiscal Accountability's
Help Desk and requested on or before the due date of the report for which
a request is made.
(5)
The Department may grant up to two requests for extension
per report. An area agency on aging may be granted no more than six extensions
per federal fiscal year.
(6)
The area agency on aging shall comply with the terms
of all applicable interagency agreements, including, but not limited to, those
agreements that are legislatively mandated or entered into by the Department
on behalf of area agencies on aging.
(d)
Provider Review.
(1)
An area agency on aging shall conduct reviews of provider
program and fiscal activities on a regular and systematic basis. Reviews shall
be conducted through a desk audit and on-site review. A risk assessment will
be conducted annually to determine the necessity of an on-site review.
(2)
The area agency on aging shall conduct a risk assessment
and on-site review utilizing programmatic and fiscal monitoring work papers
developed and furnished by the Department.
(3)
The area agency on aging shall measure customer satisfaction
through an annual customer satisfaction survey sample of program participants/clients.
(4)
The area agency on aging will develop and follow
policies and procedures for imposing penalties and/or sanctions upon contractors/subcontractors
for non-performance of the contract agreement or non-compliance with service
delivery requirements.
(e)
Records. The area agency on aging must provide for the
development, maintenance, and retention of records in accordance with the
Uniform Grant Management Standards, Subpart C and as follows:
(1)
establish written procedures to adequately assure proper
development, maintenance and retention of all financial records, supporting
documents, statistical records and all other records relating to its performance;
(2)
maintain all records for a minimum of five years
following the end of the federal fiscal year to which the record pertains
and until any pending litigation, claim or audit findings, issuance or proposed
disallowed costs or other disputes have been resolved. A multi-site area agency
on aging may maintain all records at a designated central location;
(3)
give the Department, the Comptroller General of the
United States and the State of Texas through any authorized representatives,
the access to and right to examine all records, books, papers, contracts,
client records, unless specifically prohibited by law, or other documents
related to Department funded programs. Such examination may require access
to papers, billings, vouchers or other documents not directly related to the
area agency on aging if the purpose of such access is to review charges to
any indirect costs pool. Such right of access shall continue as long as such
records are in existence.
(4)
the area agency on aging shall require that subcontractors/service
providers adhere to paragraphs (1), (2) and (3) of this subsection, as applicable.
It is not required that subcontractors/service providers' records be kept
at the area agency on aging.
(f)
Targeting.
(1)
Area agencies on aging shall target service delivery in
accordance with the OAA, as amended.
(2)
The area agency on aging shall require that subcontractors/service
providers adhere to paragraph (1) of this subsection.
(g)
Visibility.
(1)
Each area agency on aging shall use the logo designed
by the Department to assure that a uniform, statewide symbol for area agencies
on aging designation for public information purposes is employed.
(2)
The logo below shall be used whenever an area agency
on aging develops printed material.
Figure: 40 TAC §260.1(g)(2)
(h)
Uniform Telephone Listings.
(1)
The telephone number of each area agency on aging, the
area agency on aging's information and assistance toll-free number and the
area agency on aging's nursing home ombudsman toll-free number shall appear
in each telephone directory published by the provider of local telephone service
for residents in any geographical area that lies in whole or in part in the
planning and service area served by the area agency on aging.
(2)
The listings shall appear in the unclassified sections
and government sections of the phone book. If the area agency on aging serves
a major metropolitan area, it shall list its toll-free number(s) in the classified
section of the telephone directory(ies).
(3)
The listing shall begin with the words "Area Agency
on Aging," and the phone shall be answered "Area Agency on Aging."
(i)
The area agency on aging shall cite the Texas Department
on Aging as its primary funding source using the phrase, "Funded by the Texas
Department on Aging" on all printed material.
(j)
Identification of Area Agency on Aging Facilities. A sign
will be predominantly displayed outside the location used as the Area Agency
on Aging.
(1)
This sign will adhere to local ordinances concerning signs.
(2)
The sign will conform to the uniform logo requirements
identified in this chapter.
(k)
Emergency Management.
(1)
When a disaster occurs, the area agency on aging will
notify the Department of its need to provide for emergency management activities,
provide information to the Department regarding the impact of the disaster
on the elderly population in its service area, provide emergency management
services in accordance with current AoA disaster relief guidelines and collect
pertinent data necessary to submit reimbursement requests for disaster services.
(2)
The area agency on aging shall consult with the appropriate
agencies that have an interest or role in meeting the needs of the elderly
in planning for, during, and after natural, civil defense and/or man-made
disasters. To accomplish this, the area agencies on aging shall:
(A)
appoint an emergency management coordinator;
(B)
participate in planning activities with other entities
and organizations that are charged to meet the needs of disaster victims in
emergency situations, as appropriate;
(C)
require by contract stipulation that service providers
develop plans for emergency management; and
(D)
provide technical assistance as necessary to subcontractor/service
provider staff regarding emergency management activities.
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 March 2, 2000.
TRD-200001658
Gary Jessee
Program Specialist
Texas Department on Aging
Earliest possible date of adoption: April 16, 2000
For further information, please call: (512) 424-6857
40 TAC §260.2
(Editor's note: The text of the following section proposed for
repeal will not be published. The section may be examined in the offices of
the Texas Department on Aging or in the Texas Register office, Room 245, James
Earl Rudder Building, 1019 Brazos Street, Austin.)
The Texas Department on Aging proposes the repeal
of the existing §260.2 and simultaneously proposes a new §260.2,
relating to Area Agency on Aging Fiscal Responsibilities.
The purpose of this new rule is to ensure Area Agencies on Aging have the
information and direction necessary to fulfill the obligations of their contracts
with the Texas Department on Aging. This knowledge will ensure proper fiscal
administration and oversight of the programs funded through the Older Americans
Act and the State of Texas for the benefit of older persons in Texas.
The proposed new section outlines the fiscal responsibilities of contractors
for the financial administration of an Area Agency on Aging. The new rule
as proposed includes subjects relating to purchasing, audit requirements,
the development and approval of an indirect costs allocation plan, contract
certifications, budget submissions, contracting, funding match requirements,
and other pertinent fiscal requirements.
Frank Pennington, Director of Program and Fiscal Accountability, has determined
that for the first five-year period the repeal and new section are in effect
there will be no fiscal implications for state or local governments as a result
of enforcing or administering the repeal or the new section. There will be
no effect on small businesses.
Mr. Pennington also has determined that for each year of the first five
years the rule is in effect the public benefit anticipated will be a program
for older persons that is administered in the most fiscally effective manner
possible. This rule will ensure strong accountability of all Area Agencies
on Aging in the administration of programs as well as service delivery. Area
Agencies on Aging will have a clearer understanding of their fiscal responsibilities
and authorities for the benefit of all older persons in Texas.
Comments on the repeal and the new rule may be submitted to Frank Pennington,
Director of Program and Fiscal Accountability, Texas Department on Aging,
P. O. Box 12786, Austin, Texas 78711. All comments must be written and delivered
via mail, in person, or facsimile. E-mail and verbal comments cannot be accepted.
All comments must be received within 30 calendar days following the date of
publication of this proposed repeal and new rule in the
Texas Register
.
The proposed repeal is proposed under Texas Human Resources Code §101.021,
which provides the Texas Department on Aging with the authority to promulgate
rules governing the operation of the Department.
Texas Human Resources Code, Chapter 101, Subchapter B, §§101.021
- 101.031, relating to Powers and Duties of Board are affected and implemented
by this proposed action.
§260.2. Area Agency on Aging Fiscal Responsibilities.
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 March 2, 2000.
TRD-200001660
Gary Jessee
Program Specialist
Texas Department on Aging
Earliest possible date of adoption: April 16, 2000
For further information, please call: (512) 424-6857
The new section is proposed under Texas
Human Resources Code §101.021, which provides the Texas Department on
Aging with the authority to promulgate rules governing the operation of the
Department.
Texas Human Resources Code, Chapter 101, Subchapter B, §§101.021
- 101.031, relating to Powers and Duties of Board are affected and implemented
by this proposed action.
§260.2. Area Agency on Aging Fiscal Responsibilities.
(a)
Purpose. An area agency on aging shall demonstrate and
maintain fiscal integrity in order to comply with the requirements of the
Governing Documents as listed in §254.3 of this title (relating to Governing
Documents); all Texas Department on Aging Rules; the Department's policies
related to the Cash Management Improvement Act, 31 Code of Federal Regulations
Part 205, a Treasury-State agreement; and with all state and local laws as
pertains to the financial operation of an area agency on aging. Policies,
procedures, standards, program instructions, and technical assistance memorandums
shall be promulgated by the Department, as necessary, in order to support
and interpret these rules and laws. The Department shall be the final authority
in determining how these interpretations shall pertain to programs for older
persons. The area agency on aging shall comply with the following financial
criteria.
(b)
Purchases. All purchases of service, materials, equipment
and goods made with grant funds shall follow the criteria of allowability
as prescribed in the Uniform Grant Management Standards, as adopted by the
Governor's Office of Budget and Planning, including OMB Circulars A-87 or
A-122, as applicable, and the following.
(1)
All purchases shall have been made by actual receipt of
the service or merchandise or issuance of a purchase contract, voucher, or
other legal document that binds both parties to the transaction, no later
than the last day of the grant period for which funds have been budgeted and
encumbered.
(2)
Actual receipt of the service or merchandise and
payment shall be made prior to the due date of the closeout report for the
grant period for which funds have been budgeted and encumbered.
(3)
Any service or merchandise placed on order in a fiscal
program year, in accordance with subsection (a) of this section and not meeting
the criteria in subsection (b) of this section, shall be paid for with funds
awarded for the fiscal year in which the service or merchandise was actually
received and/or payment made.
(c)
Independent Audit.
(1)
An area agency on aging receiving more than $300,000 in
federal or state funding from all sources shall provide an audit in accordance
with the standards for financial and compliance audits contained in the Standards
for Audit of Governmental Organizations, Programs, Activities and Functions,
issued by the U.S. General Accounting Office; the Single Audit Act of 1984,
including all updates and revisions; the provisions of OMB Circular A-133,
Audits of States, Local Governments, and Nonprofit Organizations, as applicable,
and the Uniform Grant Management Standards.
(2)
The audit shall cover the entire organization and
be conducted in accordance with generally accepted auditing standards. Additionally,
audits shall be conducted in accordance with audit guidelines promulgated
by the Department, or the Single Audit Manager's Forum (SAMF) or other authoritative
source with prior written approval from the Department.
(3)
The area agency on aging shall provide and furnish
the Department with an annual audit by an independent certified public accounting
firm in accordance with OMB Circular A-133 within 30 calendar days following
receipt of such audit, but in no case more than nine months following the
end of the area agency on aging's fiscal year end.
(4)
An area agency on aging shall require all subcontractors
to adhere to paragraphs (1) and (2) of this subsection, relating to the requirements
for an independent audit in accordance with OMB Circular A-133.
(d)
Indirect Costs Allocation Plan.
(1)
The area agency on aging shall have an Indirect Costs
Allocation Plan approved in accordance with the Uniform Grant Management Standards.
Documentation of compliance with the above must be submitted to the Department
for any period covered under this contract no later than the first of September
immediately proceeding the contract period.
(2)
An Indirect Costs Allocation Plan shall be submitted
for approval to the Department by all area agencies on aging for whom the
Department is the designated state coordination agency, no later than 60 days
before the beginning of the contract period.
(3)
All Indirect Costs Allocation Plans submitted to
the Department for approval must have sufficient detail, as defined by the
Department, to allow proper evaluation of the plan.
(e)
Disallowance of Costs.
(1)
In accordance with OMB Circular A-133 and Uniform Grant
Management Standards, determination shall be made by independent audit and/or
monitoring visit by the Department relating to the allowable use of federal,
state and matching credit funds in accordance with OMB Circulars A-87, A-122
and other applicable laws, regulations and circulars promulgated by recognized
authoritative bodies.
(2)
Costs found to be unallowable, in accordance with
those referenced in paragraph (1) of this subsection, relating to the allowable
use of funds, shall be designated as questioned costs.
(3)
To recover unresolved questioned costs revealed in
an audit or monitoring visit, the Department will send a Letter of Notification
of Disallowance with Intent to Recover Costs by certified or registered mail,
return receipt requested within 60 calendar days following the failure to
resolve all such questioned costs. The 60 calendar day period shall begin
the next day following the six months allowed for resolution in accordance
with OMB Circular A-133.
(4)
Notification of disallowance resulting from questioned
costs revealed during an independent audit or monitoring visit shall be issued
by the Department.
(5)
The area agency on aging shall resolve all findings
and questioned costs within six months of receipt of the audit or notice of
questioned costs unless an extension has been granted as directed by the Department.
(6)
The area agency on aging shall be liable to the Department
for any costs disallowed as a result of unresolved questioned costs revealed
during an audit or monitoring relating to aging programs and/or expenditures.
(7)
Failure of the area agency on aging to secure an
acceptable independent audit from a subcontractor, when required by law, within
the timeframe established in paragraph (5) of this subsection, relating to
the recovery of questioned costs shall be deemed non-resolution. Non-resolution
under this subparagraph shall be considered a violation under §254.13(f)(11)
of this title (relating to Compliance with Contractor Responsibilities, Rewards
and Penalties).
(8)
Disallowance resulting from non-receipt of required
subcontractor audits shall be resolved in the same manner as if revealed by
an independent audit or a monitoring visit.
(f)
Recapture of Payments.
(1)
Recapture of payment may occur when costs have been disallowed
by the Department, or if the area agency on aging has received funds in excess
of those actually earned. The Department may take appropriate action including
requiring the repayment of and/or withholding of funds in such cases that
overpayment has occurred.
(2)
Any area agency on aging having funds recaptured
because of a disallowance, in accordance with subsection (e) of this section
relating to disallowance, shall waive all rights to such funds and shall not
receive any of the funds upon reallocation.
(g)
Contract Certifications. Certifications required of all
area agencies on aging include but are not limited to:
(1)
Debarment and Suspension.
(A)
The area agency on aging shall not knowingly deal with
any person, business or other entity which has been suspended or debarred
from receiving federal funds under 45 Code of Federal Regulations §76.200,
concerning non-procurement, or 45 Code of Federal Regulations, Part 1229,
Government wide Debarment and Suspension (Non-procurement) and Government
wide Requirements for Drug-Free Workplace (Grants).
(B)
For each federal fiscal year the area agency on aging
shall secure a Certification Regarding Debarment, Suspension, Ineligibility
and Voluntary Exclusion for Covered Contracts and Grants from any potential
subcontractor, of any tier, for which such certification is required, prior
to issuing any award, grant or contract.
(2)
Americans with Disabilities Act. The area agency
on agency shall not purchase services from any subcontractor not in compliance
with the provisions of the Americans with Disabilities Act.
(h)
Budget Submissions.
(1)
An area agency on aging, on an annual basis, shall submit
a budget in a format directed by the Department which reflects the scope of
the approved area plan.
(2)
An amended budget must be submitted to and approved
by the Department prior to implementation of the amended budget.
(3)
Budget submissions shall be due to the Department
no later than 45 days following the date of notification.
(i)
Contracting.
(1)
The authority for the area agency on aging to enter into
service provider contracts is based on the Older Americans Act of 1965, as
amended, and its regulations; HHS regulations on Administration of Grants;
Title 45 Code of Federal Regulations, Part 74; Title 45 Code of Federal Regulations,
Part 92; Title 45 Code of Federal Regulations, Part 1321,
et seq.
; Title 45 Code of Federal Regulations, Part 91; and all policies
and rules established by the Department; and with all state and local laws
as they pertain to contracting and reimbursement methodologies. The area agency
on aging and all subcontractors/service providers shall comply therewith.
(2)
When purchasing services, the area agency on aging
shall use the following cost determination methodologies for the purchase
of goods and services. These methodologies are known as cost reimbursement,
performance based unit rate and variable unit rate.
(A)
Cost Reimbursement. In cost reimbursement contracts, the
area agency on aging pays the subcontractor on a reimbursement basis for services
rendered. Reimbursement shall not be adjusted to offset poor management planning.
Adjustments to the share of expenses that federal and/or state funds will
pay must be requested in writing by the subcontractor/service provider and
may only be considered by the area agency on aging in instances where:
(i)
a subcontractor experiences significant operating losses
due to events over which they have no control or reasonably could not have
anticipated; or
(ii)
a subcontractor experiences excess revenues over operational
costs due to unanticipated, and/or unbudgeted additional resources; or
(iii)
reductions in expenses due to a change in cost allocation
methodology.
(B)
Performance Based Unit Rate. In performance based unit
rate contracting, the area agency on aging agrees to pay the subcontractor/service
provider in the amounts and upon the terms, provisions and budgets as set
forth in its contract with the subcontractor/service provider as a result
of negotiation of a suitable unit rate. The subcontractor/service provider
agrees to deliver specific services on an at-risk basis.
(C)
Variable Unit Rate. Variable unit rate contracting allows
for rate variation that is specific to a unit of service. This method would
be used primarily for services such as health maintenance and residential
repair but is not limited to these services.
(3)
Direct Purchase of Services. Direct purchase
of services contracting allows for the purchase of service(s) on a client-by-client
basis. Direct purchase of services requirements are identified in §260.19
of this title (relating to Direct Purchase of Services).
(4)
Sole Source Procurement. The sole source procurement
method may be used only when the award of a contract is not feasible under
the other procurement methods. In this event, the area agency on aging shall
comply with the procedures established in 45 Code of Federal Regulations Part
92.36(d)(4), concerning procurement by noncompetitive proposals.
(5)
Competitive Bidding. Area agencies on aging shall
comply with competitive bidding procedures to promote fair and open competition
in the procurement process through the use of formal bidding, informal bidding
or competitive proposals, as appropriate. Documentation shall be maintained
by the area agency on aging to demonstrate all such efforts.
(6)
The area agency on aging shall attach to the subcontractor/service
provider contract, all relevant sections of the Texas Administrative Code
relating to the service(s) provided regardless of the procurement process
used.
(7)
All subcontractor/service provider contracts shall
require a subcontractor/service provider to have an accounting system which
identifies all costs for each specific service being purchased or provided
and which complies with 45 Code of Federal Regulations, §1321, Subpart
D.
(j)
Service Match.
(1)
In order to meet the match requirements of the Older Americans
Act, 1965, as amended, §304(d), area agencies on aging and their service
providers shall provide a minimum of 10% non-federal match funds for the cost
of all Older American Act services.
(2)
The non-federal share of service funding shall be
in cash or in kind.
(3)
In-kind shall be based on fair market value of the
services and goods provided at the time they are provided.
(k)
Area Agency on Aging Administrative Match.
(1)
In order to meet the match requirements of the Older Americans
Act, 1965, as amended, §304(d), area agencies on aging shall provide
a minimum of 25% non-federal match funds for the cost of administration of
area plans.
(2)
The non-federal share of service funding shall be
in cash or in kind.
(3)
In-kind shall be based on fair market value of the
services and goods provided at the time of provision.
(l)
Program Income.
(1)
Program income contributions shall be administered in
accordance with 45 Code of Federal Regulations, Part 1321; 45 Code of Federal
Regulations, Part 92.25; and the Uniform Grant Management Standards.
(2)
Cost Reimbursement. Reimbursement shall not be made
in excess of actual allowable expenses less program income received during
the reimbursement period.
(3)
Performance Based Unit Rate. Program income received
shall not be deducted from the amount paid to subcontractor/service provider.
(4)
Direct Purchase of Services. When an area agency
on aging or other designated access and assistance service provider purchases
services using the direct purchase of service methodology, program income
must be collected, accounted for and used to support and enhance services
provided by the area agency on aging.
(m)
Adequate Proportion.
(1)
Each area agency on aging shall establish and meet an
adequate proportion of funding they receive under Title III, Part B, of the
Older Americans Act, §306(a)(2), as amended, for support services in
the budget.
(2)
Adequate proportion of funding for support services
shall include each of the following support services categories and their
designated services:
(A)
services associated with access to services (transportation,
outreach, information and assistance and case management services);
(B)
in-home services (homemaker and home health aides, visiting
and telephone assurance, chore maintenance and supportive services for families
of older individuals who are victims of Alzheimer's disease and related disorders
with neurological and organic brain dysfunction); and
(C)
legal assistance.
(3)
An area agency on aging may propose a change
in the local adequate proportion funding level for any of the support service
categories through written request to the Department prior to the beginning
of the fiscal year.
(4)
An area agency on aging may seek a waiver from the
Department for setting and expending an adequate proportion of Title III,
Part B funds for support service categories.
(A)
At least one public hearing shall be held on the area
plan or area plan amendment containing a request for waiver of adequate proportion.
The area agency on aging shall notify all interested parties in the area of
the public hearing and provide them with an opportunity to testify.
(B)
The area agency on aging shall provide appropriate justification
to demonstrate an adequate supply of a specified support service is available
to meet the needs of the service area.
(C)
Separate waiver requests shall be submitted for each category
of support services for which a waiver is sought.
(n)
Ombudsman Maintenance of Effort. Area agencies on aging
shall meet the requirements for maintenance of effort for ombudsman activities
as defined in the Older Americans Act §306(a)(11).
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 March 2, 2000.
TRD-200001659
Gary Jessee
Program Specialist
Texas Department on Aging
Earliest possible date of adoption: April 16, 2000
For further information, please call: (512) 424-6857
40 TAC §260.15
(Editor's note: The text of the following section proposed for
repeal will not be published. The section may be examined in the offices of
the Texas Department on Aging or in the Texas Register office, Room 245, James
Earl Rudder Building, 1019 Brazos Street, Austin.)
The Texas Department on Aging proposes the repeal
of the existing §260.15, relating to Responsibilities of Contractor for
Carryover of Unexpended Older Americans Act Funds and Any Other Unexpended
Funds Issued by the Department, and simultaneously proposes new §260.15,
relating to Criteria for Administering Carryover of Unexpended Funds.
The purpose of this new rule is to ensure Area Agencies on Aging have the
information and direction necessary to fulfill the obligations of their contracts
with the Texas Department on Aging. Additionally, the Area Agencies on Aging
will understand the requirements for obtaining second year spending authority
for unexpended funds of a program year. This knowledge will ensure proper
administrative oversight of the funds provided through the Older Americans
Act and the State of Texas for the benefit of older persons in Texas.
The proposed new section outlines the criteria to be met in order to receive
unexpended funds from one year with authority for expenditure in a second
program year. Additionally, the proposed new section describes the process
for establishing a carryover funding pool and the requirements to be met for
participation in the distribution of the funds in the pool.
Frank Pennington, Director of Program and Fiscal Accountability, has determined
that for the first five-year period the repeal and new section are in effect
there will be no fiscal implications for state or local governments as a result
of enforcing or administering the repeal or the new section. There will be
no effect on small businesses.
Mr. Pennington also has determined that for each year of the first five
years the rule is in effect the public benefit anticipated will be a program
for older persons that receives the maximum funds available for service delivery
within each regional area. This rule will ensure strong accountability of
all Area Agencies on Aging in the fiscal management of programs for the elderly.
Area Agencies on Aging will have a clearer understanding of their fiscal responsibilities
and authorities for the benefit of all older persons in Texas.
Comments on the repeal and the new rule may be submitted to Frank Pennington,
Director of Program and Fiscal Accountability, Texas Department on Aging,
P. O. Box 12786, Austin, Texas 78711. All comments must be written and delivered
via mail, in person, or facsimile. E-mail and verbal comments cannot be accepted.
All comments must be received within 30 calendar days following the date of
publication of this proposed repeal and new rule in the
Texas Register
.
The proposed repeal is proposed under Texas Human Resources Code §101.021,
which provides the Texas Department on Aging with the authority to promulgate
rules governing the operation of the Department.
Texas Human resources Code, Chapter 101, Subchapter B, §§101.021
- 101.031, relating to Powers and Duties of Board are affected and implemented
by this proposed action.
§260.15. Criteria for Administering Carryover of Unexpended Funds.
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 March 2, 2000.
TRD-200001661
Gary Jessee
Program Specialist
Texas Department on Aging
Earliest possible date of adoption: April 16, 2000
For further information, please call: (512) 424-6857
The new section is proposed under Texas
Human Resources Code §101.021, which provides the Texas Department on
Aging with the authority to promulgate rules governing the operation of the
Department.
Texas Human Resources Code, Chapter 101, Subchapter B, §§101.021
- 101.031, relating to Powers and Duties of Board are affected and implemented
by this proposed action.
§260.15. Criteria for Administering Carryover of Unexpended Funds.
(a)
Purpose. This chapter establishes the responsibilities
of the Department for administering the carryover of unexpended funds and
establishes the criteria under which an area agency on aging may receive unexpended
funds.
(b)
Approval of Carryover.
(1)
An amount up to 5% or $100,000, whichever is less, of
the total Title III and Title VII funds allocated to each area agency on aging
may be eligible for consideration for carryover approval.
(2)
Funds awarded in the third and fourth quarter shall
not be included in the total award for calculation purposes of the 5%.
(c)
Establishment of the Carryover Pool. All funds exceeding
the approved carryover will be placed in a statewide carryover pool for reallocation
to eligible area agencies on aging.
(d)
Eligibility for Participation in the Distribution of the
Carryover Pool. An area agency on aging must meet the following performance
criteria to participate in the reallocation of the statewide carryover pool:
(1)
100% of reports submitted on time;
(2)
adherence to end of year carryover fiscal guidelines
outlined above in subsection (b)(1) of this section;
(3)
no level three or level four violations cited during
the previous fiscal year in accordance with 40 TAC §254.13;
(4)
no unpaid amounts due to the Department for disallowed
costs for the fiscal year from which carryover funds are being reallocated
unless a prior payment agreement has been established or is pending final
Department approval;
(5)
adherence to all requirements for adequate proportion
for eligible in-home services, access services and legal services unless waiver
from such requirements has been obtained from the Department; and
(6)
adherence to all requirements for maintenance of
effort for the Ombudsman program.
(e)
Distribution of Carryover Pool Funds.
(1)
50% of carryover pool funds will be reallocated equally
among all eligible area agencies on aging.
(2)
The remaining 50% of carryover pool funds will be
reallocated to eligible area agencies on aging based upon the approved Title
III funding formula.
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 March 2, 2000.
TRD-200001662
Gary Jessee
Program Specialist
Texas Department on Aging
Earliest possible date of adoption: April 16, 2000
For further information, please call: (512) 424-6857
Part 5.
VETERANS LAND BOARD
Admission
] to a state veterans home shall be limited
to Texas Veterans. [
During the biennium ending August 31, 1999, admission
will also be dependent on:
]
(1)
(2)
(3)
(4)
A
]
Texas Veteran is someone who:
(2)
(3)
(4)
]
Meets the following
service requirements:
or
] United States Public Health Service
or reserve component
of one of the listed branches of service
, unless discharged earlier
because of a service-connected disability, [
which service must have been
after September 16, 1940,
]
and who has not been dishonorably discharged
from military service;
or [
have completed at least 20 years of
active or reserve military service in any of the above branches of service,
as computed when determining the person's eligibility to receive retirement
pay;
]
(5)
(6)
] was a bona fide resident
of Texas at the time of enlistment, induction, commissioning,
appointment
or drafting; or has resided in Texas continuously for at least
one year
[
two years
] immediately before applying for admission.
For purposes of determining if a veteran has resided in Texas for
one
year
[
two continuous years
], the Board may require an affidavit
from the veteran or the veteran's guardian, setting forth residence addresses
for this
one-year
[
two-year
] period. In addition, the
veteran, and/or guardian may be required to furnish documentary evidence of
such residence, including, but not limited to driver's licenses, voter registrations,
tax receipts, W-2 forms, etc.
Part 6.
TEXAS COMMISSION FOR THE DEAF AND HARD OF HEARING
Part 9.
TEXAS DEPARTMENT ON AGING