Part 2.
TEXAS REHABILITATION COMMISSION
Chapter 101.
GENERAL RULES
40 TAC §101.24
The Texas Rehabilitation Commission (TRC) adopts an amendment
to §101.24(b)(5), concerning Responsibilities of the Commissioner, without
changes to the proposed text as published in the January 26, 2001, issue of
the
Texas Register
(26 TexReg 943).
The amendment is being adopted to comply with the provisions of Human Resources
Code §111.024.
No comments were received regarding adoption of the amendment.
The amendment is adopted under the Texas Human Resources Code,
Title 7, Chapter 111, §111.018 and §111.023, which provides the
Texas Rehabilitation Commission with the authority to promulgate rules consistent
with Title 7, Texas Human Resources Code.
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 26, 2001.
TRD-200101757
Charles Schiesser
Chief of Staff
Texas Rehabilitation Commission
Effective date: April 15, 2001
Proposal publication date: January 26, 2001
For further information, please call: (512) 424-4050
Chapter 175.
GENERAL RULES OF THE VETERANS LAND BOARD
40 TAC §175.2
The Veterans Land Board of the State of Texas (the "Board")
adopts the proposed amendments to Title 40, Part 5, Chapter 175, §175.2
of the Texas Administrative Code relating to Loan Eligibility Requirements.
The amendments are adopted with changes to text as proposed in the December
8, 2000, edition of the
Texas Register
(25
TexReg 12167). New text was added at (f)(3) to clarify the meaning of the
paragraph and other nonsubstantive, grammatical and punctuation errors have
been corrected throughout the section.
The adopted amendments concern the eligibility of persons to participate
in the Veterans Land Program (the "program"). The Board has amended its general
rules (Chapter 175) to describe persons eligible to participate in the Veterans
Land Program. This adopted amendment changed the order of the text of the
rule, created additional subsections, and has defined terms. The adopted amendment
will permit the Board to more clearly refer to the provisions of §175.2
(relating to Loan Eligibility Requirements) in other rules.
Section 175.2 (relating to Loan Eligibility Requirements) describes eligibility
requirements for the Veterans Land Program. The adopted amendment has also
added definitions for the terms "Board," "Bona fide resident," "Missing/Missing
in Action," "Program," "Surviving Spouse," "USDVA/VA," and "Veteran." These
terms are used in all other sections of Chapter 175 (relating to General Rules
of the Veterans Land Board). The adopted amendment has deleted the descriptions
of procedures for evidencing eligibility and authorizes the Board to adopt
resolutions from time to time that provide for such procedures.
The adopted amendments are a preliminary step to establishing a single
standard for eligibility in all loan programs administered by the Board. The
adopted amendment has new subsections in the rule and orders the text in such
a way that other rules may adopt the provisions of this rule by reference.
This adopted amendment protects the best interests of this program by making
the eligibility language easier to understand and providing the foundation
for a single standard for all loan programs administered by the Board.
No comments were received regarding the proposed amendments.
The section is adopted under the Natural Resources Code, Title
7, Chapter 161, §161.063 (relating to Rules), which provides authorization
for the Board to adopt rules concerning the operation of the program, and
under Chapter 161, §161.001(b) (relating to Definitions), which authorizes
the Board to change the definition of "veteran."
Natural Resources Code 161.001(a)(7) (relating to Definitions) is affected
by this adopted action.
§175.2.Loan Eligibility Requirements.
(a)
The following words and terms, when used in this chapter,
shall have the following meanings, unless the context clearly indicates otherwise:
(1)
Board--The Veterans Land Board of the State of Texas.
(2)
Bona fide resident--An individual actually living within
the State of Texas with the intention to remain.
(3)
Missing/Missing in Action--To have an official designation
of "missing status" as provided by Title 37, Chapter 10 of the United States
Code relating to Payments to Missing Persons. The term "missing status" means
the status of members of a uniformed service who are officially carried or
determined to be absent in a status of missing; missing in action; interned
in a foreign country; captured; beleaguered, or besieged by a hostile force;
or detained in a foreign country against their will.
(4)
Program--The Veterans Land Program as authorized by Title
7, Chapter 161 of the Texas Natural Resources Code relating to Veterans Land
Board.
(5)
Surviving spouse--A person of the opposite sex who was
the spouse of a veteran at the time of the veteran's death, and who lived
with the veteran continuously from the date of marriage to the date of the
veteran's death (except where there was a separation which was due to the
misconduct of, or procured by, the veteran without the fault of the spouse)
and who has not remarried or (in cases not involving remarriage) has not since
the death of the veteran, and after September 19, 1962, lived with another
person and held himself or herself out openly to the public to be the spouse
of the other person.
(6)
USDVA/VA--The United States Department of Veterans Affairs
or any successor thereto.
(7)
Veteran--A person who satisfies the requirements of subsection
(c)(1) of this section.
(b)
The Board shall be the final authority in defining and
interpreting all eligibility requirements, and whether an applicant has actually
satisfied those requirements. The Board may by resolution prescribe the procedures
and forms to be used by applicants to evidence eligibility.
(c)
To be eligible to participate in the program, an applicant
must satisfy one of the following:
(1)
be a person who:
(A)
is at least 18 years of age;
(B)
is a bona fide resident of Texas at the time of application
for a loan. Active duty military personnel who otherwise meet the requirements
of this subsection are eligible even though stationed outside of Texas at
the time of application;
(C)
satisfied one of the following service requirements after
September 16, 1940:
(i)
has served not less than 90 continuous days of active duty
or active duty training time in the Army, Navy, Air Force, Coast Guard, Marine
Corps, United States Public Health Service, or the reserve component of one
of the listed branches of service, unless discharged earlier because of a
service-connected cause;
(ii)
has completed all initial active duty training required
as a condition of the enlistment or appointment in the Texas National Guard;
or
(iii)
has at least 20 years of active or reserve military service
as computed when determining the applicant's eligibility to receive retired
pay under applicable federal law.
(D)
has not been dishonorably discharged from military service;
and
(E)
satisfies one of the following:
(i)
was a bona fide resident of Texas at the time of enlistment,
induction, commissioning, appointment or drafting, or have been a legal resident
of Texas at least two years immediately prior to the date of filing his or
her application; or
(ii)
has resided in Texas continuously for a least two years
immediately before the date of application.
(2)
is the surviving spouse of a veteran who died as a result
of a service-connected cause, as certified by the USDVA, or who is identified
as missing in action, if the spouse satisfies the requirements of subparagraphs
(A) and (B) of subsection (c)(1) of this section, and the veteran satisfied
the requirements of subparagraphs (C), (D) and (E)(i) of subsection (c)(1)
of this section.
(3)
is the surviving spouse of a veteran who died after filing
an application and contract of sale with the Board, but before the transaction
was completed, if he or she meets all other qualification requirements of
the Board.
(d)
A person may only have one loan at a time as a veteran.
However, once that loan is paid in full he or she may apply for an additional
loan as a veteran. The foregoing notwithstanding, an individual who is currently
participating in the program as a veteran may take an assignment of a contract
or contracts as a non-veteran and may bid on a tract or tracts at a forfeited
land sale as a non-veteran.
(e)
The applicant must sign applications and contracts. An
attorney in fact may not sign these documents for an applicant.
(f)
No application shall be approved to purchase land under
the program:
(1)
which provides for or recognizes a second or subordinate
lien as a part of the original purchase price for any tract;
(2)
where there is evidence that the benefits derived from
the use of the land will not pass to the applicant; or
(3)
where there exists any other good and sufficient reason
to refuse approval, as determined by the chairman of the Board.
(g)
If for any reason a veteran's application is not processed
to completion, the down payment will be refunded to the veteran, together
with the unused portion of any fees that have been deposited with the board.
(h)
Each application will be considered as a wholly separate
transaction, independent of any other agreement, transaction or contingency.
The board will not consider an application which contains a provision making
it contingent upon the success or completion of another agreement or transaction.
(i)
Any requirement of this section, or of any section within
this chapter, which is not otherwise required by the constitution or statutes
of this state, may be waived on a case by case basis by the Veterans Land
Board. Any waiver request must be in writing and must describe the circumstances
surrounding the request, including all of the reasons why the waiver is requested.
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 26, 2001.
TRD-200101755
Larry R. Soward
Chief Clerk, General Land Office
Texas Veterans Land Board
Effective date: April 15, 2001
Proposal publication date: December 8, 2000
For further information, please call: (512) 305-9129
40 TAC §176.1, §176.7
The Veterans Land Board of the State of Texas (the "Board")
adopts the proposed amendments to 40 TAC §176.1 relating to Definitions
and §176.7 relating to Admission Requirements. The amendments are adopted
with nonsubstantive changes to the text as published in the November 17, 2000,
edition of the
Texas Register
(25 TexReg 11377).
In §176.7(a) the word "quality" has been changed to "qualify" and other
nonsubstantive, grammatical or punctuation errors have been corrected throughout
both sections.
The adopted action to the rules concern the eligibility of persons to participate
in the Veterans Homes program ("the program"). In order to be approved for
the benefits of the program, the applicant must: (1) be certified as an eligible
Texas veteran, as defined in Chapter 176 (relating to Veterans Homes), and
(2) satisfy all medical, financial, and military service requirements of the
United States Department of Veterans Affairs (the "USDVA") as set forth in
USDVA regulations from time-to-time.
Section 176.1 relating to Definitions now defines terms used in all other
sections of Chapter 176 (relating to Veterans Homes). The adopted amendments
also correct the definition for "operator" and now has definitions for the
terms "spouse" and "surviving spouse."
Section 176.7 relating to Admission Requirements describes eligibility
requirements for the program. The adopted amendments now deletes the requirement
that applicants be citizens of the United States, increases the scope of eligibility
to include the following: a person defined as a veteran, the spouse or surviving
spouse of a veteran, or a parent, all of whose children died while serving
in the armed forces of the United States. The adopted amendment also restricts
eligibility to persons who satisfy the requirements of USDVA guidelines and
regulations relating to nursing home care, and authorizes the Board to establish
by resolution both procedures for processing applications for admission and
a priority system for admitting applicants.
The adopted amendments protect the best interests of the program by qualifying
it for all available funding from the USDVA, and establishing a priority system
for admitting applicants to State Veterans Homes. This is accomplished by
reconciling the program's eligibility requirements with those of the USDVA,
and allows the Board to adopt resolutions that implement application processing
procedures and priorities for admissions.
The public will further benefit from the expansion of the eligibility criteria
of the program. The Board is authorized to modify the definition of an eligible
Texas veteran. The adopted amendments extend the benefits of the program to
a parent, all of whose children died while serving in the armed forces of
the United States. The adopted amendments preserve the program's qualification
for funds from USDVA by admitting only those persons who satisfy USDVA guidelines
and regulations. Failure to reconcile the program's admission requirements
to those of USDVA would result in loss of funding equal to or greater than
sixty-five percent (65%) of the cost of construction, plus per diem reimbursements
by USDVA for costs of care of residents.
No comments were received regarding the proposed amendments.
The amendments to the sections are adopted under the Natural
Resources Code, Title 7, Chapter 164, §164.004, which provides authorization
for the Board to adopt rules concerning the operation of veterans homes.
Natural Resources Code, Title 7, Chapter 164, §164.002(a)(6) and §164.005(d)
and (e) are affected by this adopted action.
§176.1.Definitions.
The following words and terms when used in this chapter, shall have
the following meanings, unless the context clearly indicates otherwise:
(1)
Board--The Veterans Land Board of the State of Texas.
(2)
Bona fide resident--An individual living within the State
of Texas, with the intent to remain in Texas.
(3)
Chairman--The commissioner of the General Land Office who
is also chairman of the Veterans Land Board.
(4)
Covenants--The bond covenants undertaken by the Veterans
Land Board in association with the sale of bonds.
(5)
Fund--The State Veterans Home Fund, which is comprised
of the proceeds from the sale of bonds issued for the purpose of acquisition,
construction, operation and maintenance of a state veterans home or homes,
revenues derived from the operation of one or more state veterans homes, and
the proceeds from other sources which are used for the acquisition, construction,
operation and maintenance of a state veterans home or homes.
(6)
Operator--The entity under contract with the Board to manage
a State Veterans Home or Homes.
(7)
Spouse --Means a person of the opposite sex who is a wife
or husband.
(8)
Surviving spouse--A person of the opposite sex who was
the spouse of a veteran at the time of the veteran's death, and who lived
with the veteran continuously from the date of marriage to the date of the
veteran's death (except where there was a separation which was due to the
misconduct of, or procured by, the veteran without fault of the spouse) and
who has not remarried or (in cases not involving remarriage) has not since
the death of the veteran, and after September 19, 1962, lived with another
person and held himself or herself out openly to the public to be the spouse
of such other person.
(9)
State Veterans Home (SVH)--Retirement home, retirement
village, home for the aging, or other facility that furnishes shelter, food,
medical attention, nursing services, medical services, social activities,
or other personal services or attention to veterans.
(10)
TDHS--The Texas Department of Human Services.
(11)
USDVA--The United States Department of Veterans Affairs
or any successor thereto.
§176.7.Admissions Requirements.
(a)
The Board finds that it protects the best interests of
the State Veterans Home Program to qualify the program for all available funding
from the USDVA.
(1)
USDVA requires that the program only admit to a SVH those
applicants who satisfy all medical, financial, and military service requirements
set forth in USDVA regulations, as they are amended from time-to-time.
(2)
For purposes of this section, unless the context provides
otherwise, the term "veteran" means a person who meets all military service
requirements to receive benefits from the USDVA, as those requirements are
set forth in 39 U.S.C.A. §101, 38 U.S.C.A. §5303A, and the regulations
of the USDVA as amended from time-to-time.
(b)
To be eligible for admission to a SVH, an applicant must
satisfy one of the following:
(1)
be a veteran who:
(A)
is at least eighteen years of age;
(B)
is a bona fide resident of Texas at the time of application
for admission;
(C)
was a bona fide resident of Texas at the time of enlistment,
induction, commissioning, appointment or drafting, or who has resided in Texas
continuously for at least one year immediately before applying for admission;
(D)
satisfies the USDVA guidelines and regulations relating
to the need for nursing home care; and
(E)
is in one of the following categories:
(i)
veterans with service-connected disabilities;
(ii)
veterans who are former prisoners of war;
(iii)
veterans who were discharged or released from active
military service for a disability incurred or aggravated in the line of duty;
(iv)
veterans who receive disability compensation under 38
U.S.C.A. §1151;
(v)
veterans whose entitlement to disability compensation is
suspended because of the receipt of retired pay;
(vi)
veterans whose entitlement to disability compensation
is suspended pursuant to 38 U.S.C.A. §1151, but only to the extent that
such veterans' continuing eligibility for nursing home care is provided for
in the judgment or settlement described in 38 U.S.C. A. §1151;
(vii)
veterans who USDVA determines are unable to defray the
expenses of necessary care as specified under 38 U.S.C.A. §1722(a);
(viii)
veterans of the Mexican border period or of World War
I;
(ix)
veterans solely seeking care for a disorder associated
with exposure to a toxic substance or radiation or for a disorder associated
with service in the Southwest Asia theater of operations during the Persian
Gulf War, as provided in 38 U.S.C.A. §1710(e); or
(x)
veterans who agree to pay to the United States the applicable
co-payment determined under 38 U.S.C.A. §1710(f) and §1710(g).
(2)
is a spouse, or surviving spouse, of a veteran if the spouse
is at least eighteen (18) years of age and has been a bona fide resident of
Texas continuously for at least one (1) year immediately before applying for
admission; or
(3)
is a parent, all of whose children died while serving in
the armed forces of the United States, and who has resided in Texas continuously
for at least one year immediately before applying for admission.
(c)
The Board may establish, by resolution from time-to-time,
procedures for processing applications for admission to each SVH. Based on
the availability of space, the Board may also establish a priority system
for admitting applicants according to one or more factors, including, but
not limited to:
(1)
the priority of a veteran over the spouse or parent of
a veteran;
(2)
the necessity to comply with USDVA regulations governing
a SVH, including, but not limited to, the requirement that 75 percent (75%)
of a SVH's residents be veterans. However, if the facility was constructed
or renovated solely with State funds, only 50 percent (50%) of the residents
must be veterans;
(3)
whether an applicant meets the eligibility criteria in
40 TAC, Part 5, Chapter 175, §175.2 relating to Loan Eligibility Requirements,
and is thereby eligible for other Board benefits;
(4)
the date upon which the application for admission was made;
(5)
whether the applicant's spouse is also an applicant or
a current resident of a SVH;
(6)
a request to transfer a resident from one SVH to another
to be nearer to family members;
(7)
the level of medical treatment and care required by the
applicant;
(8)
the characteristics and extent of financial resources available
to the applicant;
(9)
whether the applicant would otherwise meet institutional
Medicaid eligibility criteria, as determined by the TDHS, but state Medicaid
payments will not be used as part of the applicant's payment for care and
residence costs; and
(10)
such other criteria as the Board may determine are in
the best interest of the program.
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 23, 2001.
TRD-200101754
Larry R. Soward
Chief Clerk, General Land Office
Texas Veterans Land Board
Effective date: April 12, 2001
Proposal publication date: November 17, 2000
For further information, please call: (512) 305-9129
40 TAC §177.5
The Veterans Land Board of the State of Texas (the "Board")
adopted the proposed amendments to Title 40, Part 5, Chapter 177, §177.5
of the Texas Administrative Code relating to Loan Eligibility Requirements
concerning the eligibility of persons to participate in the Veterans Housing
Assistance Program (the "program"). The amendments are adopted without changes
to the text as published in the December 8, 2000, edition of the
Texas Register
(25 TexReg 12170). The text of the rule will not be
republished.
The section now refers to Title 40, Part 5, Chapter 175, §175.2 of
the Texas Administrative Code (relating to Loan Eligibility Requirements)
for a description of persons eligible to participate in this program. (Amendments
to §175.2 relating to Loan Eligibility Requirements are being proposed
simultaneously in a separate submission.)
Section 177.5 (relating to Loan Eligibility Requirements) describes eligibility
requirements for the Veterans Housing Assistance Program and has deleted the
description of eligibility for the program and refers to the description contained
in Chapter 175, §175.2 (relating to Loan Eligibility Requirements). The
descriptions of procedures for evidencing eligibility and authorizes the Board
to adopt resolutions from time to time that provide for such procedures have
also been deleted. Any required program-specific eligibility requirements
have been retained in the adopted section. The adopted amendments effectuate
the intent of the Board to establish a single standard for eligibility in
all loan programs it administers and protects the best interests of this program
by making the eligibility language easier to understand and providing that
any future changes in the eligibility requirements made in the General Rules
of the Board will automatically apply to this program.
No comments were received concerning the proposed amendments.
The amendments to the sections are adopted under the Natural
Resources Code, Title 7, Chapter 161, §161.063 (relating to Rules), which
provides authorization for the Board to adopt rules concerning the operation
of the program, and under Chapter 161, §161.001(b) (relating to Definitions),
which authorizes the Board to change the definition of "veteran."
Natural Resources Code 161.001(a)(7) (relating to Definitions) is affected
by this adopted action.
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 23, 2001.
TRD-200101753
Larry R. Soward
Chief Clerk, General Land Office
Texas Veterans Land Board
Effective date: April 12, 2001
Proposal publication date: December 8, 2000
For further information, please call: (512) 305-9129
Chapter 700.
CHILD PROTECTIVE SERVICES
The Texas Department of Protective and Regulatory Services (TDPRS)
adopts amendments to §700.1321 and §700.2501, without changes to
the proposed text published in the February 9, 2001, issue of the
Texas Register
(26 TexReg 1248).
The justification for the amendments is to allow TDPRS to engage in open
enrollment for residential contracts at Levels-of-Care 4, 5, and 6 with certain
for-profit entities that are licensed by other state agencies.
The amendments will function by having a greater number of placement resources
available to children in the conservatorship of TDPRS. It is anticipated that
these newly available placements will be able to meet the specialized needs
of children with high levels of care.
No comments were received regarding adoption of the amendments.
Subchapter M. SUBSTITUTE-CARE SERVICES
40 TAC §700.1321
The amendment is adopted under the Human Resources Code (HRC), §40.029,
which provides the Department with the authority to propose and adopt rules
to implement departmental programs.
The amendment implements Title IV-E of the Social Security Act, and 45
Code of Federal Regulations, §1355.20.
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 23, 2001.
TRD-200101729
C. Ed Davis
Deputy Director, Legal Services
Texas Department of Protective and Regulatory Services
Effective date: April 12, 2001
Proposal publication date: February 9, 2001
For further information, please call: (512) 438-3437
40 TAC §700.2501
The amendment is adopted under the Human Resources Code (HRC), §40.029,
which provides the Department with the authority to propose and adopt rules
to implement departmental programs.
The amendment implements Title IV-E of the Social Security Act, and 45
Code of Federal Regulations, §1355.20.
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 23, 2001.
TRD-200101730
C. Ed Davis
Deputy Director, Legal Services
Texas Department of Protective and Regulatory Services
Effective date: April 12, 2001
Proposal publication date: February 9, 2001
For further information, please call: (512) 438-3437
40 TAC §§700.1601 - 700.1604
The Texas Department of Protective and Regulatory Services
(TDPRS) adopts the repeal of §§700.1601-700.1604, and adopts new §§700.1601-700.1604,
in its Child Protective Services chapter. New §700.1603 and §700.1604
are adopted with changes to the proposed text published in the February 9,
2001, issue of the
Texas Register
(26 TexReg
1249). The repeal of §§700.1601-700.1604, and new §700.1601
and §700.1602 are adopted without changes to the proposed text and will
not be republished.
The justification for the repeals and new sections is to authorize the
Preparation for Adult Living (PAL) Program to establish in policy the types
and amounts of assistance to be provided and any conditions or criteria that
must be met to receive benefits, and give program the flexibility to establish
and adjust the details of benefits and services to meet the needs of the youth
it is intended to serve. Provision of services and benefits is subject to
available funding. The new sections require compliance with the federal Chafee
Foster Care Independence Act, and define the broader target population required
by the federal law. The new rules are written using plain language so they
are easier to understand.
The repeals and new sections will function by providing program more flexibility
to establish and adjust services and benefits to youth that will best meet
the purpose and objective of the program. The program will be more responsive
to changing needs. The anticipated results will be better outcomes for youth
in adult living.
During the public comment period, TDPRS received comments from the Texas
Association of Leaders in Children and Family Services. A summary of the comments
and TDPRS's responses follow:
Comment concerning §700.1603: The commenter suggested that the rule
include a provision for case management services while PAL participants receive
monetary assistance.
Response: In the first sentence of subsection (c), TDPRS made a minor modification
and added the phrase "and related services" after "monetary assistance." With
this change, the rule will specifically reference and authorize the provision
of support services related to the receipt of monetary assistance.
Comment concerning §700.1604: The commenter expressed concern that
the rule was too restrictive by preventing PAL participants from receiving
financial assistance while living with biological or adoptive parents, stepparents,
or an alleged perpetrator. Since many youth go back to their biological family
after leaving foster care, the commenter suggested that financial assistance,
together with case management services to monitor its use, be provided to
these youth.
Response: Staff evaluated this comment and TDPRS is adopting this section,
with a modification. Subsection (a)(4) will now read: "not be living with
a designated perpetrator while receiving financial benefits." Staff will take
these comments into consideration during the revision and development of policy
on this topic. The living arrangement of a youth with "biological parents,
adoptive parents, or stepparents" may be an eligibility criterion as determined
by fiscal responsibility and financial needs of the youth.
The repeals are adopted under the Human Resources Code, §40.029,
which provides the Department with the authority to propose and adopt rules
in compliance with state law and to implement departmental programs.
The repeals implement changes made to Title IV-E of §477 of the Social
Security Act (42 U.S.C. 677) by the Chafee Foster Care Independence Act.
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 23, 2001.
TRD-200101727
C. Ed Davis
Deputy Director, Legal Services
Texas Department of Protective and Regulatory Services
Effective date: April 16, 2001
Proposal publication date: February 9, 2001
For further information, please call: (512) 438-3437
The new sections are adopted under the
Human Resources Code, §40.029, which provides the Department with the
authority to propose and adopt rules in compliance with state law and to implement
departmental programs.
The new sections implement changes made to Title IV-E of §477 of the
Social Security Act (42 U.S.C. 677) by the Chafee Foster Care Independence
Act.
§700.1601.What is the Preparation for Adult Living (PAL) Program?
The Preparation for Adult Living (PAL) Program provides services and
benefits to help prepare young people to live independently when they leave
foster care. PAL Program funds can be used to provide any of the services
and benefits authorized by the federal Chafee Foster Care Independence Program,
the requirements of which must be met. Funding for the PAL Program is limited
to the state, local, and federal funds allocated to PRS for this program.
§700.1602.Whom is the PAL Program designed to serve?
(a)
The PAL Program is designed to serve the following young
people:
(1)
those who are at least 16 years old and likely to remain
in foster care until at least age 18; and
(2)
those who are younger than 21 years old and who left foster
care when they were at least age 18.
(b)
With funding availability, appropriate services may also
be extended to individuals as young as 14 years old who are likely to remain
in foster care until at least age 18.
§700.1603.What types of services and benefits are available to PAL Program participants?
(a)
The program provides an individual assessment of the participant's
general readiness to live independently as an adult.
(b)
The program provides training to help young people prepare
for independent living once they leave foster care and addresses topics such
as the following:
(1)
personal and interpersonal skills;
(2)
employment and job skills;
(3)
money management;
(4)
housing and transportation;
(5)
personal health; and
(6)
planning for the future.
(c)
The program may provide monetary assistance and related
services to eligible young people for transitional expenses and independent
living needs. The types and amounts of assistance must be established in policy
and are subject to the availability of funds. Monetary assistance may include:
(1)
a transitional living allowance;
(2)
a household supplies stipend; and
(3)
assistance with room and board for young people who have
left foster care because of age.
§700.1604.Are there specific requirements for young people to meet before receiving PAL Program benefits?
(a)
The PAL Program may establish in policy specific conditions
or criteria that young people must meet to receive program benefits, provided
such requirements are designed to help achieve the purposes and objectives
of the program. Specific conditions or criteria may include, but are not limited
to, requirements that the young person:
(1)
attend training (if able);
(2)
be employed or actively seeking employment (if able), or
attending school or vocational or technical training;
(3)
meet need-based criteria for monetary assistance;
(4)
not be living with a designated perpetrator while receiving
financial benefits; and
(5)
not be incarcerated.
(b)
Any young persons whom the PAL Program is designed to serve,
as described in §700.1602 of this title (relating to Whom is the PAL
Program designed to serve?), must be informed of any requirements that they
must meet to receive benefits.
(c)
No benefits are available to any young persons after their
21st birthday.
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 23, 2001.
TRD-200101728
C. Ed Davis
Deputy Director, Legal Services
Texas Department of Protective and Regulatory Services
Effective date: April 16, 2001
Proposal publication date: February 9, 2001
For further information, please call: (512) 438-3437
The Texas Department of Protective and Regulatory Services (TDPRS)
adopts the repeal of Chapter 710, consisting of §§710.1-710.15 and
710.41-710.55, without changes to the proposed text published in the February
9, 2001, issue of the
Texas Register
(26 TexReg
1250).
As part of the rule review process, TDPRS is repealing Chapter 710, and
adopting new Chapter 711, Investigations in TDMHMR Facilities and Related
Programs. The new chapter adds information about home and community-based
services investigations, and is written using plain language to make it easier
to understand. New Chapter 711 is included in this issue of the
Texas Register
.
The repeals will function by allowing new sections to be adopted that are
better organized and easier to understand.
No comments were received regarding adoption of the repeals.
Subchapter A. ABUSE, NEGLECT, AND EXPLOITATION OF PERSONS SERVED BY TDMHMR FACILITIES AND STATE-OPERATED COMMUNITY SERVICES
40 TAC §§710.1 - 710.15
The repeals are adopted under the Human Resources Code (HRC),
Title 2, §48.255 and §48.355, which provides the department with
the right to investigate reports of abuse, exploitation, or neglect of an
elderly or disabled person; and the Texas Family Code, §261.404, which
requires the department to develop joint rules with the Texas Department of
Mental Health and Mental Retardation (TDMHMR) to facilitate investigations
in TDMHMR facilities and related programs.
The repeals implement the Human Resources Code, §48.255 and §48.355,
and the Texas Family Code, §261.404.
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 23, 2001.
TRD-200101717
C. Ed Davis
Deputy Director, Legal Services
Texas Department of Protective and Regulatory Services
Effective date: May 1, 2001
Proposal publication date: February 9, 2001
For further information, please call: (512) 438-3437
40 TAC §§710.41 - 710.55
The repeals are adopted under the Human Resources Code (HRC),
Title 2, §48.255 and §48.355, which provides the department with
the right to investigate reports of abuse, exploitation, or neglect of an
elderly or disabled person; and the Texas Family Code, §261.404, which
requires the department to develop joint rules with the Texas Department of
Mental Health and Mental Retardation (TDMHMR) to facilitate investigations
in TDMHMR facilities and related programs.
The repeals implement the Human Resources Code, §48.255 and §48.355,
and the Texas Family Code, §261.404.
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 23, 2001.
TRD-200101718
C. Ed Davis
Deputy Director, Legal Services
Texas Department of Protective and Regulatory Services
Effective date: May 1, 2001
Proposal publication date: February 9, 2001
For further information, please call: (512) 438-3437
The Texas Department of Protective and Regulatory Services (TDPRS)
adopts new Chapter 711, Investigations in TDMHMR Facilities and Related Programs.
New §711.3 and §711.613 are adopted with changes to the proposed
text published in the February 9, 2001, issue of the
Texas Register
(26 TexReg 1252). New §§711.1, 711.5, 711.7,
711.9, 711.11, 711.13, 711.15, 711.17, 711.19, 711.21, 711.23, 711.201, 711.401,
711.403, 711.405, 711.407, 711.409, 711.411, 711.413, 711.415, 711.417, 711.419,
711.421, 711.423, 711.425, 711.601, 711.603, 711.605, 711.607, 711.609, 711.611,
711.801, 711.1001, 711.1003, 711.1005, 711.1007, 711.1009, 711.1011, 711.1013,
711.1201, 711.1203, 711.1205, 711.1207, and 711.1209 are adopted without changes
to the proposed text and will not be republished.
The justification for the new chapter is to add information about home
and community-based services investigations, and rewrite the sections using
plain language so they are easier to understand.
The new chapter will function by providing sections that are better organized
and easier to understand.
During the comment period, TDPRS received comments from Denton State School,
Life Management Center, Kerrville State Hospital, Terrell State Hospital,
Texas Council of Community MHMR Centers, and two individuals. A summary of
the comments and TDPRS's responses follow:
Comments concerning § 711.3, How are the terms in this chapter defined?
1) One commenter suggested changing the definition of "allegation" to read,
"A report by an individual that a person served is suspected to be in a state
of abuse, neglect, or exploitation as defined by this subchapter.
Response: Staff believe the definition as published is sufficiently clear.
PRS is adopting this definition without change.
2) One commenter questioned the legality of the definition of "child."
Response: The definition as proposed is legally correct and is consistent
with the definition of "adult" in this subchapter and in HRC, Chapter 48.
PRS is adopting this definition without change.
3) One commenter stated that the definition of an "individual with a disability
receiving services" is too broad and does not specify what disabilities it
applies to.
Response: This definition is included in the rules in response to legislative
mandate. During the 76th Legislature, Human Resources Code, (HRC) §48
was amended to require the department by rule to define who is "an individual
with a disability receiving services." The definition in the rules clarifies
who such individuals are within the context of these rules. PRS is adopting
this definition without change.
4) One commenter questioned whether certain other professionals should
be added to the definition of "mental health services provider."
Response: The definition is consistent with the definition found in the
Texas Civil Practice and Remedies Code, §81.001. PRS is adopting this
definition without change.
5) One commenter suggested changing the definition of "perpetrator" to
read, "A person who is suspected to have committed an act of abuse, neglect,
or exploitation."
Response: Staff believe the definition is clear. Throughout the rules,
the term "alleged" perpetrator is used, as appropriate, to indicate a person
who is suspected to have committed an act of abuse, neglect, or exploitation.
PRS is adopting this definition without change.
6) One commenter noted that the definition of "person served" is too restrictive.
By relying on entry into the Client Assignment and Registration (CARE) system,
certain individuals who receive services from community centers and local
authorities would be excluded from protection by APS. The definition also
excludes children.
Response: TDPRS agrees. The definition has been amended to include all
individuals served by a community center or local authority for whom the department
is mandated to provide investigatory services if abused, neglected, or exploited.
Language has also been added to include children.
7) One commenter noted that the definition of "person served" is written
too broadly and should more explicitly describe what is considered a disability.
Response: The definition, as amended, clarifies who such individuals are
within the context of these rules. This definition is linked to the definition
of an "Individual with a disability receiving services."
8) Two commenters questioned the definition of "serious physical injury"
feeling that the phrase, "any injury determined to be serious by the appropriate
medical personnel" leaves too much latitude as to who may make the determination.
Response: The definition is intended to acknowledge that a physician may
not always be immediately available to make this determination, depending
on the type of program involved. A physician may be available in a facility,
but not in a community center or home and community based (HCS) setting. PRS
is adopting this definition without change.
Comment concerning §711.7, What does APS not investigate under this
chapter? One commenter recommended that psychologists and social workers be
added to the list of professionals that APS does not investigate if the allegation
involves clinical practice.
Response: TDMHMR's current rules do not provide for peer review for its
social workers and psychologists. The rules of both agencies should be consistent
and not conflict. PRS is adopting this section without change.
Comments concerning §711.9, How does APS determine if it has jurisdiction
to investigate in certain situations?
1) Two commenters questioned the accuracy of the table related to APS not
investigating an allegation if the person served is also an employee of the
program and the alleged perpetrator is not assigned to the care and treatment
of the person served.
Response: This section accurately describes the position of APS for such
allegations. This is a situation where an employee of a program, who was hired
through a competitive procurement process, also happens to be receiving services
from the program. If the alleged perpetrator is assigned to the care and treatment
of the person served, APS would investigate; if the alleged perpetrator is
not assigned to the care and treatment of the person served, the matter would
be referred to the administrator of the program. PRS is adopting this section
without change.
2) One commenter stated the meaning of the phrase, "as part of treatment
plan or supported employment," is unclear in context with the rest of the
phrases it is connected with.
Response: The phrase, "If the alleged victim is a person served as part
of treatment plan or supported employment," is intended to describe a situation
where a person served, as a result of the treatment planning process, works
for the program or in a supported employment situation. This is in contrast
to "a person served and an employee of the program" where the person served
was selected for employment in the program through a competitive employment
process. PRS is adopting this section without change.
Comment concerning §711.11, How is physical abuse defined? One commenter
suggested that §711.11(3) regarding chemical or bodily restraints on
a person served not in compliance with federal and state laws be amended to
state "excluding documentation provisions of these laws." The commenter stated
that employees are being confirmed for abuse not having a doctor's order in
place.
Response: Federal and state laws require that a doctor's order be obtained
prior to chemical or bodily restraint for the protection of the person served.
If a person served is restrained without a doctor's order, this would constitute
abuse. In certain emergency situations a doctor's order can be obtained after
the restraint and this would not be considered abuse. PRS is adopting this
section without change.
Comment concerning §711.13, How is sexual abuse defined? One commenter
suggested that §711.13 (1), (2), and (3) be eliminated and (4) changed
to eliminate "with sexual intent." The commenter states that intent is within
someone's mind and difficult to ascertain.
Response: While intent may be in someone's mind, it is the behavioral manifestation
of that intent that is at issue here. There are differences between a supportive,
therapeutic hug and one that involves sexual intent on the part of the employee,
agent, or contractor. Intent is evaluated during the investigative process.
PRS is adopting this section without change.
Comment concerning §711.15, How is sexual exploitation defined? One
commenter recommended changing the definition of "sexual exploitation" to
include the wording "for the purpose of one's personal benefit or gain."
Response: This section defines sexual exploitation in accordance with the
Texas Civil Practice and Remedies Code, §81.001, and is linked to the
definition of "mental health services provider." PRS is adopting this section
without change.
Comment concerning §711.19, How is neglect defined? One commenter
suggested that §711.19 (1) is too broad and should be reworded. The commenter
stated that interdisciplinary teams may not always predict everything perfectly
and so may not establish a program or may establish a program that other staff
may not be able to carry out.
Response: Section 711.7(2)(D) (relating to What does APS not investigate
under this chapter?), states that APS does not investigate an allegation if
it relates solely to a general complaint, such as failure to carry out a person
served's program or treatment plan, if the allegation does not relate to a
specific incident involving a specific person served. PRS is adopting this
section without change.
Comment concerning §711.201, What is your duty to report if you are
an employee, agent, or contractor of a facility, local authority, community
center, or HCSW? One commenter suggested adding a requirement that the person
making a report of abuse, neglect, or exploitation be required to make provision
for the safety and welfare of the alleged victim.
Response: This section describes the requirement for employees, agents,
or contractors of a facility, local authority, community center, or home and
community-based services wavier program (HCSW) to report suspected abuse,
neglect or exploitation to PRS. Instructions to provide for the safety and
welfare of the alleged victim would more appropriately be found in TDMHMR
rules. PRS is adopting this section without change.
Comment concerning §711.401, Who does the investigator notify of an
allegation and when is the identity of the reporter revealed? One commenter
questioned why the investigator would not notify law enforcement of an allegation
of sexual exploitation.
Response: The section states that the investigator is to notify law enforcement
of allegations involving sexual abuse (which is defined to include sexual
exploitation in §711.13) of an adult and all allegations involving a
child. PRS is adopting this section without change.
Comment concerning §711.403, Who and when does the investigator notify
upon receiving an allegation that relates to a general complaint? One commenter
questioned why the Office of Consumer Services and Rights Protection - Ombudsman
Office (CSRP) at TDMHMR is only notified of allegations involving a general
complaint relating to an HCSW.
Response: HCSWs, unlike TDMHMR facilities, local authorities, and community
centers, do not have a designated client rights protection officer to address
general complaints. As a result, the investigator notifies CSRP so that office
may intervene, if appropriate. PRS is adopting this section without change.
Comment concerning §711.405, What action does the investigator take
if the alleged perpetrator is a physician, dentist, registered nurse, licensed
vocational nurse, or pharmacist for a facility? One commenter questioned why,
for community centers, other professional groups are not included in the peer
review process.
Response: This section applies to facilities and not to community centers.
Professional review for other professional groups in community centers is
addressed in §711.411. This section clarifies that such allegations are
referred to the administrator for professional review and that APS also conducts
an investigation. PRS is adopting this section without change.
Comments concerning § 711.407, What action does the investigator take
if the alleged perpetrator is a licensed professional other than a physician,
dentist, registered nurse, licensed vocational nurse, or pharmacist for a
facility? Two commenters noted there is no provision for an issue of clinical
practice to be referred to peer review if it involves a professional other
than a physician, dentist, nurse, or pharmacist.
Response: Within the TDMHMR system, peer review is only available for physicians,
dentists, nurses and pharmacists. An allegation involving a member of another
professional group is therefore investigated by APS. PRS is adopting this
section without change.
Comments concerning § 711.413, How are investigations prioritized?
Two commenters questioned why the severity of the alleged incident is not
a factor in determining the priority of the investigation.
Response: The priority system in the rule is consistent with current practice
and has been in effect for three and one-half years. The system, as agreed
upon by PRS, TDMHMR, and Advocacy, Incorporated, is built upon the length
of time between the actual incident and the date of the report to PRS. Allegations
reported soon after they occur are more likely to yield evidence useful to
the investigation than allegations reported a long time after they occur,
and therefore, warrant a quicker response. PRS is adopting this section without
change.
Comment concerning §711.417, When must the investigator complete the
investigation? One commenter suggested that this section be amended to include
the requirement for a five- day preliminary report necessary to meet federal
regulations for investigations in ICFMRs.
Response: The federal requirement referred to is incumbent on ICFMR facilities,
not on PRS. PRS has policy in place to require the five-day preliminary report.
PRS is adopting this section without change.
Comment concerning §711.419, What if the investigator cannot complete
the investigation on time? One commenter stated that a facility should be
notified when an extension is granted.
Response: Section 711.419(c) states that the investigator must notify the
administrator of all extensions. PRS is adopting this section without change.
Comment concerning §711.425, How are allegations classified? One commenter
suggested eliminating the phrase "may have" in relation to the seriousness
of the injury. A suggested rephrasing would be: Class I abuse - "physical
abuse that caused a serious injury or was noted by a physician as likely to
have caused a serious injury." Class II abuse - "physical abuse that caused
a non-serious injury or was noted by a physician as likely to have caused
a non-serious injury."
Response: These proposed classifications are consistent with those found
in MHMR companion rules. The classification system is used to guide administrators
determine the appropriate form of disciplinary action to take against a confirmed
perpetrator. Should TDMHMR determine it is appropriate to change the classification
system, PRS would consider a corresponding change. PRS is adopting this section
without change.
Comment concerning §711.611, Is the victim or alleged victim, guardian,
or parent notified of the finding? One commenter stated that the victim or
alleged victim could be traumatized by receiving notification of the finding.
The commenter suggested amending the rule to read, "Yes. The victim or alleged
victim, guardian, or parent (if the victim or alleged victim is a child) is
notified, if appropriate . . ."
Response: This section clarifies that TDMHMR and its related programs are
responsible for such notifications. PRS is adopting this section without change.
Comments concerning §711.613, Can the investigative report be released?
1) One commenter noted that contractors of facilities, local authorities,
community centers, and HCSWs should be included among those who may release
the investigative report to the victim or alleged victim, guardian, or parent
(if the victim or alleged victim is a child).
Response: PRS agrees. The section has been amended to include contractors.
2) One commenter noted that contrary to current practice, administrators
of community centers and local authorities, and contractor CEOs, are not authorized
to release the investigative report to the perpetrator or alleged perpetrator.
The commenter recommended that such language be added.
Response: TDPRS agrees. The section has been amended to authorize the administrator
of a community center or local authority, and a contractor CEO, to release
the investigative report to the perpetrator or alleged perpetrator.
Comment concerning §711.801, What action does the investigator take
if a person served by an HCSW needs emergency services? One commenter stated
that this section implies that consideration of HCSW issues are more important
than the consideration of the condition, welfare or threat to the person served.
The commenter suggested deleting items (1) - (4) and replacing them with items
concerning the person served.
Comment concerning §711.1007, How is the review of a finding conducted?
One commenter recommended that language be added require to reviewer to notify
the facility if the review process is going to exceed 14 days.
Response: It is current practice to notify the facility when it takes longer
than 14 days to complete a review. PRS is adopting this section without change.
Response: TDMHMR contracts with HCSW providers to provide care to HSCW
clients. In some parts of the state, the nearest APS office may be many miles
away from an HCSW site. The proposed rule is written to allow for flexibility;
in some instances it may be appropriate and more efficient for the HCSW provider
to address an emergency situation, while in others it may be more appropriate
for APS to do so. Items (1) - (4) are issues the investigator is to consider
when deciding on the best course of action to protect the person served. PRS
is adopting this section without change.
Comments concerning § 711.1201, Who may request an appeal?
1) Two commenters noted that the alleged perpetrator is not afforded the
opportunity to request an appeal. As a result, a confirmation will remain
on CAPS and be subject to disclosure to other state agencies even if the confirmation
is overturned by the TDMHMR grievance process. The commenter recommends that
the alleged perpetrator be given the right to appeal the decision of the investigator.
Response: Investigation findings are not routinely disclosed to other state
agencies other than TDMHMR. If findings are disclosed to another agency or
entity, the perpetrator is offered a release hearing.
2) One commenter stated that Advocacy, Incorporated should only be involved
if the victim or alleged victim does not have a guardian or the guardian has
asked for their help.
Response: Advocacy, Incorporated is mentioned here to cover two situations.
One is where Advocacy actually represents the victim or alleged victim through
mutual agreement or with the consent of the legal guardian, if appropriate.
The other is when the victim or alleged victim does not have a legal guardian
and lacks the capacity to make decisions in his or her own best interest due
to a physical or mental condition. PRS is adopting this section without change.
Subchapter A. INTRODUCTION
40 TAC §§711.1, 711.3, 711.5, 711.7, 711.9, 711.11, 711.13, 711.15, 711.17, 711.19, 711.21, 711.23
The new sections are adopted under the Human Resources Code
(HRC), Title 2, §48.255 and §48.355, which provides the department
with the right to investigate reports of abuse, exploitation, or neglect of
an elderly or disabled person; and the Texas Family Code, §261.404, which
requires the department to develop joint rules with the Texas Department of
Mental Health and Mental Retardation (TDMHMR) to facilitate investigations
in TDMHMR facilities and related programs.
The new sections implement the Human Resources Code, §48.255 and §48.355,
and the Texas Family Code, §261.404.
§711.3.How are the terms in this chapter defined?
The following words and terms, when used in this chapter, have the
following meanings, unless the context clearly indicates otherwise:
(1)
Administrator--The person in charge of a facility, local
authority, community center, or home and community-based services waiver program,
or designee.
(2)
Adult--An adult is a person:
(A)
18 years of age or older; or
(B)
under 18 years of age who:
(i)
is or has been married; or
(ii)
has had the disabilities of minority removed pursuant
to the Texas Family Code, Chapter 31.
(3)
APS--Adult Protective Services, a division of PRS.
(4)
Agent--An individual (e.g., student, volunteer), not employed
by but working under the auspices of a:
(A)
facility, local authority, community center, or home and
community-based services waiver program; or
(B)
contractor of one of the programs listed in subparagraph
(A) of this paragraph.
(5)
Allegation--A report by an individual that a person served
has been or is in a state of abuse, neglect, or exploitation as defined by
this subchapter.
(6)
Child--A person under 18 years of age who:
(A)
is not and has not been married; or
(B)
has not had the disabilities of minority removed pursuant
to the Texas Family Code, Chapter 31.
(7)
Clinical practice--Relates to the demonstration of professional
competence in nursing, dental, pharmacy, or medical practice as described
in the Nursing Practice Act, Vocational Nurse Act, Dental Practice Act, Pharmacy
Practice Act, or Medical Practice Act.
(8)
Community center--A community mental health center, community
mental retardation center, or community mental health and mental retardation
center, established under the Texas Health and Safety Code, Title 7, Chapter
534, Subchapter A.
(9)
Contractor--Any organization, entity, or individual who
contracts with a facility, local authority, community center, or HCSW to provide
mental health and/or mental retardation services directly to a person served.
The term includes a local independent school district with which a facility,
local authority, or community center has a memorandum of understanding (MOU)
for educational services.
(10)
Contractor CEO--The person in charge of a contractor that
has one or more employees, excluding the CEO.
(11)
CSRP or Consumer Services and Rights Protection--Ombudsman
Office--The office at TDMHMR's Central Office charged with protecting the
rights of persons served.
(12)
Emergency order for protective services--A court order
for protective services obtained under Human Resources Code, §48.208.
(13)
Emergency services--Services necessary to immediately
protect a person served by an HCSW from serious physical harm or death. Examples
include, but are not limited to, arranging for:
(A)
an emergency order for protective services;
(B)
shelter;
(C)
medical and psychiatric assessments and/or treatment; and
(D)
food, medication, or other supplies.
(14)
Facility--A state hospital, state school, or state center
that is operated by TDMHMR.
(15)
Home and community-based services waiver program (HCSW)--Community-based
Medicaid waiver programs authorized under the Social Security Act, §1915(c),
operated by TDMHMR under the authority of the Texas Health and Human Services
Commission, which are the:
(A)
Home and Community-based Services Program (HCS), governed
by 25 TAC Chapter 419, Subchapter D (relating to Home and Community-based
Services (HCS) Program);
(B)
Mental Retardation Local Authority Program (MRLA), governed
by 25 TAC Chapter 409, Subchapter L (relating to Mental Retardation Local
Authority (MRLA) Pilot Program); and
(C)
Home and Community-based Services-OBRA (HCS-O) Program,
governed by 25 TAC Chapter 419, Subchapter P (relating to Home and Community-based
Services - OBRA (HCS- O) Program).
(16)
Incitement--To spur to action or instigate into activity;
implies responsibility for initiating another's actions.
(17)
Individual with a disability receiving services--A disabled
person as defined in the Human Resources Code, Chapter 48, receiving services
from a:
(A)
facility, local authority, community center, HCSW; or
(B)
contractor or agent of one of the programs listed in subparagraph
(A) of this paragraph.
(18)
Investigator--An employee of the division of Adult Protective
Services who has:
(A)
demonstrated competence and expertise in conducting investigations;
and
(B)
received training on techniques for communicating effectively
with individuals with a disability.
(19)
Local authority--An entity designated by the TDMHMR commissioner
in accordance with the Texas Health and Safety Code, §533.035(a).
(20)
Mental health services provider--In accordance with the
Texas Civil Practice and Remedies Code, §81.001, an individual, licensed
or unlicensed, who performs or purports to perform mental health services,
including a:
(A)
licensed social worker as defined by the Human Resources
Code, §50.001;
(B)
chemical dependency counselor as defined by Texas Civil
Statutes, Article 4512o;
(C)
licensed professional counselor as defined in §2 of
the Licensed Professional Counselor Act, (Texas Civil Statutes, Article 4512g);
(D)
licensed marriage and family therapist as defined in §2,
Licensed Marriage and Family Therapist Act, (Texas Civil Statutes, Article
4512c-1);
(E)
member of the clergy;
(F)
physician who is practicing medicine as defined in §1.03
of the Medical Practice Act, (Texas Civil Statutes, Article 4495b);
(G)
psychologist offering psychological services as defined
in §2 of the Psychologists' Certification and Licensing Act, (Texas Civil
Statutes, Article 4512c); or
(H)
special officer for mental health assignment certified
under the Government Code, §415.037.
(21)
Non-serious physical injury--Any injury determined not
to be serious by the appropriate medical personnel. Examples of non-serious
physical injury include the following:
(A)
superficial laceration;
(B)
contusion two and one-half inches in diameter or smaller;
or
(C)
abrasion.
(22)
Peer review--A review of clinical and/or:
(A)
medical practice(s) by peer physicians;
(B)
dental practice(s) by peer dentists;
(C)
pharmacy practice(s) by peer pharmacists; or
(D)
nursing practice(s) by peer nurses.
(23)
Perpetrator--A person who has committed an act of abuse,
neglect, or exploitation.
(24)
Person served--An individual with a disability receiving
services, or a child receiving services in a:
(A)
facility or HCSW who is registered or assigned in the Client
Assignment and Registration (CARE) system; or
(B)
community center or local authority who is registered or
assigned in CARE or who is otherwise receiving services from a community center
or local authority, either directly or by contract.
(25)
Preponderance of evidence--The greater weight of evidence,
or evidence which is more credible and convincing to the mind.
(26)
Prevention and management of aggressive behavior (PMAB)--TDMHMR's
proprietary risk management program that uses the least intrusive, most effective
options to reduce the risk of injury for persons served and staff from acts
or potential acts of aggression.
(27)
Professional review--A review of clinical and/or professional
practice(s) by peer professionals.
(28)
Program--A facility, local authority, community center,
or HCSW.
(29)
PRS--Texas Department of Protective and Regulatory Services.
(30)
Reporter--The person, who may be anonymous, making an
allegation.
(31)
Serious physical injury--Any injury determined to be serious
by the appropriate medical personnel. Examples of serious physical injury
include the following:
(A)
fracture;
(B)
dislocation of any joint;
(C)
internal injury;
(D)
contusion larger than two and one-half inches in diameter;
(E)
concussion;
(F)
second or third degree burn; or
(G)
any laceration requiring sutures.
(32)
Sexually transmitted disease--Any infection with or without
symptoms or clinical manifestations that can be transmitted from one person
to another by sexual contact.
(33)
TDMHMR--Texas Department of Mental Health and Mental Retardation.
(34)
Victim--A person served who is alleged to have been abused,
neglected, or exploited.
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 23, 2001.
TRD-200101719
C. Ed Davis
Deputy Director, Legal Services
Texas Department of Protective and Regulatory Services
Effective date: May 1, 2001
Proposal publication date: February 9, 2001
For further information, please call: (512) 438-3437
40 TAC §711.201
The new section is adopted under the Human Resources Code
(HRC), Title 2, §48.255 and §48.355, which provides the department
with the right to investigate reports of abuse, exploitation, or neglect of
an elderly or disabled person; and the Texas Family Code, §261.404, which
requires the department to develop joint rules with the Texas Department of
Mental Health and Mental Retardation (TDMHMR) to facilitate investigations
in TDMHMR facilities and related programs.
The new section implements the Human Resources Code, §48.255 and §48.355,
and the Texas Family Code, §261.404.
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 23, 2001.
TRD-200101720
C. Ed Davis
Deputy Director, Legal Services
Texas Department of Protective and Regulatory Services
Effective date: May 1, 2001
Proposal publication date: February 9, 2001
For further information, please call: (512) 438-3437
40 TAC §§711.401, 711.403, 711.405, 711.407, 711.409, 711.411, 711.413, 711.415, 711.417, 711.419, 711.421, 711.423, 711.425
The new sections are adopted under the Human Resources Code
(HRC), Title 2, §48.255 and §48.355, which provides the department
with the right to investigate reports of abuse, exploitation, or neglect of
an elderly or disabled person; and the Texas Family Code, §261.404, which
requires the department to develop joint rules with the Texas Department of
Mental Health and Mental Retardation (TDMHMR) to facilitate investigations
in TDMHMR facilities and related programs.
The new sections implement the Human Resources Code, §48.255 and §48.355,
and the Texas Family Code, §261.404.
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 23, 2001.
TRD-200101721
C. Ed Davis
Deputy Director, Legal Services
Texas Department of Protective and Regulatory Services
Effective date: May 1, 2001
Proposal publication date: February 9, 2001
For further information, please call: (512) 438-3437
40 TAC §§711.601, 711.603, 711.605, 711.607, 711.609, 711.611, 711.613
The new sections are adopted under the Human Resources Code
(HRC), Title 2, §48.255 and §48.355, which provides the department
with the right to investigate reports of abuse, exploitation, or neglect of
an elderly or disabled person; and the Texas Family Code, §261.404, which
requires the department to develop joint rules with the Texas Department of
Mental Health and Mental Retardation (TDMHMR) to facilitate investigations
in TDMHMR facilities and related programs.
The new sections implement the Human Resources Code, §48.255 and §48.355,
and the Texas Family Code, §261.404.
§711.613.Can the investigative report be released?
Yes, but any information must be concealed that would reveal the identities
of the reporter and any person served who is not the victim or alleged victim.
Upon request, the investigative report may be released to:
(1)
for facilities and their contractors, the victim or alleged
victim, guardian, or parent (if the victim or alleged victim is a child),
in accordance with 25 TAC §417.511(b) (relating to Confidentiality of
Investigative Process and Report), or perpetrator in accordance with 25 TAC §417.512(d)
(relating to Classifications and Disciplinary Actions);
(2)
for local authorities, community centers, and their respective
contractors:
(A)
the victim or alleged victim, guardian, or parent (if the
victim or alleged victim is a child), in accordance with 25 TAC §414.559(b)
(relating to Confidentiality of Investigative Process and Report); and
(B)
the perpetrator or alleged perpetrator by the administrator
or contractor CEO; and
(3)
for HCSWs and their contractors, the victim or alleged
victim, guardian, or parent (if the victim or alleged victim is a child),
in accordance with:
(A)
25 TAC Chapter 419, Subchapter D (relating to Home and
Community-based Services (HCS);
(B)
25 TAC Chapter 409, Subchapter L (relating to Mental Retardation
Local Authority Pilot (MRLA) Program); or
(C)
25 TAC Chapter 419, Subchapter P (relating to Home and
Community-based Services - OBRA (HCS-O) Program.
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 23, 2001.
TRD-200101722
C. Ed Davis
Deputy Director, Legal Services
Texas Department of Protective and Regulatory Services
Effective date: May 1, 2001
Proposal publication date: February 9, 2001
For further information, please call: (512) 438-3437
40 TAC §711.801
The new section is adopted under the Human Resources Code
(HRC), Title 2, §48.255 and §48.355, which provides the department
with the right to investigate reports of abuse, exploitation, or neglect of
an elderly or disabled person; and the Texas Family Code, §261.404, which
requires the department to develop joint rules with the Texas Department of
Mental Health and Mental Retardation (TDMHMR) to facilitate investigations
in TDMHMR facilities and related programs.
The new section implements the Human Resources Code, §48.255 and §48.355,
and the Texas Family Code, §261.404.
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 23, 2001.
TRD-200101723
C. Ed Davis
Deputy Director, Legal Services
Texas Department of Protective and Regulatory Services
Effective date: May 1, 2001
Proposal publication date: February 9, 2001
For further information, please call: (512) 438-3437
Part 5.
TEXAS VETERANS LAND BOARD
Chapter 176.
VETERANS HOMES
Chapter 177.
VETERANS HOUSING ASSISTANCE PROGRAM
Part 19.
TEXAS DEPARTMENT OF PROTECTIVE AND REGULATORY SERVICES
Subchapter Y. CONTRACTING WITH LICENSED RESIDENTIAL CHILD-CARE PROVIDERS
Subchapter P. PREPARATION FOR ADULT LIVING
Chapter 710.
PROTECTION OF CLIENTS AND STAFF
Subchapter B. ABUSE, NEGLECT, AND EXPLOITATION OF PERSONS SERVED BY COMMUNITY MENTAL HEALTH AND MENTAL RETARDATION CENTERS
Chapter 711.
INVESTIGATIONS IN TDMHMR FACILITIES AND RELATED PROGRAMS
Subchapter C. DUTY TO REPORT
Subchapter E. CONDUCTING THE INVESTIGATION
Subchapter G. RELEASE OF REPORT AND FINDINGS
Subchapter I. PROVISION OF SERVICES
Subchapter K. REQUESTING A REVIEW OF FINDING IF YOU ARE THE ADMINISTRATOR OR CONTRACTOR CEO