Part 1.
TEXAS DEPARTMENT OF HUMAN SERVICES
Chapter 50.
§1915(C) CONSOLIDATED WAIVER PROGRAM
40 TAC §§50.1, 50.2, 50.4, 50.6, 50.8, 50.10, 50.12, 50.14, 50.16, 50.18, 50.20, 50.22, 50.24, 50.26, 50.28, 50.30, 50.32, 50.34, 50.36, 50.38, 50.40, 50.42, 50.44, 50.46, 50.48
The Texas Department of Human Services (DHS) proposes new §§50.1,
50.2, 50.4, 50.6, 50.8, 50.10, 50.12, 50.14, 50.16, 50.18, 50.20, 50.22, 50.24,
50.26, 50.28, 50.30, 50.32, 50.34, 50.36, 50.38, 50.40, 50.42, 50.44, 50.46,
and 50.48, concerning the §1915(c) Consolidated Waiver Program, in its
new Chapter 50. Section 1915(c) is a part of the Social Security Act.
The purpose of the new sections is to establish the rule base for the Consolidated
Waiver Program (CWP), a §1915(c) waiver pilot program that will provide
home and community-based services to individuals who meet the criteria for
institutional care. The pilot was authorized by Texas Government Code, §531.0219,
for the purpose of testing the feasibility of combining five of the state's §1915(c)
Medicaid waiver programs, including Community Based Alternatives (CBA), Community
Living Assistance and Support Services (CLASS), Deaf Blind Multiple Disabilities
(DBMD), Medically Dependent Children Program (MDCP), and Home and Community
Based Services (HCS). The pilot will be located in Bexar County, an area where
CBA, CLASS, DBMD, HCS, and MDCP are currently operating. These rules will
not repeal or replace any existing §1915(c) waiver rules statewide or
in the pilot area for individuals not participating in the pilot.
Eric M. Bost, commissioner, has determined that for the first five- year
period the proposed sections will be in effect there will be fiscal implications
for state government as a result of enforcing or administering the sections.
The effect on state government for the first five-year period the sections
will be in effect is an estimated additional cost of $687,984 in fiscal year
(FY) 2001; $2,136,921 in FY 2002; $2,243,766 in FY 2003; $2,243,766 in FY
2004; and $2,243,766 in FY 2005. There will be no fiscal implications for
local government as a result of enforcing or administering the sections.
Mr. Bost also has determined that for each year of the first five years
the sections are in effect the public benefit anticipated as a result of adoption
of the proposed rules is the opportunity to test the feasibility of consolidating
and streamlining five §1915(c) waivers, usually administered by three
state agencies, each serving different populations, with different rates and
separate providers. Participants will be selected from interest lists from
existing waivers in the pilot area, with priority given to children in nursing
facilities. The CWP will serve a diverse population in one waiver with one
set of rates, one set of providers, and a broad array of services. It will
allow waiver participants a single point of entry to the Medicaid waivers,
with one administrative agency and lower administrative costs. It will incorporate
permanency planning for children and aging in place for adults to delay or
prevent institutionalization. The pilot will operate for three years, reporting
results of the pilot to the legislature after two years of operation. There
could be a minimal economic effect on large, small, or microbusinesses as
the result of enforcing or administering the sections, as there may be some
cost to providers who choose to enroll in the Consolidated Waiver Program
associated with training staff to serve a broader population than that which
they normally serve. Providers may also have costs associated with the provision
of services they do not normally provide. However, the impact should not be
significant because this is a pilot serving only 200 individuals in a single
county, and these are administrative costs that are considered in setting
reimbursement rates for the program. There is no anticipated economic cost
to persons who are required to comply with the proposed sections.
Questions about the content of this proposal may be directed to Cindy Eilertson
at (512) 438-3443 in DHS's Long Term Care Section. Written comments on the
proposal may be submitted to Supervisor, Rules and Handbooks Unit-070, 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 §2007.003(b) of the Texas Government Code, the department has
determined that Chapter 2007 of the Government Code does not apply to these
rules. Accordingly, the department is not required to complete a takings impact
assessment regarding these rules.
The new sections are proposed under the Human Resources Code,
Title 2, Chapters 22 and 32, which authorize the department to administer
public and medical assistance programs; and under Texas Government Code §531.021,
which provides the Health and Human Services Commission with the authority
to administer federal medical assistance funds.
The new sections implement the Human Resources Code, §§22.001-
22.030 and §§32.001-32.042.
§50.1.Introduction.
The §1915(c) Consolidated Waiver Program is a pilot program authorized
by Texas Government Code §531.0219 for the purpose of testing the feasibility
of combining five of the state's §1915(c) Medicaid waiver programs, including
Community Based Alternatives (CBA), Community Living Assistance and Support
Services (CLASS), Medically Dependent Children Program (MDCP), Home and Community
Based Services (HCS), and Deaf Blind Multiple Disabilities (DBMD). Section
1915(c) Medicaid waiver programs, including the Consolidated Waiver Program,
provide home and community-based services to individuals who meet the criteria
for institutional care. The pilot program is limited to serving 200 individuals
in Bexar County or other areas as designated by the Texas Board of Human Services.
Results of this pilot will be reported to the Texas Legislature in January
2004. These rules are not intended to repeal or replace any existing §1915(c)
waiver rules statewide or in the pilot area for individuals not participating
in the pilot.
§50.2.Definitions.
The following words and terms, when used in this chapter, have the
following meanings, unless the context clearly indicates otherwise:
(1)
Adult--For the purposes of this waiver, an individual,
applicant, or participant who is 21 years of age and older unless indicated
otherwise.
(2)
Advance notice--A statement of the adverse action the state
intends to take, provided in writing to the individual or the individual's
authorized representative advising them of the right to a hearing, the method
by which a hearing may be obtained, and that the individual may represent
himself or use legal counsel, a relative, a friend, or other spokesperson.
A participant is entitled to be notified 10 days before any reduction or termination
of his services and to have the notification mailed 12 days before the date
of reduction or termination.
(3)
Applicant--An individual whose eligibility for waiver services
in the Consolidated Waiver Program (CWP) is in the process of being determined.
An individual becomes an applicant when he is next in line to fill a slot
in the waiver program, a slot exists, DHS has approved the filling of the
slot, DHS has notified the individual, and the individual has submitted the
required application materials to DHS within a specified time frame.
(4)
Case Management--Administrative case management provided
by DHS as a function of the human services specialist, also referred to as
case manager, to CWP participants.
(5)
Child--For the purposes of this waiver, an individual,
applicant, or participant who is under the age of 21, unless indicated otherwise.
(6)
Individual Service Plan (ISP)--Plan of care agreed to by
the Interdisciplinary Team (IDT) as being necessary to prevent institutionalization.
(7)
Interdisciplinary Team (IDT)--At minimum, a group consisting
of the participant (applicant) and his parent or guardian, if appropriate;
DHS case manager; and home and community support services agency (HCSSA) representative.
Other professionals may be included as appropriate, as well as anyone the
participant or applicant chooses to invite to participate.
(8)
Legal confinement--The result of an individual having been
remanded by a judge to a particular setting other than their normal living
arrangement for a specified period of time or to achieve a desired outcome.
Some examples of settings for legal confinement include, but are not limited
to, jails, prisons, hospitals, or institutions for mental disease, or rehabilitation
facilities.
(9)
Participant--An individual who has been determined eligible
to receive waiver services, has enrolled in the Consolidated Waiver Program,
and receives waiver services according to an ISP.
(10)
Respite--A service that provides temporary relief from
caregiving to the primary caregiver of a waiver participant during times when
the participant's primary caregiver would normally provide uncompensated care.
(11)
Suspension of services--A temporary cessation of certain
specified waiver services without loss of program or Medicaid eligibility.
(12)
Waiver program--A Medicaid program that provides home
and community-based services as an alternative to institutional care in accordance
with waiver provisions of the Social Security Act, §1915(c) (42 United
States Code §1396n).
§50.4.Participant Eligibility Criteria.
(a)
To be determined eligible by the Texas Department of Human
Services (DHS) for Consolidated Waiver Program (CWP) services, an applicant
or participant must:
(1)
live in the pilot area;
(2)
meet the financial eligibility criteria as defined in §50.6
of this title (relating to Financial Eligibility Criteria);
(3)
not participate in other §1915(c) Medicaid waiver
programs;
(4)
have an individual service plan for home and community-based
services developed by the interdisciplinary team (IDT). The individual service
plan (ISP) for home and community-based services must specify the type of
waiver services required to keep an individual in the community, the units
of waiver services, and their frequency and duration as defined in §50.16
of this title (relating to Individual Service Plan);
(5)
have an ISP for home and community-based services with
an estimated annual cost that does not exceed:
(A)
125% of the average aggregate cost of intermediate care
facilities for individuals with mental retardation (ICF-MR) Level I and VIII
for individuals who meet the ICF-MR level of care in accordance with §50.8(a)(2)
of this title (relating to Individual Level-of-Care Criteria); or
(B)
150% of the individual's actual Texas Index for Level of
Effort (TILE) payment rate for individuals with a nursing facility level-of-
care in accordance with §50.8(a)(1) of this title (relating to Individual
Level-of-Care Criteria);
(6)
meet the level-of-care criteria as described in §50.8
of this title (relating to Individual Level-of-Care Criteria);
(7)
have ongoing needs for waiver services whose projected
costs, as indicated on the ISP, do not exceed the maximum service ceilings
that follow:
(A)
adaptive aids and medical supplies service category cannot
exceed $10,000 per ISP plan year with DHS maintaining the right to exception;
(B)
minor home modifications service category cannot exceed
$7500 per individual per 7 years until age 21; then the minor home modifications
service category cannot exceed $7500 (lifetime maximum) with a maximum of
$300 for repairs per ISP year thereafter;
(C)
respite care cannot exceed 45 days per individual per ISP
year with DHS maintaining the right to exception; and
(D)
dental care cannot exceed $1000 per ISP year;
(8)
receive waiver services within 30 days after waiver eligibility
is determined;
(9)
meet the re-evaluation of institutional level-of-care criteria
as performed annually by DHS using the same criteria as used initially;
(10)
reside in his own home, in a licensed assisted living
facility, in an adult foster care home, 24-hour residential habilitation or
family surrogate services setting contracted with DHS to provide CWP services,
or in a foster home that meets the requirements for foster homes in accordance
with 40 TAC §700.1501 (concerning Foster and Adoptive Home Development).
CWP services will not be delivered to residents of hospitals, nursing facilities,
ICF-MR facilities, or unlicensed assisted living facilities unless the facility
is exempt in accordance with §50.30 of this title (relating to 24-Hour
Residential Habilitation) as pertains to provider requirements for 24- hour
residential habilitation; and
(11)
choose waiver services as an alternative to institutional
care.
(b)
A preadmission level of care assessment by DHS expires
120 calendar days from its issuance. For participants who are enrolled in
the waiver program within 30 calendar days of discharge from an institution,
the current level-of-care assessment may be used for enrollment and is valid
until the expiration date on the approved ISP;
(c)
Enrollment into this waiver program is limited to the number
of participants approved by the Health Care Financing Administration (HCFA)
and funded by the State of Texas.
(d)
Enrollment in the pilot is restricted to 200 participants
with the following slot allocation:
(1)
50 slots for adults who meet the requirements for nursing
facility care from the Community Based Alternatives (CBA) interest list;
(2)
50 slots for children who meet the requirements for nursing
facility care from the Medically Dependent Children Program (MDCP) interest
list;
(3)
25 slots for adults with mental retardation who meet the
requirements for ICF-MR care level I from the Home and Community Based Services
(HCS) interest list;
(4)
25 slots for children with mental retardation who meet
the requirements for ICF-MR care level I from the HCS interest list;
(5)
25 slots for adults with related conditions or developmental
disabilities who meet the requirements for ICF-MR care level VIII from the
CLASS interest list, with one of these slots specifically targeted to an individual
who is deaf-blind with multiple disabilities from the Deaf Blind Multiple
Disabilities (DBMD) interest list; and
(6)
25 slots for children with related conditions or developmental
disabilities who meet the requirements for ICF-MR care level VIII from the
CLASS interest list, with one of these slots specifically targeted to an individual
who is deaf-blind with multiple disabilities from the DBMD interest list.
§50.6.Financial Eligibility Criteria.
An applicant or participant is financially eligible for the Consolidated
Waiver Program (CWP) if he:
(1)
is eligible for supplemental security income (SSI) benefits;
or
(2)
has been eligible for and received SSI benefits and continues
to be eligible for Medicaid as a result of protective coverage mandated by
federal law; or
(3)
is under age 18 and resides with their parent, spouse,
foster family, or other relative, and:
(A)
is eligible for Medicaid benefits only if institutionalized;
(B)
meets the SSI criteria for disability, as documented on
the appropriate Texas Department of Human Services (DHS) forms;
(C)
meets the SSI criteria for institutional deeming; and
(D)
has income and resources that meet the requirements of
the SSI Program; or
(4)
is financially eligible for SSI benefits in the community
except for income and meets the special institutional income limit for Medicaid
benefits in Texas without regard to spousal income; or
(5)
is under age 19 and financially the responsibility of the
Texas Department of Protective and Regulatory Services (TDPRS), in whole or
in part (not to exceed Level II foster care payment), and is being cared for
in a family foster home licensed or certified and supervised by:
(A)
TDPRS; or
(B)
a licensed public or private nonprofit child-placing agency;
or
(6)
is a member of a family who receives full Medicaid benefits
as a result of qualifying for Temporary Aid to Needy Families (TANF).
§50.8.Individual Level of Care Criteria.
(a)
An applicant or participant must meet one of the following
level- of-care (LOC) requirements for the Consolidated Waiver Program (CWP):
(1)
the level-of-care criteria for medical necessity for nursing
facility care in accordance with §19.2409 of this title (relating to
General Qualifications for At-Risk Assessments and Medical Necessity Determinations)
and §19.2410 of this title (relating to Criteria Specific to a Medical
Necessity Determination); or
(2)
the level-of-care criteria for an intermediate care facility
for the mentally retarded (ICF-MR) as determined by the Texas Department of
Human Services (DHS) indicating that an individual has had a determination
of mental retardation performed in accordance with Texas Health and Safety
Code, Chapter 593, Admission and Commitment to Mental Retardation Services,
Subchapter A; or has been diagnosed by a licensed physician as having a related
condition as defined in 25 TAC §406.202 (concerning Definitions) as the
rule was effective June 1, 2001, and as verified by a current level-of-care
assessment that indicates one of the following is required:
(A)
intermediate care facility for the mentally retarded with
related conditions (ICF-MR/RC level VIII); or
(B)
intermediate care facility for the mentally retarded (ICF-MR
level I).
(b)
Additional criteria related to level-of-care must be met
as outlined in §50.10 of this title (relating to Additional Eligibility
Criteria Related to Level of Care).
§50.10.Additional Eligibility Criteria Related to Level of Care.
(a)
Individuals who meet the level-of-care criteria for medical
necessity for nursing facility care in accordance with §50.8(a)(1) of
this title (relating to Individual Level of Care Criteria) must also meet
the following requirements:
(1)
meet two or more of the criteria for nursing home risk,
as specified in the Resident Assessment Instrument Home Care Assessment for
Nursing Home Risk as revised in April 1996 in accordance with §48.6003(10)(A-G)
of this title (relating to Client Eligibility Criteria Nursing Home Risk),
except for the following individuals who are exempt from meeting the nursing
home risk criteria if:
(A)
transferring to the Consolidated Waiver Program (CWP) from
a nursing facility or
(B)
applying for or receiving §1915(c) waiver services
before their 21st birthday; and
(2)
if under 21 years of age:
(A)
the participant must access services through the Comprehensive
Care Program; and
(B)
yearly Consolidated Waiver Program services are limited
to 50% of the cost ceiling in §50.4(a)(5)(B) of this title (relating
to Participant Eligibility Criteria).
(b)
Individuals who meet the level-of-care criteria for an
intermediate care facility for the mentally retarded with related conditions
(ICF-MR/RC Level VIII) in accordance with §50.8(a)(2)(A) of this title
(relating to Individual Level of Care Criteria) and who wish to fill slots
in the program designated for people who are deaf- blind with multiple disabilities
must provide medical documentation that verifies the existence of deaf blindness
with multiple disabilities.
§50.12.Spousal Impoverishment Provisions.
(a)
For waiver participants with spouses who live in the community,
the income and resource eligibility requirements are determined according
to the spousal impoverishment provisions in the Social Security Act, §1924,
and as specified in the Medicaid state plan and in §50.6 of this title
(relating to Financial Eligibility Criteria).
(b)
After the participant is determined to be eligible for
Medicaid, a determination is made by the Texas Department of Human Services
(DHS) regarding the amount of the recipient's income applicable to payment.
§50.14.Calculation of Participant Copayment.
(a)
Participants who are determined to be financially eligible
based on the special institutional income limit are required to share in the
cost of waiver services. The method for determining the participant's copayment
is described in subsection (b) of this section and documented on the Texas
Department of Human Services (DHS) copayment worksheet for §1915(c) waiver
programs. When calculating the copayment amount for participants with incomes
that exceed the supplemental security income (SSI) federal benefit rate (FBR),
DHS staff deduct the following:
(1)
the cost of the participant's maintenance needs that must
be equivalent to:
(A)
the special institutional income limit for waiver recipients
residing in their own homes; or
(B)
the SSI FBR per month for individuals residing in foster
homes, assisted living facilities, 24-hour residential habilitation, or family
surrogate services settings;
(2)
the special couple institutional income limit for waiver
recipients for couples residing in adult foster care, assisted living facility,
24-hour residential habilitation, or family surrogate services settings that
is equivalent to the FBR for an individual living in other community living
arrangements for each member of the couple;
(3)
the cost of the maintenance needs of the participant's
spouse. This amount is equivalent to the amount of the SSI FBR, less the spouse's
own income;
(4)
the cost of the maintenance needs of the client's dependent
children. This amount is equivalent to the Temporary Assistance to Needy Families
(TANF) basic monthly grant for children or a spouse with children, using the
recognizable needs amounts in the TANF budgetary allowances chart; and
(5)
the costs incurred for medical or remedial care that are
necessary but are not subject to payment by Medicare, Medicaid, or any other
third party. These include the cost of health insurance premiums, deductibles,
and coinsurance.
(b)
The copayment amount is the participant's remaining income
after all allowable expenses have been deducted. The copayment amount is applied
only to the cost of home and community-based services that are funded through
this waiver program and specified on the participant's individual service
plan. The copayment must not exceed the cost of services actually delivered.
(c)
Participants must pay the cost-sharing amount directly
to the providers contracted to deliver authorized waiver services.
§50.16.Individual Service Plan (ISP).
(a)
Waiver participants must have an individual service plan
(ISP) for waiver services developed by the interdisciplinary team (IDT) as
described in the waiver request.
(b)
The IDT members must sign and date the ISP prior to implementation
of the plan. The IDT members must certify in writing that the waiver services
are necessary as an alternative to institutionalization and appropriate to
meet the needs of the individual in the community.
(c)
The Texas Department of Human Services (DHS) must approve
and the IDT must update the ISP at least annually.
§50.18.Right to Appeal.
(a)
Any applicant or participant who is denied waiver program
services is entitled to a fair hearing conducted by the Texas Department of
Human Services (DHS), according to the Health and Human Service Commission's
Uniform Fair Hearing Rules in Title I, Chapter 357 of this code.
(b)
A participant whose waiver services are reduced or denied
must be given advance notice as defined in §50.2 of this title (relating
to Definitions) and is entitled to a fair hearing as indicated in subsection
(a) of this section.
§50.20.Provider Claims Payment.
(a)
The agency providing Consolidated Waiver Program (CWP)
services is reimbursed based on a fee-for-service reimbursement methodology.
Units of service that have been provided must be documented and must be authorized
on and delivered according to the individual service plan.
(b)
Room and board are not included in the reimbursement rate
to providers except in the case of respite care services. Respite care services
must not exceed 45 calendar days per year per client.
(c)
The agency providing CWP services is not entitled to payment
if the Texas Department of Human Services (DHS) has not authorized client
enrollment.
§50.22.Service Array for Home and Community Support Services Providers.
Home and community support services agencies (HCSSAs) must provide
the following array of home and community support services in accordance with
the individual service plan (ISP) through their own employees, subcontractors,
or personal service agreements with qualified individuals:
(1)
personal assistance services;
(2)
in-home respite care;
(3)
habilitation;
(4)
adaptive aids;
(5)
medical supplies;
(6)
minor home modifications;
(7)
transportation;
(8)
nursing;
(9)
physical therapy;
(10)
occupational therapy;
(11)
speech and language pathology;
(12)
psychological services;
(13)
social work;
(14)
audiology services;
(15)
behavioral communication services;
(16)
orientation and mobility specialist services;
(17)
dietary services;
(18)
dental services;
(19)
child support services;
(20)
intervenor services; and
(21)
24-hour residential habilitation. Additional requirements
for 24- hour residential habilitation providers are listed in §50.30
of this title (relating to 24-Hour Residential Habilitation).
§50.24.General Contracting.
(a)
Home and community support services agencies (HCSSAs).
To be qualified as a HCSSA provider to deliver Consolidated Waiver Program
(CWP) services under contract with the Texas Department of Human Services
(DHS), a HCSSA must:
(1)
have a separate contract with DHS to provide CWP services
in the designated service area in which services are to be delivered;
(2)
deliver CWP services through the licensed home health category
of HCSSA licensure;
(3)
have the county in the DHS contract for CWP services included
in the identified service area on file at DHS with the licensed home health
category of licensure;
(4)
be authorized by the secretary of state to do business
in the State of Texas, if an out-of-state corporation; and
(5)
meet all requirements outlined in §48.6028 of this
title (relating to Provisional Contracts - Home and Community Support Service
Agencies). The reference to Community Based Alternatives (CBA) contract in §48.6028(k)(2)
and (3) means Consolidated Waiver Program (CWP) contract for home and community
support service agency providers that are contracted to deliver CWP services.
(b)
Emergency Response Services (ERS). To contract with DHS
to provide ERS under the CWP, a legal entity must:
(1)
have a 24-hour, seven-day-a-week emergency response monitoring
capability;
(2)
be a public agency or a private not-for-profit or for-profit
corporation that is either chartered with or authorized by the secretary of
state to transact business within the State of Texas;
(3)
be licensed by the Texas Commission on Private Security,
unless exempt from its regulation. The provider agency must send a copy of
its license and a copy of the annual renewal of its license to DHS; and
(4)
have a separate contract with DHS to provide CWP services
in the designated service area in which services are to be delivered.
(c)
Adult Foster Care (AFC). To contract with DHS to provide
AFC services under the CWP, the provider must:
(1)
be enrolled by DHS as a CWP adult foster care provider;
(2)
be serving four or fewer participants;
(3)
if serving four participants, be licensed by DHS as a Type
C Assisted Living Facility as defined in §92.4(3) of this title (relating
to Types of Assisted Living Facilities) of the DHS Licensing Standards for
Assisted Living Facilities;
(4)
agree to comply with all Adult Foster Care standards found
in the Community Based Alternatives (CBA) Provider Manual, Section 4200, Adult
Foster Care; and
(5)
have a separate contract with DHS to provide CWP services
in the designated service area in which services are to be delivered.
(d)
Assisted Living/Residential Care (AL/RC). To contract with
DHS to provide assisted living/residential care services under the CWP, the
facility must be licensed as an assisted living facility by DHS, type "A"
or "B" as defined in Chapter 92 of this title (relating to Licensing Standards
for Assisted Living Facilities); and have a separate contract with DHS to
provide CWP services in the designated service area in which services are
to be delivered.
(e)
Home-delivered Meals (HDM). To contract with DHS to provide
home delivered meals under the CWP, the provider must:
(1)
meet state, local health, and DHS requirements in the handling,
transporting, serving and delivery of these meals;
(2)
ensure that menus for standard diets are developed using
Dietary Guidelines for Americans and are reviewed and approved by a registered
dietitian;
(3)
ensure that menus for therapeutic and modified diets are
written by and prepared under the supervision of a registered dietitian;
(4)
ensure that established procedures are in place to assure
that each participant who requires a therapeutic and modified meal receives
only the meal ordered for that individual; and
(5)
have a separate contract with DHS to provide CWP services
in the designated service area in which services are to be delivered.
(f)
Out-of-home respite. To contract with DHS to provide out-of-home
respite services under the CWP, providers must have a separate contract with
DHS to provide CWP services in the designated service area in which services
are to be delivered and be one of the following:
(1)
a licensed Intermediate Care Facility for Individuals with
Mental Retardation (ICF-MR);
(2)
a licensed hospital;
(3)
a licensed nursing facility;
(4)
one of the American Camping Association's accredited camps;
(5)
a child care center that meets state requirements for respite;
(6)
an assisted living facility in accordance with §50.24(d)
of this title (relating to General Contracting); or
(7)
an adult foster care facility meeting the requirements
in §50.24(c) of this title (relating to General Contracting).
(g)
Family surrogate services. To contract with DHS to provide
family surrogate services (available only to CWP participants younger than
18 years of age), providers must meet all the requirements of the Texas Department
of Protective and Regulatory Services (TDPRS) minimum standards for Independent
Foster Family Homes pursuant to 40 TAC §720.231-720.248 (concerning Standards
for Foster Family Homes). Additional provider requirements are outlined in §50.26
of this title (relating to Care Options in Family Surrogate Services).
(h)
Independent advocacy. To contract with DHS to provide Independent
Advocacy services, the provider:
(1)
must be 21 years of age or older;
(2)
must be chosen and recommended for contract enrollment
by the participant;
(3)
must be capable of performing advocacy functions as described
in the waiver service description, which are specific to the participant's
needs;
(4)
cannot be providing any other CWP services to the participant;
and
(5)
cannot be the participant's parent, spouse, or first-degree
relative.
(i)
In addition to the requirements in subsections (a)-(h)
of this section, all providers contracted to deliver CWP services must adhere
to the rules found in Chapter 49 of this title (relating to Contracting for
Community Care Services).
§50.26.Care Options in Family Surrogate Services.
(a)
In addition to the requirements outlined in §50.24
of this title (relating to General Contracting), Family Surrogate Services
providers must provide services:
(1)
to no more than three children receiving similar services
in the same residence at any one time;
(2)
in a home in which the Family Surrogate Services provider
has legal responsibility for the residence;
(3)
in a home that is a typical residence within the community;
and
(4)
in a residence, neighborhood and community that meets the
needs and choices of each individual and provides an environment that assures
the health, safety, comfort and welfare of the individual.
(b)
For any child who is a Consolidated Waiver Program (CWP)
participant and is placed in a Family Surrogate Services setting, the Family
Surrogate Services provider, along with the Interdisciplinary Team (IDT):
(1)
justifies the reasons for serving a minor individual outside
the natural or adoptive family home;
(2)
makes every possible effort to return a minor individual
being served outside his or her natural or adoptive family home to his or
her family home as soon as possible; and
(3)
documents permanency planning and appropriate habilitation
goals in the Individual Service Plan (ISP);
(c)
The Family Surrogate Services provider must provide care
to the CWP participant as appropriate and authorized on the ISP, including:
(1)
direct personal assistance with activities of daily living
(grooming, eating, bathing, dressing, and personal hygiene);
(2)
assistance with meal planning and preparation;
(3)
securing and providing transportation;
(4)
assistance with housekeeping;
(5)
assistance with ambulation and mobility;
(6)
reinforcement of counseling and therapy activities;
(7)
assistance with medications and the performance of tasks
delegated by a registered nurse;
(8)
supervision of individuals' safety and security;
(9)
facilitating inclusion in community activities, use of
natural supports, social interaction, participation in leisure activities,
and development of socially valued behaviors; and
(10)
habilitation, exclusive of day habilitation.
(d)
The Family Surrogate Services provider:
(1)
allows the individual's family members and friends access
to the individual without arbitrary restrictions unless exceptional conditions
are justified by the individual's IDT, documented in the ISP, and approved
by the DHS human services specialist;
(2)
ensures that a school-age individual receives educational
services in a six-hour-per-day program five days a week provided by the local
school district and that no individual receives educational services at a
state school/state center educational setting, unless contraindications are
documented with justification by the IDT;
(3)
ensures that a pre-school-age individual receives an early
childhood education with appropriate activities and services, including but
not limited to small group and individual play with peers without disabilities,
unless contraindications are documented with justification by the IDT; and
(4)
provides individuals with age-appropriate activities that
enhance self-esteem and maximize functional level.
§50.28.Housing Options in Assisted Living/Residential Care Services.
(a)
An assisted living apartment setting is an apartment for
single occupancy that is a private space with individual living and sleeping
areas, a kitchen, bathroom, and adequate storage space. It must meet the following
requirements:
(1)
the apartment must have a minimum of 220 square feet, not
including the bathroom;
(2)
the kitchen must be equipped with a sink, refrigerator,
a cooking appliance that can be removed or disconnected, adequate space for
food preparation, and storage space for utensils and supplies. A cooking appliance
may be a stove, microwave, or built-in surface unit;
(3)
the bathroom must be a separate room in the individual's
living area with a toilet, sink, and an accessible bath; and
(4)
the bedroom must be single occupancy except when double
occupancy is requested by the participant.
(b)
A residential care apartment must be a double occupancy
apartment with a connected bedroom, kitchen, and bathroom area that meets
the following requirements:
(1)
the apartment must provide a minimum of 350 square feet
of space per participant. Indoor common areas used by waiver participants
may be included in computing the minimum square footage. The portion of the
common area allocated must not exceed usable square footage divided by the
maximum number of individuals who have access to the common areas; and
(2)
the kitchen must be equipped with a sink, refrigerator,
a cooking appliance that can be removed or disconnected, adequate space for
food preparation, and storage space for utensils and supplies. A cooking appliance
may be a stove, microwave, or built-in surface unit.
(c)
The assisted living/residential care apartment may be an
efficiency or one- or two-bedroom apartment, and each apartment must have
a private bath and cooking facilities.
(d)
A residential care non-apartment setting is a licensed
assisted living facility that has living units that do not meet either the
definition of an assisted living apartment or a residential care apartment.
Living units may be double occupancy. The facility must:
(1)
be freestanding; and
(2)
be licensed for 16 or fewer beds.
§50.30.24-Hour Residential Habilitation.
To contract with the Texas Department of Human Services (DHS) to provide
24-hour residential habilitation (available only to Consolidated Waiver Program
(CWP) participants 18 years of age and older), providers must:
(1)
be licensed Home and Community Support Services Agencies
(HCSSA) in accordance with Chapter 97 of this title (relating to Home and
Community Support Services Agencies);
(2)
have a contract with DHS to provide CWP services as a HCSSA,
as specified in §50.24 of this title (relating to General Contracting).
(3)
serve no more than four individuals receiving similar services
at one location; and
(4)
either:
(A)
be licensed type "A" or "B" assisted living facilities;
or
(B)
meet current state assisted living licensure exemptions
for this type of facility as outlined in Health and Safety Code, §247.004(4).
This exemption requires the Texas Department of Mental Health and Mental Retardation
(TDMHMR) to monitor these providers. TDMHMR will only monitor them if the
provider is certified as a Home Community- Based Services (HCS) provider in
good standing with TDMHMR and there is at least one person receiving HCS at
the specific location. In order to meet this exemption, the provider must:
(i)
have a contract with TDMHMR to provide HCS services; and
(ii)
be in good standing with TDMHMR; and
(iii)
have at least one person receiving HCS services on the
premises.
§50.32.Maintenance of Interest Lists.
(a)
The Consolidated Waiver Program (CWP) staff maintain a
list of individuals, identified from existing §1915(c) waiver interest
lists, who have expressed an interest in receiving §1915(c) waiver services.
The list can be accessed by Texas Department of Human Services (DHS) staff
and is organized by age, institutional base, and Mental Retardation/Developmental
Disability status in order to fulfill the slot allocation as outlined in §50.4(d)
of this title (relating to Participant Eligibility Criteria).
(b)
The CWP staff assign an applicant's placement on the interest
list chronologically by date of request for waiver services.
(c)
The CWP staff remove an individual's name from the interest
list only if it is documented that:
(1)
a written request has been received from the individual
or their representative to remove the individual's name from the interest
list;
(2)
the individual is deceased;
(3)
the individual moved out of the designated pilot service
area;
(4)
the Texas Department of Human Services (DHS) has denied
the applicant enrollment and the applicant or their representative has had
an opportunity to exercise the applicant's right to appeal the decision according
to §50.18 of this title (relating to Right to Appeal);
(5)
the individual or the individual's representative has not
responded to the CWP's notification of a program vacancy within 30 calendar
days of the date of the CWP's written notification;
(6)
the individual is receiving §1915(c) waiver services;
(7)
the individual or the individual's representative chooses
participation in another §1915(c) Medicaid waiver program instead of
the CWP when offered this choice in accordance with §50.4(a) of this
title (relating to Participant Eligibility Criteria);
(8)
the individual or the individual's representative refuses
CWP services; or
(9)
the applicant is certified as eligible for CWP services.
§50.34.Calculation of Room and Board Amounts.
(a)
The Consolidated Waiver Program (CWP) does not reimburse
providers for room and board, as indicated in §50.20 of this title (relating
to Provider Claims Payment). Participants who receive CWP services other than
respite in a residential setting of adult foster care, assisted living/residential
care, 24-hour residential habilitation, or family surrogate services setting
are required to pay their own room and board directly to the provider.
(b)
To determine the room and board amounts for participants
residing in adult foster care, 24-hour residential habilitation, family surrogate
services, or assisted living facilities, Texas Department of Human Services
(DHS) staff apply the following post-eligibility calculations:
(1)
for individuals, the room and board amount is the supplemental
security income (SSI) federal benefit rate (FBR) minus the personal needs
allowance;
(2)
for SSI couples, the room and board amount is the SSI FBR
minus the personal needs allowance for an individual multiplied by 2; or
(3)
for couples with incomes that exceed the SSI FBR for couples,
the room and board amount is the couple's monthly income minus the personal
needs allowance for an individual multiplied by 2. This amount cannot exceed
double the room and board amount for an individual.
§50.36.Circumstances Requiring Denial of Services with Advance Notice.
(a)
Advance notice is a statement of the action the state intends
to take provided in writing to the individual or the individual's authorized
representative. Advance notice advises them of the right to a hearing, the
method by which a hearing may be obtained, and that the individual may represent
himself, or use legal counsel, a relative, a friend, or other spokesperson.
The Texas Department of Human Services (DHS) must mail a notice to the participant
at least 12 days before the day of action.
(b)
The Consolidated Waiver Program (CWP) provider agency must
provide written documentation to the DHS case manager within two DHS workdays
of the occurrence to support a recommendation for denial of CWP services,
if one or more of the circumstances occurs:
(1)
the participant leaves the pilot area for more than 90
days. DHS retains the authority to extend this time in extraordinary circumstances;
(2)
the participant has been legally confined or has resided
in an institutional setting for longer than 120 days. An institution includes
legal confinement, an acute-care hospital, a state hospital, a rehabilitation
hospital, a state school, a nursing home, or an intermediate-care facility
for persons with mental retardation/related conditions (ICF-MR/RC). DHS will
retain authority to extend this time in extraordinary circumstances;
(3)
the participant is not financially eligible for Medicaid
benefits;
(4)
the participant does not meet the individual level-of-care
criteria as set out in §50.8 of this title (relating to Individual Level-of-Care
Criteria);
(5)
the estimated cost of the CWP services necessary to adequately
meet the needs of the participant exceeds the CWP cost ceiling;
(6)
Home and community support services agencies (HCSSA) providers
have refused to serve the participant on the basis of a reasonable expectation
that the participant's medical and nursing needs cannot be met adequately
in the participant's residence;
(7)
the participant or someone in the participant's home refuses
to comply with mandatory program requirements, including the determination
of eligibility and/or the monitoring of service delivery;
(8)
the participant fails to pay his room and board expenses
or copayment in the adult foster care, assisted living/residential care, 24-hour
residential habilitation, or family surrogate services setting;
(9)
the participant fails to pay his qualified income trust
copayment;
(10)
the situation, participant, or someone in the participant's
home is hazardous to the health and safety of the service provider, but there
is no immediate threat to the health or safety of the provider; or
(11)
the participant or someone in the participant's home openly
uses illegal drugs or has illegal drugs readily available within sight of
the service provider.
(c)
The supporting documentation must include a description
of the interventions that have occurred before the decision to recommend the
denial of services. The documentation must justify the reasons for denial
and describe the strategies, outcomes, and negotiations with the participant
in accordance with the program policies outlined in CWP policy letters or
the CWP provider manual.
(d)
If the DHS case manager determines the documentation supports
initiation of denial, the case manager provides written notification of denial
to the participant and CWP provider agency within two DHS workdays of receipt
of the provider's written recommendation for denial. The written notification
must specify the reason for denial, along with the regulatory reference, the
effective date of denial, and provide written notice of the right to appeal.
(e)
If the participant appeals the notification of denial within
10 days of receiving written notification, the CWP provider agency continues
CWP services until notification of the decision by the DHS hearing officer.
The CWP provider agency must not reduce waiver services until the outcome
of the appeal is known.
§50.38.Circumstances Requiring Denial of Services and Medicaid Eligibility Without Advance Notice.
(a)
The Texas Department of Human Services (DHS) case manager
is required to deny Consolidated Waiver Program (CWP) services without advance
notice as defined in §50.2 of this title (relating to Definitions) and §50.18
of this title (relating to Right to Appeal), if one or more of the following
occurs:
(1)
the operating agency or its designee has factual information
confirming the death of the participant;
(2)
the operating agency or its designee receives a clearly
written statement signed by the participant that:
(A)
he no longer wishes services; or
(B)
gives information that requires termination or reduction
in services and indicates that he understands that this must be the result
of supplying that information;
(3)
the participant's whereabouts are unknown and the post
office returns agency or designee mail directed to him or her indicating no
forwarding address;
(4)
the operating agency or its designee establishes the fact
that the participant has been accepted for Medicaid services by another state;
or
(5)
a change in the level of medical care is prescribed by
the participant's physician that indicates that due to the individual's change
in condition, the participant is no longer appropriate for waiver services.
(b)
The CWP provider agency must verbally notify the DHS case
manager by the next DHS workday of the reason for denial and provide written
documentation on the case information form within two DHS workdays of the
verbal notification.
§50.40.Circumstances That May Result in Denial of Services and Require Advance Notice.
(a)
If one or both circumstances specified in paragraphs (1)-(2)
of this subsection occur, the Texas Department of Human Services (DHS) case
manager may deny Consolidated Waiver Program (CWP) services. The CWP provider
agency must provide written documentation to DHS to support the reason for
the denial of services:
(1)
The participant or someone in the participant's home has
a substantial and demonstrated pattern of verbal abuse and harassment of service
providers, not related to the participant's disability, that results in an
inability to provide services to the participant;
(2)
The participant or someone in the participant's home has
a substantial and demonstrated pattern of discrimination against the service
providers on the basis of race, color, national origin, age, sex, or disability
that has not improved with appropriate intervention and that results in an
inability to provide services to the participant.
(b)
The case manager must mail advance written notification
of denial of services to the participant with written notice of the right
to appeal at least 12 days before the effective date of the denial. The notification
must specify the reason for denial, along with the regulatory reference, and
the effective date of denial.
(c)
If the participant appeals the denial of services within
10 days of written notification, the CWP provider agency must continue CWP
services until notification of the decision by the DHS hearing officer. The
CWP provider agency must not reduce or suspend services until the outcome
of the appeal is known.
§50.42.Crisis Intervention Requiring Immediate Suspension or Reduction of Services without Advance Notice.
(a)
If the participant or someone in the participant's place
of residence exhibits reckless behavior that may result in imminent danger
to the health and safety of service providers, the Texas Department of Human
Services (DHS) case manager and Consolidated Waiver Program (CWP) provider
agency are required to make an immediate referral for appropriate crisis intervention
services to the Texas Department of Protective and Regulatory Services (TDPRS)
and/or the police and suspend CWP services. Suspension of services is defined
in §50.2 of this title (relating to CWP Definitions).
(b)
The DHS case manager must immediately provide written notice
of temporary suspension to the participant and the right of appeal to a fair
hearing must be explained to the participant. The written notification must
specify the reason for denial or suspension, along with the regulatory reference,
the effective date, and the right of appeal.
(c)
The CWP provider agency must verbally inform the DHS case
manager by the following DHS workday of the reason for the immediate suspension
and provide written notification to DHS within two DHS workdays of verbal
notification.
(d)
The DHS case manager must make a face-to-face visit to
initiate efforts to resolve the situation. If the temporary suspension of
services constitutes a threat to the health and safety of the participant,
community alternatives or placement in an institutional setting must be offered
and facilitated by the case manager.
(e)
With prior authorization by DHS, the CWP provider agency
may continue providing services to assist in the resolution of the crisis.
This service will be reimbursed as an administrative expense.
(f)
If the crisis is not satisfactorily resolved, the DHS case
manager provides notification of denial of services and offers the right of
appeal. Services do not continue during the appeal process.
§50.44.Immediate Suspension Due to Temporary Institutional Stay.
(a)
If the participant becomes legally confined or is admitted
to an institution, the Consolidated Waiver Program (CWP) provider agency is
required to immediately suspend CWP services. An institution includes an acute-care
hospital, state hospital, rehabilitation hospital, state school, nursing home,
or intermediate-care facility.
(b)
The CWP provider agency must verbally notify the Texas
Department of Human Services (DHS) case manager by the next DHS workday of
the reason for suspension and provide written documentation on the case information
form within two DHS workdays of the verbal notification.
§50.46.Sanctions.
(a)
The Texas Department of Human Services (DHS) may sanction,
up to and including contract termination, a Consolidated Waiver Program (CWP)
provider agency that:
(1)
has discontinued services to a participant for a reason
other than what is allowed in §50.42 of this title (relating to Crisis
Intervention Requiring Immediate Suspension or Reduction of Services without
Advance Notice) and §50.44 of this title (relating to Immediate Suspension
Due to Temporary Institutional Stay);
(2)
uses the information cited in §50.42 to this title
(relating to Crisis Intervention Requiring Immediate Suspension or Reduction
of Services without Advance Notice) to discontinue services to a participant
when the provider agency knew or should have known that the cited information
did not apply to the participant; or
(3)
is a Home and Community-based Services (HCS) provider who
is being monitored by the Texas Department of Mental Health and Mental Retardation
(TDMHMR) as indicated in §50.30 of this title (relating to 24-Hour Residential
Habilitation) when DHS receives a recommendation from TDMHMR that the provider
should be sanctioned or is being sanctioned by TDMHMR.
(b)
Additional reasons for the CWP provider agency sanctions
are located in §49.19 of this title (relating to Contracting for Community
Care Services).
§50.48.Utilization Review.
(a)
The Texas Department of Human Services (DHS) will review
a proposed Individual Service Plan (ISP) and supporting documentation specified
in §50.16 of this title (relating to Individual Service Plan for Waiver
Services) upon receipt of a proposed ISP having a cost that exceeds 100% of:
(1)
the Nursing Facility Texas Index for Level of Effort for
individuals who meet the level-of-care criteria for medical necessity for
nursing facility care in accordance with §50.8(a)(1) of this title (relating
to Individual Level of Care Criteria); or
(2)
the estimated annualized average per capita cost for Intermediate
Care Facility for Individuals with Mental Retardation (ICF/MR) services for
individuals who meet the level-of-care criteria for an ICF/MR in accordance
with §50.8(a)(2) of this title (relating to Individual Level of Care
Criteria).
(b)
DHS will review the proposed ISP to determine if the type
and amount of CWP program services specified in the ISP are appropriate and
supported by documentation specified in §50.16 of this title (relating
to Individual Service Plan). After reviewing the proposed ISP and supporting
documentation, DHS may request additional documentation. DHS will review any
additional documentation submitted in accordance with its request. DHS may
modify an ISP based on its review and approve the proposed ISP or send written
notification that the proposed ISP has been approved with modifications.
(c)
Subsections (a)-(b) of this section do not apply to ISPs
that are being denied due to exceeding the cost ceiling as defined in §50.4(a)(5)(A)-(B)
of this title (relating to Participant Eligibility Criteria).
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 April 9, 2001.
TRD-200102016
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: May 20, 2001
For further information, please call: (512) 438-3108
Chapter 141.
GENERAL PROVISIONS
Part 3.
TEXAS COMMISSION ON ALCOHOL AND DRUG ABUSE