For further information, please call: (512) 438-3108

Subchapter B. ELIGIBILITY REQUIREMENTS

40 TAC §§30.10, 30.12, 30.14, 30.16, 30.18, 30.20

The new sections implement the Human Resources Code, §§22.001-22.030 and §§32.001-32.042.

§30.14.Certification of Terminal Illness.

Timing of certification.

Except as provided in paragraph (2) of this subsection, the hospice must obtain the written certification of terminal illness from a physician no later than two calendar days after the period begins.

For the initial period, if the hospice cannot obtain the written certification within two calendar days, it must obtain oral certifications within two calendar days and written certification no later than eight calendar days after the period begins.

Upon receipt of the certification, hospice staff must:

make an appropriate entry in the patient's medical record as soon as they receive an oral certification; and

file written certifications in the medical record.

Content of certification. The certification must specify that the individual's prognosis is for a life expectancy of six months or less if the terminal illness runs its normal course.

Sources of certification.

For the initial period, the hospice must obtain written certification statements, and oral certification statements if required under subsection (a)(2) of this section, from:

the medical director of the hospice or the physician member of the hospice interdisciplinary group; and

the individual's attending physician if the individual has an attending physician.

For subsequent periods after the first year, the hospice must conduct a client-specific comprehensive assessment that:

identifies the client's need for hospice services in the areas of medical, nursing, social, emotional, and spiritual care. Hospice services include, but are not limited to, the palliation and management of the terminal illness and conditions related to the terminal illness; and

contains a narrative from the physician which clearly identifies the reasons the patient is considered terminally ill; with a prognosis of less than six months to live.

The assessment must be done no earlier than 30 workdays prior to the recertification date. The hospice provider must retain copies of all physician's certification statements, a current Texas Index for Level of Effort (TILE) assessment, if applicable, and the client-specific comprehensive assessment in both the hospice's records for the recipient and the recipient's nursing facility clinical record, if applicable.

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 February 1, 2001.

TRD-200100671

For further information, please call: (512) 438-3108

Subchapter C. PROVIDER REQUIREMENTS FOR ENTRANCE INTO THE TEXAS MEDICAID HOSPICE PROGRAM; DISCLOSURE REQUIREMENTS

40 TAC §§30.30, 30.32, 30.34, 30.36

The new sections implement the Human Resources Code, §§22.001- 22.030 and §§32.001-32.042.

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 February 1, 2001.

TRD-200100672

For further information, please call: (512) 438-3108

Subchapter D. PROVIDERS' CONDITIONS OF PARTICIPATION: OTHER SERVICES

40 TAC §30.40

The new section is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which authorizes 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 section implements the Human Resources Code, §§22.001- 22.030 and §§32.001-32.042.

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 February 1, 2001.

TRD-200100673

For further information, please call: (512) 438-3108

Subchapter E. COVERED SERVICES

40 TAC §§30.50, 30.52, 30.54

The new sections implement the Human Resources Code, §§22.001- 22.030 and §§32.001-32.042.

§30.54.Special Coverage Requirements.

Continuous home care. Continuous care is to be provided only during periods of crisis to maintain the recipient at the recipient's place of residence. A period of crisis is a period in which a recipient requires continuous care which is primarily skilled nursing care to achieve palliation or management of acute medical symptoms.

A minimum of eight hours of continuous home care must be provided during a 24-hour day which begins and ends at midnight. The care need not be continuous, for example, four hours could be provided in the morning and another four hours in the evening of that day.

Skilled nursing care must be provided for more than half of the continuous home care period and must be provided by either a registered nurse or licensed vocational nurse.

Homemaker, home health aide services, medical social work, or chaplain services may be provided to supplement the nursing care. The provider must document why social work or chaplain services were needed and what was accomplished during continuous home care. While on-call staff may be used to provide continuous home care; staff, however, must be on site, providing care to the recipient in their place of residence to be considered for inclusion in continuous home care hours.

The services may be provided for up to five consecutive days.

The provider must have a physician's order and a documented medical need for skilled nursing care in the recipient's record and in the plan of care. The plan of care must be established by the attending physician, hospice medical director or his designee, and the interdisciplinary team, and coordinated by the hospice registered nurse. The plan of care must include the needs of the recipient; identification of the services, including management of discomfort and symptom relief; and the scope and frequency of the services needed to meet the needs of both the recipient and family.

Prior to providing continuous home care, the provider must advise and discuss with the family or responsible party that temporary alternate placement may be necessary at the end of the five consecutive days. The provider must document the discussion with the family or responsible party in the recipient's records.

If the provider believes that the crisis period will extend beyond the five consecutive days, the interdisciplinary team must discuss the temporary placement alternatives available to meet the needs of the recipient during the crisis period, such as a hospital or nursing facility. This discussion must be documented. If, after this discussion, the provider believes that an extension of continuous home care is necessary instead of alternative placement, the provider must submit a written request for an extension of continuous care to DHS.

The written request must be sent to Texas Department of Human Services, Long-Term Care Policy, P.O. Box 149030, Mail Code Y-519, Austin, Texas, 78714-9030.

The written request must include:

(i)

documentation of all continuous home care provided during the previous five days;

(ii)

physician's orders;

(iii)

documentation of daily physician care plan oversight;

(iv)

documentation that skilled nursing care was provided as more than half of the care given in a 24-hour period for each of the five days of continuous care;

(v)

the number of days of continuous home care requested for the extension; and

(vi)

documentation of the interdisciplinary team's discussion regarding alternate placement, including why continuous home care must be extended and why temporary alternate placement is not presently warranted.

The Texas Department of Human Services (DHS) may extend continuous home care if it deems it medically necessary. Providers will be notified in writing of the department's decision within eight work hours after the department's receipt of the written request and documentation. The department will fax the response to the provider if the provider includes a fax number with the extension request.

(9)

If DHS denies the request for an extension of continuous home care, the provider will be paid at the routine home care rate or inpatient care rate, if applicable, for subsequent days of care.

(10)

Request for reconsideration. If the provider does not agree with the department's denial of the request for an extension of continuous home care, the provider may request a reconsideration of the decision at the state office level. The written request for reconsideration and all supporting documentation must be submitted to DHS at the address in paragraph (7)(A) of this subsection no later than the tenth calendar day after the provider's receipt of the denial of the request for an extension. DHS's reconsideration will be limited to a review of the documentation submitted. DHS will complete the reconsideration no later than the tenth calendar day after receipt of the request for reconsideration.

Respite care.

Respite care is short-term inpatient care provided to the individual at home only when necessary to relieve the family members or other persons caring for the individual at home.

Respite care may not be reimbursed for more than five consecutive days.

Respite care can be provided by:

a hospice that meets the condition of participation for providing inpatient care directly; or

a hospital or nursing facility that also meets the Medicare standards regarding 24-hour nursing service and patient areas.

Respite care may be provided only on an occasional basis and may not be reimbursed for more than five consecutive days at a time.

Respite care may not be provided when the hospice patient is a nursing home resident.

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 February 1, 2001.

TRD-200100674

For further information, please call: (512) 438-3108

Subchapter F. REIMBURSEMENT

40 TAC §30.60, §30.62

The new sections implement the Human Resources Code, §§22.001- 22.030 and §§32.001-32.042.

§30.60.Medicaid Hospice Payments and Limitations.

Medicaid hospice per diem rates. For each day that an individual is under the care of a hospice, the hospice will be reimbursed an amount applicable to the type and intensity of the services furnished to the individual for that day. For continuous home care, the amount of payment is determined based on the number of hours of continuous care furnished to the beneficiary on that day.

Routine home care. The hospice will be paid the routine home care rate for each day the recipient is at home, under the care of the hospice, and not receiving continuous home care. This rate is paid without regard to the volume or intensity of routine home care services provided on any given day.

Continuous home care. The hospice will be paid the continuous home care rate when continuous home care is provided. The continuous home care rate is divided by 24 hours in order to arrive at an hourly rate. A minimum of 8 hours must be provided. For every hour or part of an hour of continuous care furnished, the hourly rate will be reimbursed to the hospice up to 24 hours a day. A maximum of five consecutive days are allowed for reimbursement. Additional days may be allowed with approval from the Texas Department of Human Services (DHS).

Inpatient respite care. The hospice will be paid at the inpatient respite care rate for each day on which the beneficiary is in an approved inpatient facility and is receiving respite care. Payment for respite care may be made for a maximum of 5 days at a time including the date of admission but not counting the date of discharge. Payment for the sixth and any subsequent days is to be made at the routine home care rate.

A hospice recipient who receives hospice respite care in a nursing facility and returns home after the respite does not have to be in a Medicaid bed in the nursing facility.

Respite care days are subject to the limitation on total hospice inpatient care days, as outlined in subsection (h) of this section.

If the hospice recipient dies as an inpatient, DHS pays the inpatient rate for the day of death.

General Inpatient Care. Payment is made at the general inpatient rate when general inpatient care is provided.

The Inpatient Care rate is paid for the date of admission and all subsequent inpatient days except day of discharge.

For the day of discharge, DHS pays the routine home care rate.

If the hospice recipient dies as an inpatient, DHS pays the inpatient rate for the day of death.

Inpatient care days are subject to the limitation on total hospice inpatient care days, as outlined in subsection (h) of this section.

Medicaid payments for physician services.

The Medicaid Hospice Program makes payments to the Medicaid hospice provider for hospice physician services according to the customary and reasonable Texas Medicaid physician charges.

The Medicaid Hospice Program does not pay when hospice physician services are provided by physicians who are not on staff with the Medicaid hospice provider or for independent contractors, who are under contract with the hospice.

Payments for non-hospice physician services to Medicaid hospice recipients are made directly to physicians by Medicaid through the National Heritage Insurance Company (NHIC).

The Medicaid hospice provider must include physician services in the hospice plan of care and clinical records and must inform physicians on how to bill for services to hospice recipients.

Medicaid hospice-nursing facility per diem rates. The Medicaid Hospice Program pays the Medicaid hospice provider a hospice-nursing facility rate that is 95% of the Medicaid nursing facility rate for each hospice recipient in a nursing facility. When the hospice-nursing facility rate is paid to the hospice provider, Medicaid vendor payment to the nursing facility is not paid. Room and board services include performance of personal care services, including assistance in the activities of daily living, in socializing activities, administration of medication, maintaining the cleanliness of a resident's room, and supervision and assisting in the use of durable medical equipment and prescribed therapies.

(d)

Medicaid time limitations for DHS hospice payment.

To receive payment of the hospice nursing facility rate, the hospice and nursing facility providers must complete and submit the Texas Index for Level of Effort (TILE) assessment on the hospice recipient or applicant in a nursing facility within 20 days of either or both hospice election or entrance to the nursing facility.

TILE Assessments received after the 20th day will have the stamp-in date as the effective date.

(e)

Medicaid payments on Medicare coinsurance for drugs and biologicals. For Medicare-Medicaid recipients only, the Medicaid Hospice Program pays the Medicaid hospice provider a 5.0% coinsurance on prescription drugs and biologicals, not to exceed $5 per prescription.

(f)

Medicaid payments for Medicare respite coinsurance. For Medicare- Medicaid recipients only, the Medicaid Hospice Program pays the hospice provider a 5.0% coinsurance for each day of respite care for up to five consecutive days of a hospice coinsurance period.

(g)

Third party resources. Medicaid pays only after all third-party resources have been used.

(h)

Medicaid payment limitations for inpatient care. During the 12-month period beginning November 1 of each calendar year and ending October 31 of the following calendar year (the cap year), the aggregate number of inpatient hospice care days must not exceed 20% of the aggregate total number of all hospice care days for the same cap year. This limitation is applied once each year, at the end of the cap year for each Medicaid hospice provider. If it is determined that the inpatient rate should not be paid, any days for which the hospice receives payment at a home care rate are not counted as inpatient days. The limitation is calculated as follows:

The maximum allowable number of inpatient days is calculated by multiplying the total number of days of Medicaid hospice care by 0.2.

If the total number of days of inpatient care furnished to Medicaid hospice patients is less than or equal to the maximum, no adjustment is necessary.

If the total number of days of inpatient care exceeds the maximum allowable number, the limitation is determined by:

calculating a ratio of the maximum allowable days to the number of actual days of inpatient care and multiplying this ratio by the total reimbursement for inpatient care (general inpatient and inpatient respite reimbursement) that was made;

multiplying excess inpatient care days by the routine home care rate;

adding together the amounts calculated in subparagraphs (A) and (B) of this paragraph; and

comparing the amount in subparagraph (C) of this paragraph with interim payments made to the hospice inpatient care during the "cap period."

If the inpatient care maximum has been exceeded, DHS recoups excess payments from subsequent Medicaid hospice provider claims.

§30.62.Medicaid Hospice Claims Processing Requirements.

Requirement for payment. To receive Medicaid hospice payments, an entity must be licensed as a hospice, Medicare certified by the Health Care Financing Administration (HCFA) as a hospice, and Medicaid certified by the Texas Department of Human Services (DHS).

Submittal and forms completion requirements. To receive Medicaid Hospice payments, the provider must submit the following documents to Provider Claims Payment:

Texas Medicaid Hospice Program Recipient Election/Cancellation Notice form;

Texas Medicaid Hospice Program Physician Certification of Terminal Illness form; and

Texas Index for Level of Effort (TILE) Assessment form, if applicable.

Denials. DHS will deny the following provider claims to the Medicaid Hospice Program and/or to other DHS programs:

claims for hospice service days prior to a valid Medicaid Hospice Election Notice and a Physician Certification of Terminal Illness(es);

claims which have been returned to the provider or recipients who have revoked the election of the Medicaid Hospice Program;

claims for recipients who have been denied Medicaid eligibility;

claims for Medicare-Medicaid recipients who are covered by the Medicare Hospice benefit; and

claims by hospice providers whose Medicaid hospice contract has been cancelled.

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 February 1, 2001.

TRD-200100675

For further information, please call: (512) 438-3108

Subchapter G. INSPECTIONS, SURVEYS, AND VISITS

40 TAC §30.70

The new section implements the Human Resources Code, §§22.001- 22.030 and §§32.001-32.042.

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 February 1, 2001.

TRD-200100676

For further information, please call: (512) 438-3108

Subchapter H. ENFORCEMENT

40 TAC §§30.80, 30.82, 30.84

The new sections implement the Human Resources Code, §§22.001- 22.030 and §§32.001-32.042.

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 February 1, 2001.

TRD-200100677

For further information, please call: (512) 438-3108

Subchapter J. MISCELLANEOUS PROVISIONS

40 TAC §30.100

The new section implements the Human Resources Code, §§22.001- 22.030 and §§32.001-32.042.

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 February 1, 2001.

TRD-200100679

For further information, please call: (512) 438-3108

Subchapter A. REQUIREMENTS

40 TAC §§30.101, 30.103, 30.105

The repeals are adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which authorizes 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 repeals implement the Human Resources Code, §§22.001-22.030 and §§32.001-32.042.

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 February 1, 2001.

TRD-200100680

For further information, please call: (512) 438-3108

Subchapter I. MEDICAL REVIEW AND RE-EVALUATION

40 TAC §30.90, §30.92

The Texas Department of Human Services (DHS) adopts new §§30.90 and 30.92 with changes to the proposed text published in the August 4, 2000, issue of the Texas Register (25 TexReg 7331). DHS is simultaneously filing a related adoption in Chapter 30 in this issue of the Texas Register .

Justification for the new sections is to provide more extensive Medicaid contracting rules for the Medicaid Hospice program, which has greatly expanded. Hospice providers need to be aware of their contractual responsibilities when contracting with DHS as Medicaid hospice providers. Providers are required to comply with 42 Code of Federal Regulations Chapter 418 Hospice Care, Health Care Financing Administration Medicaid Guidelines and state licensing rules.

The department received comments from the following organizations: Hospice of El Paso, Texas & New Mexico Hospice Organization, Nurses of Hospice New Braunfels, Hospice of Deep East Texas and Home Hospice. A summary of the comments and the department's responses follows.

Comment: Federal regulations require that the room and board payment to nursing facilities (NF) pass through the hospice provider. Due to multiple payment classifications in the TILE system, the addition of staffing enhancement incentives and the manual payment system for room and board, delayed or reduced payments have become a serious problem. Being required to complete the TILE form is financially burdensome and increases the amount of time nurses have to spend away from the patients who need them. Rules should allow the nursing facility staff to complete the TILE forms, rather than the hospice provider, and submit the bill for payment to be made to the hospice. The hospice would then give the money to the NF, fulfilling the intent of the federal regulations which state that the room and board payment should be paid to the hospice rather than the NF. Rules should allow the NF to be paid room and board directly by the department.

Response: The department made changes to the Subchapter I Medical Review and Evaluation whereby the nursing facility and hospice nursing staff will complete and sign the Client Assessment, Review and Evaluation (CARE) form at the point a hospice recipient enters the NF or a NF resident elects hospice, every six months, and as necessary. The NF will electronically submit the CARE form. Room and board payments, which include the enhanced rate, will be paid to the hospice provider. The hospice is required by federal law to pass the room and board rate onto the nursing facility.

New §§30.90 and 30.92 are adopted with changes to reflect that hospice and nursing facility nurses must complete and electronically submit the CARE Form 3652, TILE assessment. Section 30.92 identifies the purpose codes to be utilized when a nursing facility resident elects hospice, every six months thereafter and allows for retroactive payments for up to one year from the end of the covered time. These changes are based on input from public comment, a series of meetings, and a public hearing. Both providers will complete the assessment due to the responsibility of each for the care of the recipient in the nursing facility. Electronic submission of Form 3652 by the nursing facility will assist providers with prompt room and board payments, as long as, the hospice eligibility forms are submitted to the department on a timely basis. These rules are consistent with the Nursing Facility Utilization rules that will be promulgated in March 2001.

Sections 30.14, 30.60, and 30.62, which are simultaneously adopted in this issue of the Texas Register , have been changed to state that the hospice provider must retain copies of or retain and submit the Texas Index for Level of Effort (TILE) assessment. The hospice-nursing facility assessment will no longer be utilized by providers after June 1, 2001. This language is consistent with Subchapter I, Medical Review and Re-evaluation.

Comment: The Utilization Review rules require that the nurse who completes the TILE form attend TILE training. The provider is not reimbursed for attending this training, which becomes a cash cost to a hospice. We do not budget for the cost of time and travel for nurses to attend such a course. What would happen if a nurse, who is scheduled to attend this training, is called to an emergency with a dying patient and their family?

Response: The rule will remain as written. TILE training is free to the providers. The department conferred with HCFA on this issue. Staff must be aware and agree with the information provided on the CARE form, since the TILE dictates the payment to the facility. Staff must be trained on TILE to ensure that the nursing facility receives the appropriate rate. If staff are unable to attend the training, they can reschedule for the next training. The department extended the deadline for the TILE training to June 1, 2001 to allow providers more time for training.

The new sections implement the Human Resources Code, §§22.001- 22.030 and §§32.001-32.042.

§30.90.Utilization Review and Control Activities Performed by Texas Health and Human Services Commission (HHSC) Utilization Review (UR) Department.

According to federal regulations and State Plan requirements, HHSC UR staff will conduct required on-site activities related to utilization review and control in nursing facilities receiving Medicaid reimbursement through the hospice provider for hospice services.

Hospice provider staff must cooperate with HHSC UR staff during on-site inspections regarding personal contact with hospice recipients and the review of their clinical records.

Subchapter I Medical Review and Evaluation will go into effect on June 1, 2001.

§30.92.Texas Index for Level of Effort (TILE) Assessments.

Recipient assessment. Hospice and Nursing Facility nurse assessors assess recipients for TILE determination by completing the Client Assessment Review and Evaluation (CARE) form. These assessments establish TILE classifications as described in paragraphs (1)-(4) of this subsection. Effective June 1, 2001, nurse assessors must have completed a Health and Human Services Commission (HHSC) TILE training course and must be registered with the National Heritage Insurance Company (NHIC).

Admissions assessments. The providers must complete and submit the CARE form on the hospice recipient or applicant in a nursing facility within 20 days of the point of hospice election. The assessment period is four weeks prior to the assessment date. Assessments received after the 20th day will have as the effective date the stamp-in date. The nursing facility receives an additional off cycle assessment to utilize when the applicant already resides in the nursing facility. This type of admission to hospice would be coded as an off cycle assessment.

Continued stay reviews. The off cycle assessment must be submitted on a nursing facility (NF) resident who elects the Medicaid hospice benefit, at the point of election and every 180 days thereafter. The following provisions apply:

The assessment sets a new schedule for submission of forms, unless the applicant has an admission MN determination in effect.

The hospice and NF providers must complete and submit the CARE form. The assessment may be submitted up to 45 days prior to the 180th day. Assessments received earlier than the 135th day will be rejected.

The assessment will be effective the 181st day, the day after the current assessment expires.

Assessments received by the Texas Department of Human Services (DHS) Provider Claims Payment Unit after the current assessment expires will be effective the stamped date of receipt.

Off-cycle assessment. If a recipient's medical condition deteriorates to the extent that he qualifies for a different TILE, the providers may submit an off-cycle assessment. Only one off-cycle assessment is permitted per recipient during a six month current assessment period. An additional off cycle assessment is permitted for admitting a recipient to hospice.

The off-cycle assessment will be effective the date received (stamp-in date) by DHS, thereby changing the review cycle.

The providers must complete and submit another assessment every 180 days thereafter, as outlined under paragraph (2) of this subsection.

Error correction. A new assessment may be submitted for the purpose of correcting clinical errors previously made in the assessment portion of the form. The submission of the correction does not change the schedule for the submission of forms or necessarily change the TILE group. HHSC will not accept requests for changes submitted:

over 60 days from the date of assessment on the incorrect form; or

after notification of an on-site review date.

A provider may submit a request for retroactive payment, for up to one year from the end of the covered time period, in the following instances:

when a provider provides care for a recipient for a period of time not covered by an effective MN determination at admission or by assessment CARE forms between reviews; or

if a recipient is found to be otherwise eligible for Medicaid for the three months prior to the month of his date of application for Medicaid assistance.

Review and appeal of case-mix assessments. HHSC nurse reviewers conduct desk reviews and on-site reviews of CARE forms to verify TILE information and determine that the recipient's status is accurately reflected. Forms expired over 12 months will not be reviewed.

HHSC nurse reviewers notify nursing facilities and hospice providers in advance of routine onsite visits. Notice is given of recipients whose medical records will be reviewed, the time period covered by the review, the parts of the records of all hospice recipients necessary for review, and the accommodations necessary for the review. Nursing facilities and hospice providers receive a minimum of two work days notice prior to a routine visit. Less than two days notice may be given to providers whose last two on-site visits resulted in corrective action. No notice is required for visits for investigation of TILE issues, including suspected fraud, or for visits requested by another state agency. If nurse reviewers are prevented from conducting a review based on a provider's actions, TILE rates on the recipients chosen for review will be lowered to the default TILE rate until the review can be accomplished. Payments will not be reversed.

When an HHSC nurse reviewer determines that the TILE classification is not substantiated and/or does not accurately reflect the recipient's status, the reviewer will discuss the error and give the provider the opportunity to submit additional documentation to support the provider's assessment. Documentation may be presented at any time during the review process or the exit conference and adjustments may be made. An exit conference is held with the nursing facility and hospice provider staff following the review. The provider is given formal notification of all TILE changes within 15 working days of the exit conference.

DHS recoups funds previously paid to the provider under incorrect TILE classification. DHS will pay the hospice provider any increase due to a change in TILE classification.

The change in TILE classification and per diem rate is effective retroactively to the "effective date" of the assessment reviewed.

If the HHSC nurse reviewer and the hospice nurse assessor are unable to agree about an assessment, the provider may submit a written request for a reconsideration by a state office nurse specialist.

The request for the reconsideration and all documentation supporting the requested changes must be received by the state office nurse specialist within 15 days of receipt of formal notification of TILE changes.

The state office nurse specialist will review all material submitted by the provider and all information collected during the utilization review (UR).

The TILE classification and associated per diem rate specified by the HHSC nurse reviewer remain in effect during the reconsideration period.

If the reconsideration establishes that HHSC has changed a TILE classification in error, HHSC corrects the error retroactively.

If the provider disagrees with the findings of the state office nurse specialist, the provider may initiate a formal appeal, as stated in Chapter 79, Subchapter Q of this title (relating to Contract Appeals Process), by submitting a request to the Director, Hearings Department, Mail Code W-613, Texas Department of Human Services, P.O. Box 149030, Austin, Texas 78714-9030 within 15 days of receipt of notification of the results of the reconsideration.

The TILE classification and associated per diem specified by the state office reconsideration nurse supervisor remain in effect during the formal contract appeal.

If the informal review or contract appeal process establishes that HHSC changed a TILE classification in error, HHSC corrects the error retroactively.

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 February 1, 2001.

TRD-200100678

Effective date: June 1, 2001

For further information, please call: (512) 438-3108

Chapter 43. PERSONAL ATTENDANT SERVICES PROGRAM

40 TAC §§43.1 - 43.9

The Texas Department of Human Services (DHS) adopts the repeal of Chapter 43, Personal Attendant Services Program, §§43.1-43.9, without changes to the proposed text in the October 13, 2000, issue of the Texas Register (25 TexReg 10309). The text will not be republished.

Justification for the adoption is to create the new Consumer- Managed Personal Assistance Services (CMPAS) Program that will provide long-term consumer-managed personal assistance services to persons with disabilities who require such services to maintain independence in the community. Persons in the program will direct their own care by participating in decisions about selecting, training, and supervising their personal assistants. The Client-Managed Attendant Services (CMAS) Program is being combined with the Personal Attendant Services (PAS) Program, transferred to DHS on September 1, 1999, and language from DHS's Chapter 49, Contracting for Community Care Services. The PAS program and the CMAS program services provide identical services and have similar eligibility requirements. Hence, it is more efficient for the department and the consumers who we serve to combine the programs. This will help consumers access services and will eliminate unnecessary administration for the department.

The department received no comments regarding the proposal.

The repeals are adopted under the Human Resources Code, Title 2, Chapter 22, which authorizes the department to administer public assistance programs.

The repeals implement the Human Resources Code, §§22.001- 22.030.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 30, 2001.

TRD-200100565

Proposal publication date: October 13, 2000

For further information, please call: (512) 438-3108

Chapter 48. COMMUNITY CARE FOR AGED AND DISABLED

Subchapter E. CLIENT-MANAGED ATTENDANT SERVICES

The Texas Department of Human Services (DHS) adopts the repeal of §§48.2601-48.2616 and new §§48.2600-48.2619. The repeals and new §§48.2600, 48.2603, 48.2608, 48.2610, 48.2612, 48.2613, and 48.2615-48.2619 are adopted without changes to the proposed text in the October 13, 2000, issue of the Texas Register (25 TexReg 10310) and will not be republished. Sections 48.2601, 48.2602, 48.2604-48.2607, 48.2609, 48.2611, and 48.2614 are adopted with changes to the proposed text.

Justification for the repeals and new sections is to create the new Consumer-Managed Personal Assistance Services (CMPAS) Program that will provide long-term consumer-managed personal assistance services to persons with disabilities who require such services to maintain independence in the community. Persons in the program will direct their own care by participating in decisions about selecting, training, and supervising their personal assistants. The Client- Managed Attendant Services Program is being combined with the Personal Attendant Services Program, transferred to DHS on September 1, 1999, and language from DHS's Chapter 49, Contracting for Community Care Services.

In a related action, DHS adopts the repeal of Chapter 43, Personal Attendant Services Program, in this issue of the Texas Register .

The department received comments regarding creation of the Consumer-Managed Personal Assistance (CMPAS) Program Rules. A summary of the comments and the department's responses follow.

Comment: Regarding §48.2601(3), §48.2601(7), and §48.2601(8), since the client hires and fires the attendant and is totally responsible for the services delivered under the block grant and the voucher models, the program should be named "Consumer Managed Personal Attendant Services (CMPAS) Program." Otherwise, it could be confused with the Personal Assistance Services (PAS) category of licensure under the Home and Community Support Services Agency (HCSSA) law/regulations. It is important that all understand that those two models are not performed under the HCSSA license. The word "attendant" is also a common element in the two programs that have been combined under these new rules, and it should be retained. The word "attendant" should be substituted for "assistant" where applicable throughout the rules.

Response: DHS did not change to the suggested language. In developing the proposed rules, the agency was aware that various terms have been used to describe persons who perform the function of personal assistance. Personal assistance was chosen because it is a broader term which encompasses the array of functions which these individuals perform.

Comment: Regarding §§48.2601(1) and 48.2606(1), replace the words "hiring" and "hires" with "selecting" and "selects." The terms "select" and "dismiss" should be utilized in the agency model descriptions, as opposed to "hire" and "fire" in the block grant and voucher models. This helps to keeps it clear that the agency is the employer in the agency model, and the client is the employer in the other models.

Response: DHS changed the proposed language. For the agency model, the word "hiring" will be changed to "selecting." We agree that this better describes the function which the consumer is performing.

Comment: Regarding §48.2601(2) and §48.2611(5)(D), Block grant model, replace the word "dismiss" with "firing". The contractor should not be responsible for providing back-up attendants in the block grant model. The contractor should only be responsible for providing back-up in the agency model. If the client chooses to purchase back-up services from the contractor or any other HCSSA, they should be able to use their funds to do so. However, the client should have to negotiate that rate with the agency(ies). In the event of back-up, the agency would be the employer of those attendants.

Response: DHS did not change the proposed language. "Dismiss" adequately describes the personnel action being taken by the consumer. Since its inception, the block grant model has always required the provider to provide back-up services. This is one of the important differences between the Vendor Fiscal Intermediary Model and the block grant model.

Comment: Regarding §48.2601(4), consumer, the second sentence should either be deleted since it is redundant or should read "He retains control over the hiring or selection, the management, and the firing or dismissal of an individual providing services, based upon the model chosen."

Response: DHS changed the proposed language to read "He retains control over the selection." This language includes the function which all three payment models follow.

Comment: Regarding §48.2601(5), contractor, should read "A legal entity which has entered into a ..." Once again, the only services the contractor performs that come under the HCSSA license are provision of direct services in the agency model, and back-up services for the block grant and voucher models if the client chooses to purchase them through the contractor's HCSSA. In the latter case, the back-up services would then fall under the agency model. The qualifications of the contractor are stated correctly in §48.2603 and do not need to be stated here.

Response: DHS changed the proposed language as suggested. This more accurately reflects the broad function which all contractors perform.

Comment: Regarding §48.2601(6), fiscal agent, does the contractor have the option of being a fiscal agent? It appears that in §48.2601(5) they have to offer all three options.

Response: The contractor in the agency model has the option to be a fiscal agent, but is not required to perform this function.

Comment: Regarding §48.2601(8), the VFI handles the administrative functions for all personal attendants whether or not they are primary or substitute. To state this here could be construed to mean that the VFI provides substitute (back-up) attendants and it must be clear that they are in no way responsible for that function. Also, you could add after the last sentence, "The consumer is responsible for obtaining all back-up services."

Response: DHS changed the proposed language to read "The payment option in which the consumer controls the recruitment hiring, management, and firing of his personal assistant and substitute (back- up) personal assistants." This more accurately reflects the consumer function of providing his/her own substitute back-up care in the VFI model.

Comment: Regarding §48.2602(a)(4), it should read "Delegated health-related tasks--Health related tasks require a physician's order and must be delegated by a physician or a registered nurse in accordance with their respective practice acts. Physician delegation must be specific to the client, attendant, and tasks. Tasks include but are not limited to..." In the agency model, physician delegation is allowed under the HCSSA PAS category and therefore these rules should not require an RN to be involved. On the other hand, although physician delegation is most likely to occur in the voucher and block grant models, RN delegation should be allowed.

Another comment was received on the same subsection suggesting the following wording: "Health related tasks requiring physician's orders authorizing the consumer's specific personal assistant(s) to perform specific tasks delegated by the physician and/or authorizing the Registered Nurse to delegate specific tasks include, but are not limited to ..."

Response: DHS changed the proposed language as suggested in the first paragraph above. This language clearly states the intent of allowing physician and/or nurse delegation based on physician's orders.

Comment: Regarding §48.2602(a)(4), care for a decubitus stage I may only require gentle cleansing (such as routine shower or bath) and pressure relieving methods. As the rule stands, any type of care for a stage I (in which the skin may only have a slight discoloration without any break) would require a physician's order and physician delegation. A competent client who directs his or her own care should be allowed an attendant's assistance with this type of care without a physician's order or delegation. I recommend that this rule be modified to ensure that this basic type of skin care can be provided without specific physician's orders and delegation.

Response: DHS changed the proposed language in §48.2602(a)(4)(D). The original intent was to maintain stage II only on this list.

Comment: Regarding §48.2602(b)(1), it should read "unless delegated by a licensed physician or registered nurse..."

Response: DHS changed the proposed language as suggested above. This clearly allows nurse delegation as an option.

Comment: Regarding §48.2603, we support the language as stated since it allows the contractor to perform the non-direct care services (program eligibility, fiscal agent, consumer training, etc.) outside of the HCSSA license; however, it assures the contractor does have these services available should the client choose the agency model or desire to purchase back up services from that agency.

Response: No change is indicated.

Comment: Regarding §48.2604(7), change "plan of care" to "service plan."

Response: DHS changed the proposed language as suggested above. This is the better term to use for the CMPAS program.

Comment: Regarding §48.2605(1), is the contractor required to sub-contract for the VFI services if they do not offer it themselves?

Response: The contractor is not required to sub-contract for VFI services. Consumers have an option to work with another VFI contractor if their contractor does not offer this service.

Comment: Regarding §48.2605(6), it should read "maintain a copy of physician's orders, identification of the delegating physician or RN, and names of attendants and specific tasks, as applicable, in the consumer's file when health-related services specified in 48.2602(a)(4) of this title are performed under the VFI or Block Grant options." This should be the extent to which the agency is responsible under either one of these models, as the services are not performed under the HCSSA license in these instances. If the health related services are provided under the agency model, these will be performed in accordance with the HCSSA licensure rules and the HCSSA will be responsible for compliance.

Response: DHS changed the proposed language as suggested above with the exception of specifically targeting the VFI and Block Grant option. This wording more clearly expresses intent; however, all models need to follow this rule.

Comment: Regarding §48.2606, the title of this is "responsibility under the agency model;" however, (1) also speaks to the block grant model. Subsections should be limited to discussing the agency model only.

Response: DHS did not change the proposed language. This responsibility is listed in both the agency and block grant subsection. Because it is not a responsibility under all three models, it can not be included in section §48.2605.

Comment: Regarding §48.2606(3)(A), the agency must be in compliance with the HCSSA license rules under the Agency Model. We would like a statement from the Department's HCSSA licensing department that the client, rather than the agency, is responsible for training and determining competence of the attendant with regard to tasks to be performed, and that the client or their designee is recognized as the supervisor for purposes of HCSSA licensure.

Response: Under the agency model, the agency, not the consumer is the employer of record and is responsible for initial orientation and determination of competence of personal assistants. HCSSA was consulted about the VFI and block grant model. They have verified that when the consumer is the employee of record, the services do not fall under HCSSA licensure.

Comment: Regarding §48.2606(3)(K), it should read "Provide all attendant services under the Personal Assistance Services category of their Home and Community Support Services Agency license." This has not been stated anywhere, and since this is the only model that should be subject to the license, it should be stated here. There is then no need to specifically break out the section on health-related tasks. The agency should be allowed to utilize physician or RN delegation, as is currently the case under the HCSSA license.

Response: The HCSSA license is noted in the §48.2601(3). In §48.2606(3)(K) DHS clarified that nurse supervision is required when tasks are delegated by a registered nurse.

Comment: Regarding §48.2607(1) and §48.2611(4), the sections state that the amount of funds retained by the contractor must not exceed the amount retained under the VFI model; however, §48.2607(2) states that the contractor is responsible for maintaining a pool of attendants for recruitment and back-up under the block grant model. This is quite expensive for the contractor to do. The limitation on the amount retained by the contractor in one model should not be based upon another option. It seems that the client should have the same responsibility under the VFI and block grant models with regard to recruiting, hiring and firing attendants, and obtaining their own back-up attendant. The client should have the capability of obtaining backup from the contractor's HCSSA or another HCSSA of their choice, or from their own personal back-up list just as any other private client would do. The client should be able to negotiate their price to obtain back-up attendant through agencies. The only difference between the VFI and the Block Grant should be that the client would handle all payroll functions under the block grant model. The contractor should be able to process a bill from an agency under the VFI model and reimburse the client for expenses for agency-provided back-up under the Block Grant model.

Response: DHS changed the proposed language to indicate that under the block grant model, the funds retained by the contractor will be negotiated with the consumer. This will allow the consumer a clear choice between the block grant and VFI model. It is understood that the extra expenses of providing back-up care needs to be taken into account.

Comment: Regarding §48.2609(4), it should read: "Hiring and firing the personal attendant under the Block Grant model and VFI option, and selecting and dismissing the attendant under the Agency Model."

Response: DHS changed the proposed language to "selecting and dismissing" to indicate the common role under all three payment models.

Comment: Regarding §48.2609(8), it should read: "In the VFI option, submitting."

Response: DHS did not change proposed language. This is a consumer responsibility under all payment models.

Comment: Regarding §48.2609(12), it should read "In the VFI option or Block Grant model, obtaining."

Response: DHS did not change proposed language. This is a consumer responsibility under all payment models.

Comment: Regarding §48.2609(12)(C), replace "patient" with "consumer."

Response: DHS replaced proposed language as suggested above.

Comment: Regarding §48.2609(14), include "changes in the consumer's physical condition which may effect the need for services."

Response: DHS replaced proposed language as suggested above.

Comment: Regarding §48.2611(3), replace "selection" with "hiring," and "dismissal" with "firing". The terms "long-term care" and "respite" have not been used elsewhere--only the term "personal assistance." Why are they included here?

Response: DHS replaced "selection" with "hiring" and deleted the terms "long term care" and "respite."

In addition, DHS corrected a reference to §48.6098 in §48.2613 and added the word "to" in §48.2614 for clarification.

40 TAC §§48.2600 - 48.2619

The new sections are adopted under the Human Resources Code, Title 2, Chapter 22, which authorizes the department to administer public assistance programs.

The new sections implement the Human Resources Code, §§22.001- 22.030.

§48.2601.Definitions.

The following words and terms, when used in this subchapter, have the following meanings unless the context clearly indicates otherwise:

Agency model--The payment option in which people with disabilities control the selecting, training, management, and dismissal of their personal assistants. A contractor controls the recruitment of personal assistants and back-up personal assistants and performs employer- related administrative functions. These administrative functions include payroll functions and filing tax-related reports of personal assistants. The contractor is the employer of record.

Block grant model--The payment option in which the consumer controls the recruitment, hiring, management, and dismissal of his personal assistants. The consumer handles employer-related administrative functions that include payroll functions for their personal assistants and substitute (back-up) personal assistants and filing tax-related reports of personal assistants. The consumer is the employer of record. The contractor is responsible for providing substitute attendants and reimbursing the consumer for wages and employment taxes paid to the personal assistants for authorized services.

Consumer-Managed Personal Assistance Services (CMPAS)--Personal assistant services provided by agencies licensed as Home and Community Support Services Agencies (HCSSAs) under the category of Personal Assistance Services license. Consumers in this program are mentally competent, physically disabled adults who are willing to supervise their personal assistant or who delegate someone to supervise the personal assistant. This program is unique in that it offers three payment options for the delivery of personal assistance services: agency model, block grant model, and vendor fiscal intermediary (VFI) model. Payment options vary based on the way a personal assistant is paid and the employer of record. The payment option determines the amount of control the consumer has over his services. It also impacts the flexibility of the service delivery. Consumers or contractors have different responsibilities in each option.

Consumer--An eligible recipient of CMPAS services. The consumer manages his personal assistant in all three payment options. He retains control over the selection, management, and dismissal of an individual providing personal assistance.

Contractor--A legal entity that has entered into a contractual agreement with the Texas Department of Human Services (DHS) to deliver CMPAS in accordance with established policies. The contractor determines the consumer's eligibility for services, authorizes the consumer's service levels within program limits, and offers the consumer a choice of the three payment options in CMPAS.

Fiscal agent--A CMPAS contractor who agrees to participate in the vendor fiscal intermediary model. The fiscal agent enters into a contractual agreement with DHS to handle payroll; prepare and file tax-related forms and reports for workers' compensation, state and federal unemployment, Medicare, and Federal Insurance Contributions Act (FICA); and reimburse consumers for employer-related expenses.

Personal assistant--A person who is employed by the consumer or contractor to provide personal assistance through CMPAS.

Vendor fiscal intermediary model (VFI)--The payment option in which the consumer controls the recruitment, hiring, management, and firing of his personal assistants and substitute (back-up) personal assistants. A fiscal agent, the contractor, handles employer-related administrative functions that include payroll for the personal assistants and substitute (back-up) personal assistants and filing tax-related reports of personal assistants. The consumer is the employer of record.

§48.2602.Program Services.

Eligible consumers are entitled to the following personal assistance services.

Escort. Escort services include, but are not limited to, arranging for transportation or accompanying the consumer on trips such as to obtain health care services, household items, or wheelchair repairs, and to other locations in the community. The consumer is responsible for the cost of transportation.

Home management. Home management services include, but are not limited to, assistance with activities related to housekeeping that are essential to the consumer's health and comfort:

storing purchased items; and

(F)

washing dishes.

Personal care. Personal care services include, but are not limited to, assistance with activities related to the care of the consumer's physical health:

bathing;

caring for routine hair and skin needs;

dressing and undressing;

(H)

assistance with self-administered medications including suppositories;

(I)

toileting;

(J)

transfer and ambulation;

(K)

changing an external catheter;

(L)

using external manual manipulation to implement a bowel program;

(M)

providing personal care related to menstruation;

(N)

inserting and removing a tampon;

(O)

providing ileostomy care (removing and disposing old bag and reapplying the new bag); and

(P)

providing colostomy care (removing and disposing old bag and reapplying the new bag).

Delegated health-related tasks. Health-related tasks require a physician's order and must be delegated by a physician or a registered nurse in accordance with their respective practice acts. Physician or a registered nurse delegation must be specific to the client, attendant, and tasks. In the agency model only, personal assistants or back-up assistants performing registered nurse delegated health- related tasks must be supervised by a registered nurse as specified in §48.2606(3)(K) of this title (relating to Additional Contractor Responsibilities Under the Agency Model). Tasks include, but are not limited to:

internal catheter care, including insertion, irrigation, and changing;

administration of medications;

bowel program, including cleansing enema, and internal digital stimulation;

decubitus care, stage II; and

(E)

changing sterile dressings.

The following services may not be authorized for reimbursement through the Consumer-Managed Personal Assistance Services (CMPAS) program:

tasks that must be provided by licensed nurses or therapists unless delegated by a licensed physician or registered nurse; and

the purchase of additional services and/or supplemental pay that result from agreements between the personal assistant and the consumer.

§48.2604.Consumer Eligibility Criteria.

To be eligible for participation in the Consumer-Managed Personal Assistance Services (CMPAS) program, the applicant must:

be age 18 or older;

have a physician's statement that the applicant has a physical disability. The physician's statement must describe the disability and state whether the disability is permanent or is expected to last for at least six months from the date eligibility is determined. If the disability is not permanent, the physician's statement must specify the expected duration of the disability;

not receive Primary Home Care, Family Care, Residential Care (supervised living services and emergency care), Adult Foster Care, Frail Elderly Program, Medicaid Waiver Program services, Special Services To Persons With Disabilities - attendant services while receiving CMPAS, or attendant services through the In-Home Family Support Program;

need assistance with at least one personal care task for at least five hours per week;

be able and willing to self-direct personal assistant care or have a relative or friend who is able and willing to be responsible for directing the care without compensation;

reside in one of the contract areas established as part of a procurement for CMPAS;

have a service plan for authorized CMPAS of 52 hours per week or fewer. In addition, all Community Care for the Aged and Disabled services added to CMPAS must cost less than the weighted average cost for nursing home care; and

have a funded service slot, based on availability of funds appropriated by the Texas Legislature to the CMPAS program.

§48.2605.Contractor Responsibilities Under Agency, Block Grant, and Vendor Fiscal Intermediary (VFI) Models.

After interviewing the applicant, the contractor must:

provide personal assistance services to a specific number of eligible consumers in a specific geographic area as outlined in their contract with the Texas Department of Human Services (DHS). Contractors may provide the vendor fiscal intermediary (VFI) model, or refer consumers for that model to a VFI.

employ an assessor with knowledge, understanding, and/or training in independent living concepts and at least one year of experience working with persons with physical disabilities. The assessor performs the following functions:

determines service eligibility. The applicant must meet each criterion as specified in §48.2604 of this title (relating to Consumer Eligibility Criteria);

enables the applicant to make an informed choice by discussing alternatives in public programs that offer personal assistance services;

assesses and reassesses service needs annually, face-to-face, or by telephone, by using DHS Client Needs Assessment Questionnaire and Task/Hour Guide form; and

develops a service plan that:

(i)

includes the number of hours and tasks authorized and negotiated between the applicant and the contractor. Up to 10 hours per week may be authorized for tasks related to care of a dependent child under the age of 12; and

(ii)

is signed by the applicant. If the applicant does not agree with the assessment of the service level and service plan, the issue is referred to the contractor's supervisory staff for resolution. If the outcome is unsatisfactory to both parties, a final determination is made by designated DHS staff within 30 days of notification. If the applicant does not agree with the determination of service level and service plan approved by the contractor's supervisory staff, the contractor must not delay initiation of services. Contractor staff, with the consumer's consent, may initiate services according to their assessment of the service level required and notify the designated DHS staff of the consumer's disagreement with the service level.

place the applicant on an interest list if the eligible applicant cannot be served because the contractor is operating at full capacity. Full capacity is reached when all funds appropriated to the CMPAS program by the Texas Legislature have been allocated to the contractor by DHS and are already budgeted to be spend on existing clients. The contractor must:

provide CMPAS services as space becomes available to two people from the CMPAS interest list and one person from the PAS waiting list in chronological order until all names are removed from the PAS interest list;

contact the applicant annually to determine if he is still interested in receiving services and to inform him of his place on the interest list; and

provide the interest list to the regional staff monthly. Regional staff places each applicant's name in the community care interest list system. As providers serve people from the interest list, regional staff update the interest list. In regions with more than one contractor, regional staff maintain the interest list, which combines the information from each contractor's interest list. As openings occur, regional staff contact consumers and give them a choice among providers.

determine the consumer's copayment annually or upon change in consumer's income level. The contractor must notify the consumer of the need to follow copayment procedures to retain eligibility. Consumers are required to enter into copayment agreements based upon non-excluded monthly net income less allowable deductions. Computation of copayment amounts is outlined in §48.2614 of this title (relating to Consumer Copayment).

offer the applicant a choice between the following three methods of paying the personal assistant:

the contractor may pay the personal assistant's salary directly as specified in the agency model §48.2606 of this title (relating to Additional Contractor Responsibilities under the Agency Model) and §48.2610 of this title (relating to Additional Consumer Responsibilities under the Agency Model); or

the consumer may pay the personal assistant's salary from a block grant option as specified in §48.2607 of this title (relating to Additional Contractor Responsibilities under the Block Grant Model) and §48.2611 of this title (relating to Additional Consumer Responsibilities under the Agency Model). Consumers receiving Medicaid or other services where eligibility may be wholly or partially based upon income are not allowed to choose this option; or

the consumer may choose the VFI option as specified in §48.2608 of this title (relating to Additional Contractor Responsibilities under the VFI Model) and §48.2612 of this title (relating to Additional Consumer Responsibilities under the VFI Model).

verify that there are standing physician's orders in accordance with the Texas Medical Practices Act and all related state and federal statutes and regulations if the personal assistant(s) provides the consumer any of the health-related services specified in §48.2602(a)(4) of this title (relating to Program Services). The contractor must maintain a copy of the standing physician's orders, identification of the delegating physician or registered nurse, and names of attendants and specific tasks, as applicable, in the consumer's file when health-related services specified in §48.2602(a)(4) of this title (relating to Program Services) are performed.

re-assess and assist consumers when there is a change in consumer status. In some instances, personal assistant care will be insufficient. In this case, the consumer or contractor must request an evaluation of his needs. Based on the re-reassessment, services may be increased if appropriate, or terminated, if the additional tasks or hours exceed the cost ceiling for the program. Before services are terminated, the contractor must notify DHS following the procedures outlined in §48.6098 (a)-(d) of this title (relating to Applicant and Consumer Rights and Responsibilities in Agency, Block Grant and Vendor Fiscal Intermediary Models. Contractor staff must be aware of the availability and eligibility criteria for other services available in the community and develop contingency plans for consumers whose physical condition or environment deteriorates significantly.

train consumers in skills needed to select, instruct, and supervise personal assistants, preparation of personal assistant timesheets, and their obligations to the Internal Revenue Service in the block grant and VFI models.

(9)

initiate services as quickly as possible if the contractor is not at full capacity and an applicant is determined to be at risk. If the at-risk applicant meets all other eligibility criteria, a physician's verbal statement of the consumer's physical disability is adequate for up to 30 days. For services to continue beyond 30 days, the contractor must possess a written physician's statement that verifies the consumer's disability and the date of the verbal statement. To initiate services under these circumstances, the contractor may use personal assistants of their choice. If the contractor is at full capacity when the application is received, the contractor must make a referral to other community resources. The consumer is allowed to interview permanent personal assistants after services have been initiated.

(10)

send a letter to all consumers and personal assistants giving them the effective contract termination date within 10 days of contractor termination notification. The letter must also provide the name of the new contractor, procedures to transfer employment records to the new contractor, and a statement of the intent to effect a smooth transition with as little disruption in service as possible. The contractor must provide the new contractor with the names, addresses, and telephone numbers of consumers and personal assistants within ten days of notification of loss of contract. For each consumer, the contractor must also provide a copy of the current DHS Authorization for Community Care Services and Community Care Intake forms and copies of all documentation necessary for the consumer to participate in this program.

(11)

comply with the rules in Chapter 49 of this title (relating to Contracting for Community Care Services).

(12)

review with the consumer and provide a copy of the DHS Community Care for the Aged and Disabled Client's Rights and Responsibilities at initial assessment and reassessment.

(13)

comply with §49.13(a)-(d) of this title (relating to Client Rights and Responsibilities) regarding consumer's rights and responsibilities and complaint procedures.

(14)

notify the ineligible applicant in writing using DHS form Notification of Community Care Services within three calendar days of the date of the decision.

(15)

notify the consumer and the department of implementing any suspension reduction, or termination of services or increase in copayment at least 12 days before the effective date of the decision in accordance with §48.2613 of this title (relating to Suspension and Termination of Services.

(16)

instruct consumers and personal assistants that personal assistants should provide only those tasks and those hours authorized on the DHS form Authorization for Community Care Services; unless the consumer privately pays for additional hours;

(17)

instruct consumers to complete the timesheet as required.

(18)

assure that family members or relatives employed as personal assistants and providing additional or non-covered services as informal caregivers meet all employment qualifications of the home- health agency and is not disqualified. A family member is disqualified if the applicant or participant does not want the family member as the paid contractor, there is evidence that the family member has abused or exploited the applicant/ participant; or there is evidence that the family member has not delivered services in accordance with the personnel requirements of the contractor.

(19)

receive and process personal assistant timesheets.

(20)

prepare payroll and distribute checks to appropriate parties.

(21)

complete tax form and reports.

§48.2606.Additional Contractor Responsibilities Under the Agency Model.

In addition to the responsibilities listed in §48.2605 of this title (relating to Contractor Responsibilities Under Agency, Block Grant and Vendor Fiscal Intermediary Models), contractors in the agency model:

must maintain a pool of substitute personal assistants to use as substitutes and as a referral pool for consumers who do not choose the VFI option. Substitutes provide emergency back-up personal assistant capability upon request of the consumer. In the agency model the contractor is the employer of substitute personal assistants it provides. When a personal assistant's employment is terminated, replacement personal assistants are supervised by the contractor until the consumer selects another personal assistant.

may hire any personal assistant who meets licensure. Prospective personal assistants are referred to consumers of the program until a satisfactory match is achieved. In the event the consumer delays hiring a personal assistant for more than seven calendar days after eligibility has been determined, the person conducting the assessment must confer with the consumer to identify the reasons for failure to hire a personal assistant and to provide training when necessary to enable the applicant or consumer to choose a personal assistant.

are the employers of record for the personal assistant in the agency model. The contractor must:

be responsible for the initial orientation of personal assistants for consumers who participate in the agency model. The personal assistant is notified of his rights and responsibilities as part of this training. Required subjects for orientation are basic interpersonal skills; needs of persons with disabilities; overview of the types of tasks the personal assistant will be performing; first aid, safety and emergency procedures, proper completion of required forms; explanation of the consumer's role as supervisor; and explanation of the contractor's responsibilities to personal assistants. This training is provided on or before services are provided for a consumer. The consumer provides the personal assistant all additional training needed to meet his needs. In the block grant or vendor fiscal intermediary model, the consumer provides all the training for the personal assistant.

determine the consumer's preference regarding resuscitation. When there is documentation that the consumer desires resuscitation, the contractor must ensure that the personal assistant for the consumer has a current course completion card for adult cardiopulmonary resuscitation (CPR) from either the Red Cross or American Heart Association. When the consumer desires CPR, new personal assistants must complete the course paid for by the contractor within 60 days from employment.

assume all responsibility for filing of employee income and unemployment taxes.

assume liability for employee work-related injuries.

(E)

prepare payroll and distribute payroll checks to personal assistants.

(F)

conduct criminal history check prior to placement of personal assistant on the job to the consumer.

(G)

resolve problems between the consumer and the personal assistant.

(H)

make payroll spending decisions regarding salary of personal assistant and benefit package.

(I)

not discriminate against personal assistant or applicants.

(J)

accept responsibility for acts of personal assistant on the job.

(K)

provide registered nurse supervision of personal assistants and back-up assistants performing health-related tasks ordered by a physician and delegated by a nurse. The Home and Community Support Services Agencies (HCSSA) agency registered nurse must verify the competence of the personal assistant(s) to perform the health-related tasks delegated by a registered nurse.

§48.2607.Additional Contractor Responsibilities Under the Block Grant Model.

In addition to the responsibilities listed in §48.2605 of this title (relating to Contract or Responsibilities Under Agency, Block Grant, and Vendor Fiscal Intermediary (VFI) Models), contractors in the block grant model must:

reimburse the consumer for personal assistant wages and the employer share of Social Security. The amount of funds retained by the contractor under this model is negotiated with the consumer based upon cost of providing backup and other services.

maintain a pool of personal assistants to use as substitutes and as a referral pool for consumers who do not choose the VFI option. Substitute assistants provide emergency back-up capability upon request of the consumer. The contractor is the employer of substitute personal assistants it provides. When a personal assistant's employment is terminated, the contractor supervises replacement personnel until the consumer hires another personal assistant. Prospective personal assistants are referred to consumers of the program until a satisfactory match is achieved. If the consumer delays hiring a personal assistant for more than seven calendar days after eligibility has been determined, the person conducting the assessment must confer with the consumer to identify the reasons for failure to hire a personal assistant. The person conducting the assessment must also provide training when necessary to enable the applicant or consumer to hire a personal assistant.

§48.2609.Applicant and Consumer Rights and Responsibilities Under the Agency, Block Grant, and Vendor Fiscal Intermediary Models.

The applicant or consumer is responsible for:

obtaining the physician's statement of physical disability as specified in §48.2604 of this title (relating to Consumer Eligibility Criteria);

choosing the method of payment to the personal assistant as specified in §48.2605(5) of this title (relating to Contractor Responsibilities) by completing the Texas Department of Human Services' (DHS's) Consumer Selection of Consumer-Managed Personal Assistance Services (CMPAS) Payment Option form;

negotiating the number of hours and tasks with the contractor and establishing the schedule for the personal assistant to provide services;

selecting and dismissing the personal assistant;

training the personal assistant in the delivery of services, using acceptable and/or necessary procedures;

supervising the personal assistant in the delivery of services or arranging for a friend or relative to provide direct supervision of the personal assistant;

supervising the personal assistant's recording of hours worked and signing and dating the personal assistant's timesheet on or after the last day of the reporting period services were provided;

submitting the signed and dated timesheet to the fiscal agent, according to the payroll schedule established by the fiscal agent. The consumer understands that late arrival of timesheets may result in delay in the personal assistant(s) being paid;

(9)

notifying the contractor of duplicate disallowed services provided by DHS, such as primary home care or family care;

(10)

submitting to the contractor any copayment amounts required;

(11)

providing proof of income for the initial assessment, annual reassessment, and when income changes;

(12)

obtaining standing physician's orders to delegate any of the health-related tasks specified in §48.2602(a)(4) of this title (relating to Program Services) and authorized in the service plan. Standing physician's delegation orders must specify the following:

the delegated health-related tasks;

the personal assistant(s) and back-up personal assistant(s) to whom the health-related tasks are delegated;

the consumer's name; and

appealing the suspension or termination of services according to applicable agency rules; and

the date;

(13)

(14)

informing the contractor and DHS of any changes in the consumer's status which include, but are not limited to, changes in the consumer's address, telephone number, and changes in the consumer's physical condition that may affect the need for services.

§48.2611.Additional Consumer Responsibilities Under the Block Grant Model.

In addition to the responsibilities listed in §48.2609 of this title (relating to Applicant and Consumer Rights and Responsibilities in Agency, Block Grant, and Vendor Fiscal Intermediary Models), consumers who choose the block grant model are responsible for:

resolving any employer or employee-related problems or disagreements directly with his personal assistant(s);

not discriminating against personal assistants or applicants based on race, creed, color, national origin, sex, age, disability, or sexual orientation;

assuming liability for work-related injuries to personal assistant. Personal assistants of consumers participating in the block grant model are considered employees of the consumer. The consumer is the employer and retains control over the hiring, management, and dismissal of an individual providing personal assistance services. Personal assistants are not employees of the contractor or the Texas Department of Human Services (DHS), and the contractor and DHS are not responsible or liable for any negligent acts or omissions by the personal assistant;

spending all funds received from the contractor on wages, employer share of social security, and employee benefits;

preparing and signing an agreement with the personal assistant. This agreement includes:

the tasks the personal assistant is to perform for the consumer;

the schedule the personal assistant will work for the consumer;

the hourly rate the consumer will pay the personal assistant, which must be at least the amount the contractor normally pays personal assistants, and timeframes (at least twice a month);

under what conditions the personal assistant may be dismissed; and

(E)

the requirements that the personal assistant must let the consumer know at least 24 hours in advance of the personal assistant not being able to work for the consumer;

supervising the personal assistant's recording of hours worked and signing and dating the personal assistant's timesheet on or after the last day of the reporting period services were provided; and

submitting the signed and dated timesheet to the contractor.

§48.2614.Consumer Copayment.

The copayment amount is based on the monthly net income of both the consumer and the consumer's spouse. Monthly net income is computed according to procedures outlined in §48.2615 of this title (relating to Determination of Monthly Total Income) and §48.2616 of this title (relating to Computation of Net Income and Income and Income Eligibles). A copayment percentage is then applied according to the following tables. When the consumer suffers undue hardship as a result of financial obligations, the co-pay schedule can be reduced or waived if approved by the department.

The percentage in the right column is multiplied by the cost of the consumer's monthly services to determine the consumer's monthly copay amount.

Figure: 40 TAC §48.2614(b)

The contractor must collect payment from the consumer by the 10th work day of the month. If payment is not made by the 10th work day of the month, the contractor must send notice to the consumer by the 11th work day of the same month. The contractor cannot charge the consumer a fee for late payment. The contractor may terminate services for failure to pay a copayment.

(d)

The contractor must keep receipts for all copayments collected. The contractor must deduct the copayment amount (assessed on the authorization for community care services form) from reimbursement claims submitted to the Texas Department of Human Services.

(e)

The contractor must maintain a current consumer copayment ledger system that reflects all charges and all payments made by the consumer. The ledger must reflect all copayment charges, payments, and balances, and must be maintained in accordance with generally accepted accounting principles.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 30, 2001.

TRD-200100567

Proposal publication date: October 13, 2000

For further information, please call: (512) 438-3108

40 TAC §§48.2601 - 48.2616

The repeals are adopted under the Human Resources Code, Title 2, Chapter 22, which authorizes the department to administer public assistance programs.

The repeals implement the Human Resources Code, §§22.001- 22.030.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 30, 2001.

TRD-200100566

Proposal publication date: October 13, 2000

For further information, please call: (512) 438-3108

Part 6. TEXAS COMMISSION FOR THE DEAF AND HARD OF HEARING

Chapter 183. BOARD FOR EVALUATION OF INTERPRETERS AND INTERPRETER CERTIFICATION

Subchapter A. DEFINITIONS AND BOARD OPERATIONS

40 TAC §183.17

The Texas Commission for the Deaf and Hard of Hearing adopts an amendment to §183.17, paragraph (2) concerning Board Membership, without changes to the text published in the December 22, 2000, issue of the Texas Register (25 TexReg 12635). This rule will allow the Commission more flexibility regarding the terms of members of the BEI Advisory Committee.

No comments were received on the proposed changes.

This amendment is adopted under the Human Resources Code, §81.006(b) (3), which provides the Texas Commission for the Deaf and Hard of Hearing with the authority to adopt rules for administration and programs.

No other statute, code or article is affected by this adoption.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 31, 2001.

TRD-200100633

David Myers

Executive Director

Texas Commission for the Deaf and Hard of Hearing

Effective date: February 20, 2001

Proposal publication date: December 22, 2000

For further information, please call: (512) 407-3250

40 TAC §183.29

The Texas Commission for the Deaf and Hard of Hearing adopts an amendment to §183.29 without changes to the text published in the December 22, 2000, issue of the Texas Register (25 TexReg 12636). This rule will establish the pay rates for compensating evaluators.

No comments were received on the proposed changes.

No other statute, code or article is affected by this adoption.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 31, 2001.

TRD-200100632

David Myers

Executive Director

Texas Commission for the Deaf and Hard of Hearing

Effective date: February 20, 2001

Proposal publication date: December 22, 2000

For further information, please call: (512) 407-3250

Part 20. TEXAS WORKFORCE COMMISSION

Chapter 800. GENERAL ADMINISTRATION

Subchapter A. GENERAL PROVISIONS

40 TAC §800.2

The Texas Workforce Commission (Commission) adopts the repeal of and new Chapter 800, General Administration, §800.2, relating to definitions, without changes to the proposal as published in the December 15, 2000, issue of the Texas Register (25 TexReg 12351). The text will not be republished.

Purpose: The purpose of the repeal and new section is to clarify terms utilized in the Commission's rules which are contained in Title 40, Part 20, Chapter 800 et seq. of the Texas Administrative Code.

More specifically, one purpose of the repeal and new section is to provide clarity regarding the role of the Commission and the role of the Agency in implementing the mission of the Texas Workforce Commission. The rule clarifies that "Agency" refers to the daily operations of the Texas Workforce Commission under the direction of the executive director, and the term "Commission" refers to the three-member body of governance composed of Governor-appointed members.

For the purpose of clarity and conformity with more recent references and terms the following definitions are included in the general definitions section:

Agency, Allocation, Board, Child Care, Choices, Commission, Core Outcome Measures, Executive Director, Food Stamp Employment and Training, One-Stop Service Delivery Network, Performance Measure, Performance Standard, Program Year, TANF, TCWEC, Texas Workforce Center Partner, WIA, and Local Workforce Development Area.

No comments were received on the proposed repeal and new rule.

The repeal is adopted under Texas Labor Code §301.061 and §302.002, which provide the Texas Workforce Commission with the authority to adopt, amend, or repeal such rules as it deems necessary for the effective administration of Agency services and activities.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 30, 2001.

TRD-200100563

J. Randel (Jerry) Hill

Texas Workforce Commission

Effective date: February 19, 2001

Proposal publication date: December 15, 2000

For further information, please call: (512) 463-2573

The new section is adopted under Texas Labor Code §301.061 and §302.002, which provide the Texas Workforce Commission with the authority to adopt, amend, or repeal such rules as it deems necessary for the effective administration of Agency services and activities.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 30, 2001.

TRD-200100564

J. Randel (Jerry) Hill

General Counsel

Texas Workforce Commission

Effective date: February 19, 2001

Proposal publication date: December 15, 2000

For further information, please call: (512) 463-2573

Chapter 811. CHOICES

The Texas Workforce Commission adopts the repeal of Chapter 811, Choices, Subchapter A, General Provisions, §811.1 and §811.2, Subchapter B, Eligibility and Participation, §§811.11-811.20, Subchapter C, Job Search-Related Activities, §§811.31-811.34, Subchapter D, Work-Based Programs, §§811.41-811.45, Subchapter E, Education and Other Training Activities, §§811.61-811.65, Subchapter F, Support Services, §§811.81-811.87, and Subchapter G, Appeals, §811.101; and adopts new Chapter 811, Choices, Subchapter A, General Provisions, §811.1 and §811.2, Subchapter B, Access to Choices Services, §§811.12-811.14, Subchapter C, Choices Services, §§811.22, 811.24-811.28, and 811.30-811.33, Subchapter D, Restrictions on Choices Services, §811.51, Subchapter E, Support Services and Other Initiatives, §§811.61-811.63 and §811.66, and Subchapter F, Appeals, §811.71 and §811.72, relating to Choices services and the participation requirements for persons receiving temporary cash assistance from the Texas Department of Human Services, without changes to the proposed rules as published in the December 15, 2000, issue of the Texas Register (25 TexReg 12353). The text will not be republished. Chapter 811, Choices, Subchapter A, General Provisions, §811.3 and §811.4, Subchapter B, Access to Choices Services, §811.11, Subchapter C, Choices Services, §§811.21, 811.23, 811.29, and 811.34-811.37, and Subchapter E, Support Services and Other Initiatives, §§811.64, 811.65, and 811.67 are adopted with changes to the proposed rules and will be republished.

The four principles of Texas' vision are: limited and efficient state government, local control, personal responsibility, and support for strong families. The One-Stop Service Delivery Network rules, which are based on the four principles of Texas' vision, set forth the role of a Board in the planning, oversight, and management of Choices services as part of the maintenance and continuous improvement of the One-Stop Service Delivery Network as established in Texas Government Code, Chapter 2308, and Texas Labor Code, Chapters 301 and 302, and 40 TAC Chapter 801, Subchapter B. The One-Stop Service Delivery Network rules are also designed to address the four purposes of TANF and the following key principles underlying the Personal Responsibility and Work Opportunity Reconciliation Act, as stated in the April 12, 1999 final TANF regulations at 64 Fed. Reg. 17721:

(1) Welfare reform should help people transition from welfare to work;

(2) Welfare should be a short-term transitional experience, not a way of life;

(3) Parents should receive the assistance necessary to help their families in the transition from welfare to work;

(4) Solutions to poverty and welfare dependency should not be "one-size fits all;" and

(5) Federal and state government should focus less attention on eligibility determinations and place more emphasis on program results.

The four purposes of TANF (42 U.S.C.A. §601(a)), are:

(1) provide assistance to needy families so that children may be cared for in their own homes or in the homes of relatives;

(2) end the dependence of needy parents on government benefits by promoting job preparation, work, and marriage;

(3) prevent and reduce the incidence of out-of-wedlock pregnancies; and

(4) encourage the formation and maintenance of two-parent families.

The goal of Choices services is to end the dependence of needy families on public assistance by promoting job preparation, work and marriage. The Commission intends, to the extent possible, that a Board be provided the flexibility afforded in the final federal TANF regulations and that a Board may engage in strategies that promote the prevention and reduction of out-of-wedlock pregnancies and encourage the formation and maintenance of two-parent families if those strategies support the primary goal of Choices services, which is employment and job retention.

In light of these principles and goals, it is the intent of the Commission that TANF recipients who are required to participate in Choices services, as well as those individuals at risk of becoming dependent on public assistance or who have transitioned off of public assistance, be provided Choices and other services available through the One-Stop Service Delivery Network. More specifically, the changes to the Choices rules are proposed to meet the overarching philosophies and goals of Choices services that include the following:

providing Boards with maximum flexibility to address all purposes of TANF, while ensuring that services provided under purposes 3 and 4, as set forth in proposed §811.1, support the primary goal of promoting employment and job retention/career advancement;

clearly stating the responsibilities of Boards in planning for and managing services including setting forth the Boards' responsibilities related to assessment, development of employability plans, and the delivery of services to individuals;

linking individuals with comprehensive services available through the One-Stop Service Delivery Network;

clearly stating client responsibilities;

describing allowable component activities;

improving linkages between employer needs and individuals who participate in Choices services;

continuing the focus on Work First;

addressing the removal of barriers that limit the individual's ability to work or participate;

clarifying the application of good cause; and

emphasizing post-employment services aimed at job retention and career advancement.

Because of the number of format and organizational changes to the Choices rules, these changes are better facilitated by the repeal of the current rules and adoption of new rules. Following is a more detailed explanation of the changes to the rules.

In §811.1, Purpose and Goal, the new language clarifies the Commission's support of the four purposes of TANF and language concerning expenditure of funds to meet and exceed participation rates and sets forth the goals of Choices services.

In §811.2, Definitions, the new language adds definitions for "Applicant" and "former recipient," and defines the terms "temporary assistance" and "temporary cash assistance" and related terms for purposes of consistency and clarity.

In §811.3, General Board Responsibilities, the new language adds a section to distinguish Board responsibilities from participant responsibilities.

In §811.4, Choices Service Strategy, the new language, which was previously addressed in language contained in former §811.17, is changed to incorporate job retention and career advancement services.

In §811.11, Board Responsibilities Regarding Access, the provisions clarify the responsibilities of the Boards relating to Choices services. Many of the provisions relating to existing requirements are merely reorganized in this section.

In §811.12, Applicant Responsibilities, the language references the provisions relating to attendance regarding Workforce Orientation for Applicants.

In §811.13, Recipient Responsibilities, the language references the provisions relating to recipients' requirements.

In §811.14, Good Cause for Recipients, the new language is added to clarify the application of good cause.

New Subchapter C. is added as the location for provisions relating to Choices Services.

In §811.21, General Provisions, language is added to set forth the Choices services and the Boards' responsibility regarding those services.

In §811.22, Assessment, the provisions set forth the general requirements relating to the assessment.

In §811.23, Employability Plan, the new language, which was previously addressed in language contained in former §811.12, adds a section to strengthen the focus on developing an employability plan based on employers' needs in the local labor market. New language is also included to emphasize the identification and removal of circumstances or barriers that limit an individual's ability to work or participate.

In §§811.24-811.36, the language sets forth provisions relating to additional Choices services.

New Subchapter D is added to set forth Restrictions on Choices Services, which includes §811.51.

Subchapter E is added as the location for rules relating to support services and other initiatives, §§811.61-811.67. In §811.61, Board Review, new language is added to require Board review in the appeal process.

Subchapter F is added as the location for rules relating to Appeals, which includes §811.71 and §811.72.

Additional Background regarding Choices services. Rules of the Texas Department of Human Services relating to employment services, contained in part in 40 TAC Chapter 3, include the following: requirements of applicants of temporary cash assistance to attend workforce orientation sessions and for recipients to participate in employment services; the exemptions from participation requirements; and financial penalties applied to benefits resulting from noncompliance. Recipients of temporary cash assistance benefits, pursuant to the Personal Responsibility Agreement, are required to work or participate in Choices, the state's TANF employment services program. The Commission, where applicable, cross references those rules for the purposes of continuity or clarity.

Although these rules govern services available through the TANF block grant funds, participants may be eligible for and receive services funded through other resources, such as the Welfare-to-Work Formula Grant. Boards have the jurisdiction and the authority to set local policy and determine Choices service delivery strategies and procedures, other One-Stop Service Delivery Network services and activities available in each workforce area, and the locations where services are available and delivered consistent with federal and state regulations, rules, and policies. One such federal requirement is that WIA-funded services should be utilized only after other funding sources, including Choices funds, are exhausted.

Comments were received from one commenter, the West Central Workforce Development Board. The comments and responses are as follows.

Comment: The commenter stated that the Commission is to be commended for identifying areas of local board flexibility as well as expanding the definitions to clarify all individuals who can be served under the Choices program. The commenter also stated that there was only one area of concern about the rule overall regarding the use of the term "Board." In some instances it appears to refer to services that would be delivered by a contractor or other Texas Workforce Center partner, such as regarding on-going assessment, follow-up, and retention. The commenter recommended that language be added throughout the rule, as appropriate, in those instances where a Texas Workforce Center partner or the Board's contractor is actually providing the services, such as in §811.71(a) which specifies a "Texas Workforce Center partner" or by stating that the "The Board shall ensure" rather than "The Board shall ...".

Response: The Commission agrees that Boards are prohibited from delivering services and agrees with clarifying the language. The Commission will change the language throughout, where applicable, to state more clearly the Board's role by using "The Boards shall ensure" and similar language. The Commission does not agree with referencing to the "Texas Workforce Network" and/or the "Board's contractor" because it may create less clarity regarding the Board's role.

Subchapter A. GENERAL PROVISIONS

40 TAC §811.1, §811.2

The rules are repealed under Texas Labor Code §301.061 and §302.002, which provide the Texas Workforce Commission with the authority to adopt, amend, or repeal such rules as it deems necessary for the effective administration of Agency services and activities.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 30, 2001.

TRD-200100549

J. Randel (Jerry) Hill