Part 1. TEXAS DEPARTMENT OF HUMAN SERVICES

Chapter 19. NURSING FACILITY REQUIREMENTS FOR LICENSURE AND MEDICAID CERTIFICATION

The Texas Department of Human Services (DHS) proposes to amend §19.215, concerning informal reconsideration; §19.403, concerning notice of rights and services; §19.2008, concerning investigations of incidents and complaints; §19.2106, concerning revocation of a license; and §19.2301; concerning conditions for participation as a Medicaid-certified facility in its Nursing Facility Licensure Application Process chapter. The purpose of the amendments is to clarify that notice of proceedings to revoke or suspend a license, or deny application for renewal, is sent to a license holder and a copy is sent to the facility. Because this notice concerns revocation of a license, the license holder must be notified. Information also clarifies Medicaid certification as it relates to DHS licensure, and references to rules have been corrected.

Eric M. Bost, commissioner, has determined that for the first five- year period the proposed sections will be in effect, there will be no fiscal implications for state or local governments as a result of enforcing or administering the section.

Mr. Bost also has determined that for each year of the first five years the sections are in effect, the public benefit anticipated as a result of adoption of the proposed rules will be a clearer understanding of the revocation notice process. There will be no effect on small or micro businesses as a result of enforcing or administering the sections, because the proposed changes simply make language clearer or correct a reference. The changes will not effect whether or not a license is revoked, only how the license holder and facility are notified. There is no anticipated economic cost to persons who are required to comply with the proposed sections.

Questions about the content of this proposal may be directed to Connie Pate at (512) 438-3529 in DHS's Long Term Care-Policy Section. Written comments on the proposal may be submitted to Supervisor, Rules and Handbooks Unit-078, Texas Department of Human Services E-205, P.O. Box 149030, Austin, Texas 78714-9030, within 30 days of publication in the Texas Register .

Under §2007.003(b) of the Texas Government Code, the department has determined that Chapter 2007 of the Government Code does not apply to these rules. Accordingly, the department is not required to complete a takings impact assessment regarding these rules.

Subchapter C. NURSING FACILITY LICENSURE APPLICATION PROCESS

40 TAC §19.215

The amendments are proposed under the Human Resources Code, Title 2, Chapters 22 and 32, which authorizes the department to administer public and medical assistance programs.

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

§19.215.Informal Reconsideration.

(a)

Before the institution of proceedings to revoke or suspend a license or deny an application for the renewal of a license, the Texas Department of Human Services (DHS) gives the license holder:

(1)

notice by personal service or by registered or certified mail of the facts or conduct alleged to warrant the proposed action , with a copy being sent to the facility ; and

(2)

(No change.)

(b)

(No change.)

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on February 22, 2001.

TRD-200101101

Paul Leche

General Counsel, Legal Services

Texas Department of Human Services

Earliest possible date of adoption: April 8, 2001

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

40 TAC §19.403

The amendment is proposed under the Human Resources Code, Title 2, Chapters 22 and 32, which authorizes the department to administer public and medical assistance programs.

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

§19.403.Notice of Rights and Services.

(a)-(j)

(No change.)

(k)

Notification of changes.

(1)

(No change.)

(2)

The facility also must [ also ] promptly notify the resident and, if known, the resident's legal representative or interested family member when there is:

(A)

a change in room or roommate assignment as described in §19.701(5)(B) [ §19.701(e) ] of this title (relating to Quality of Life); or

(B)

(No change.)

(3)

(No change.)

(l)

(No change.)

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on February 22, 2001.

TRD-200101102

Paul Leche

General Counsel, Legal Services

Texas Department of Human Services

Earliest possible date of adoption: April 8, 2001

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

40 TAC §19.2008

The amendment is proposed under the Human Resources Code, Title 2, Chapters 22 and 32, which authorizes the department to administer public and medical assistance programs.

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

§19.2008.Investigations of Incidents and Complaints.

(a)

In accordance with the memorandum of understanding between the Texas Department of Human Services (DHS) and the Texas Department of Protective and Regulatory Services (TDPRS) (relating to Memorandum of Understanding Concerning Protective Services for the Elderly), DHS will receive and investigate reports of abuse, neglect, and exploitation of elderly and disabled persons or other residents living in facilities licensed under this chapter. In investigating allegations of abuse and neglect of children residing in facilities, the definitions of "abuse," "neglect," and "person responsible for a child's care, custody, or welfare" are those found in §261.001 [ §34.012 ] of the Texas Family Code.

(b) - (j)

(No change.)

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on February 22, 2001.

TRD-200101103

Paul Leche

General Counsel, Legal Services

Texas Department of Human Services

Earliest possible date of adoption: April 8, 2001

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

2. LICENSING REMEDIES

40 TAC §19.2106

The amendment is proposed under the Human Resources Code, Title 2, Chapters 22 and 32, which authorizes the department to administer public and medical assistance programs.

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

§19.2106.Revocation of a License.

(a) - (b)

(No change.)

(c)

The license holder [ facility ] will be notified by certified mail of DHS's intent to revoke the license, including the facts or conduct alleged to warrant the revocation , with a copy being sent to the facility . The license holder [ facility ] has an opportunity to show compliance with all requirements of law for the retention of the license as provided in §19.215 of this title (relating to Informal Reconsideration). If the license holder [ facility ] requests an informal reconsideration, DHS will give the license holder a written affirmation or reversal of the proposed action.

(d)

The license holder [ facility ] will be notified by certified mail of DHS's revocation of the facility's license , with a copy being sent to the facility . The license holder [ facility ] has 15 days from receipt of the certified mail notice to request a hearing in accordance with Chapter 79, Subchapter Q of this title (relating to Formal Appeals). The revocation will take effect when the deadline for appeal of the revocation passes, unless the license holder [ facility ] appeals the revocation. If the license holder [ facility ] appeals the revocation, the status of the license holder is preserved until final disposition of the contested matter. Upon revocation, the license must be returned to DHS.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on February 22, 2001.

TRD-200101104

Paul Leche

General Counsel, Legal Services

Texas Department of Human Services

Earliest possible date of adoption: April 8, 2001

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

40 TAC §19.2301

The amendment is proposed under the Human Resources Code, Title 2, Chapters 22 and 32, which authorizes the department to administer public and medical assistance programs.

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

§19.2301.Conditions for Participation as a Medicaid-Certified Facility.

(a)

The facility must meet the following conditions to be approved by the Texas Department of Human Services (DHS) for participation in the Title XIX Texas Medical Assistance program and receive state and federal reimbursement for services to Title XIX residents:

(1)

the facility has been certified by DHS as meeting the conditions of participation, including the requirement to have a license from DHS, in the Title XIX Texas Medical Assistance program [ is currently licensed as a nursing facility by the Licensing Section of DHS ];

(2)

the entity licensed to operate the facility has filed a complete application with the Provider Enrollment Section of DHS for participation as a nursing facility in the Title XIX Texas Medical Assistance program; and

[(3)

the facility has a valid certification from DHS that the facility meets the conditions of participation in the Title XIX Texas Medical Assistance program; and]

(3)

[ (4) ] the beds for which the facility wishes to contract meet the requirements of §19.2322 of this title (relating to Additional Participation Requirements).

(b)

(No change.)

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on February 22, 2001.

TRD-200101105

Paul Leche

General Counsel, Legal Services

Texas Department of Human Services

Earliest possible date of adoption: April 8, 2001

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

40 TAC §§41.101, 41.103, 41.105

The Texas Department of Human Services (DHS) proposes new §§41.101, 41.103, and 41.105, concerning definitions, generic contractor responsibilities under the vendor fiscal intermediary (VFI) model, and generic consumer responsibilities under the vendor fiscal intermediary model, in new Chapter 41, Vendor Fiscal Intermediary Payments. The purpose of the new sections is to create a standard set of definitions and operational requirements for all Community Care for the Aged and Disabled (CCAD) programs that use the VFI model of payment care. The VFI model was piloted in DHS's Client Managed Attendant Services program and the Personal Attendant Services program of Texas Rehabilitation Commission (TRC) under House Bill 2084 of the 75th Legislature. The pilot has been expanded to other CCAD programs under Senate Bill 1586 of the 76th Legislature, which directs the Health and Human Services Commission (HHSC) to expand this model to other HHSC community programs. A committee of advocates, personnel from various human services agencies, and consumers is directing this effort and has reviewed the proposed new sections.

Eric M. Bost, commissioner, has determined that for the first five- year period the proposed sections will be in effect there will be no fiscal implications for state or local governments as a result of enforcing or administering the sections.

Mr. Bost also has determined that for each year of the first five years the sections are in effect the public benefit anticipated as a result of enforcing the sections will be an increase in the consumer's direction and control of their personal attendant services. There will also be a potential increase in the salary of personal attendants and improvements in their working conditions. During the pilot study of the VFI model performed by DHS from 1998 to 1999, only three percent of consumers opted for this model. Therefore, DHS expects the impact on small businesses to be minimal. The economic effect on small businesses and large businesses will be the same, and there is no way to eliminate the effect on small businesses.

Questions about the content of this proposal may be directed to Stephen Schoen at (512) 438-2622 in DHS's Community Care section. Written comments on the proposal may be submitted to Supervisor, Rules and Handbooks Unit-272, Texas Department of Human Services E-205, P.O. Box 149030, Austin, Texas 78714-9030, within 30 days of publication in the Texas Register .

Under §2007.003(b) of the Texas Government Code, the department has determined that Chapter 2007 of the Government Code does not apply to these rules. Accordingly, the department is not required to complete a takings impact assessment regarding these rules.

The new chapter and sections are proposed 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 and Texas Government Code §531.051, which covers the voucher program for payment of certain services for persons with disabilities.

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

§41.101.Definitions.

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

(1)

Consumer--An eligible recipient of a Community Care for the Aged And Disabled (CCAD) program or a Medicaid Waiver program that provides personal assistance services. In the Vendor Fiscal Intermediary (VFI) model, the consumer or his legal guardian is the employer of and retains control over the hiring, management, and termination of an individual providing personal assistance or respite.

(2)

Personal assistant--In the VFI model, a person who is employed by the consumer to provide personal assistance through any CCAD program or Medicaid Waiver program.

(3)

Vendor Fiscal Intermediary (VFI)--A CCAD contractor who participates in the VFI model and is responsible for employer administrative related functions.

(4)

Vendor Fiscal Intermediary model--The payment option in which the consumer controls the recruitment, hiring, management, and firing of their personal assistants. A fiscal agent or VFI 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.

§41.103.Generic Contractor Responsibilities under the Vendor Fiscal Intermediary (VFI) Model.

This rule applies to all Community Care for the Aged and Disabled (CCAD) and Medicaid Programs that offer the VFI model of payment, unless stated differently in program rules. Contractors for any VFI model within Texas Department of Human Services (DHS) CCAD programs must:

(1)

contract 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 pay for other approved related expenses;

(2)

train the consumer in VFI program requirements and any other legal requirements, such as the Occupational Safety and Health Act;

(3)

provide the consumer with information, orientation, and training, as needed, concerning fiscal and payroll responsibilities and obligations as employers of personal assistant(s). The VFI must make orientation and training available to the consumer on an ongoing basis to assist the consumer with fulfillment of the duties of an employer including evaluating the performance and knowledge of job duties of employees and;

(4)

act as the agent for the consumer for the purpose of:

(A)

registering the consumer as an employer, including providing assistance to the consumer in completing forms required to obtain an employer identification number (EIN) from federal agencies, state agencies, and unemployment insurance agencies;

(B)

taking the appropriate action to file for employer agent status with the federal and state tax authorities and successfully obtaining agent status;

(C)

making all deposits of unemployment taxes that are withheld according to the appropriate schedule;

(D)

assisting the consumer in acquiring workers' compensation insurance for the consumer's personal assistant who is the consumer's employee, if the consumer provides workers' compensation. Provide the consumer information concerning other options for providing liability coverage for personal assistants. Assisting the consumer includes processing and paying for the consumer's invoice for the personal assistant's compensation insurance payments, within specified timeframes. If a payment is missed due to negligence or non-timely response of the VFI resulting in no coverage, the VFI is liable for any work-related injuries;

(E)

computing and paying federal and state employment taxes, including federal withholding FICA (employer and employee shares), local taxes (optional), unemployment compensation taxes, workers' compensation insurance (if applicable), and other payments required as appropriate, within specified timeframes;

(F)

preparing and filing income tax forms and reports within specified timeframes;

(G)

maintaining original and file copies of all forms needed to comply with federal, state, and local tax payment of unemployment compensation premiums, and all other reporting requirements of employers;

(H)

remitting the required forms to the appropriate state agency and maintaining copies of the forms in the consumer's file upon receipt of the required completed forms from the consumer. The VFI must return copies of all forms to the consumer for the consumer's permanent personnel records;

(I)

receiving and processing personal assistant care timesheets, processing the payroll for the consumer's personal assistant(s) upon receipt of the approved timesheets, preparing the payroll for the consumer's personal assistant(s), performing appropriate income tax, FICA, workers' compensation (if applicable), and other withholding according to federal and state regulations;

(J)

preparing payroll for the consumer's personal assistant(s) according to approved time sheets after making appropriate deductions;

(K)

distributing payroll checks to the consumer's personal assistant(s) according to the consumer's and VFI's check distribution policy. Distribution must be at least twice a month;

(L)

providing, at the consumer's request, the consumer with regular summaries of payroll and deductions made on the consumer's behalf; and

(M)

answering questions and distributing information to concerned parties pertaining to the VFI's responsibilities.

(5)

at the request of the consumer, conduct checks of criminal conviction of personal assistants directly from the Texas Department of Public Safety (DPS) Conviction Data base website and provide the history of convictions to the consumer. If the consumer prefers to request the check from DPS, or to require the personal assistant to obtain the information from DPS, this task does not need to be performed by the VFI. The consumer cannot employ the personal assistant until after the criminal history check is obtained.

(A)

The VFI must also document that the consumer was informed of the criminal history results or that the consumer chose to obtain the criminal history information themselves or through the personal assistant rather than through the VFI. If there is a criminal record that prevents employment according to state law, the participant cannot hire the prospective personal assistant.

(B)

If there is a criminal history result that does not prevent employment by Chapter 250 of the Health and Safety Code, the VFI must document that the consumer was informed of the result. In this case, the VFI must document that the consumer was informed of the criminal history results and that the consumer prefers to hire an employee with a criminal history (when this is not prevented by Chapter 250 of the Health and Safety Code);

(6)

keep a record of expenses paid, related to personal assistant services.

(7)

based on each personal assistant's time sheets and other documentation, pay for each of the consumer's costs incurred relating to personal assistant services, such as substitute (back-up) personal assistants and health insurance, not to exceed the authorization given by the contractor. Invoice payment must be made within 30 working days of the VFI's receipt of the invoice;

(8)

pay costs incurred relating to personal assistance services, such as recruitment (including advertisement, travel, or telephone calls), and provision of substitute (backup) personal assistants, not to exceed the authorization given by the contractor. Payment to the consumer must be made within 30 working days of the VFI receiving the receipt from the consumer;

(9)

serve as the consumer's fiscal intermediary for unexpended funds within the fiscal year;

(10)

maintain record keeping of the reimbursement received, payroll disbursed, and consumer account balances;

(11)

comply with all state and federal rules, laws, and regulations; and

(12)

retain an amount of the unit rate for personal assistant services approved by DHS as an administrative payment.

§41.105.Generic Consumer Responsibilities under the Vendor Fiscal Intermediary Model.

Consumers choosing the vendor fiscal intermediary (VFI) model within any Texas Department of Human Services (DHS) Community Care for the Aged and Disabled (CCAD) program must:

(1)

be capable of performing all employer tasks that the VFI model requires, or appoint a designated person to perform these employer tasks and participate in the training offered by the VFI as specified in §41.103(2) of this title (relating to generic contractor responsibilities under the vendor fiscal intermediary (VFI) model).

(2)

appoint the VFI as the consumer's fiscal and payroll agent;

(3)

request criminal history checks of personal assistant(s), either through the VFI, personal assistant, or directly from the Texas Department of Public Safety Conviction Data base website and consider this information in determining whether to hire the personal assistant(s) as per Chapter 250 of the Health and Safety Code. An individual cannot be hired as a personal assistant until the criminal history check is obtained;

(4)

provide substitute (backup) personal assistant(s);

(5)

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

(6)

make payroll spending decisions pertaining to provisions of personal assistant services and wages and any personal assistant employment- related costs within the consumer's authorized individual service plan, including:

(A)

using the approved budget to cover related personal assistant employment expenses incurred by the consumer, such as recruitment, requesting a criminal history check or an open records check (which is more in-depth than a criminal check) of a potential employee, and provision of substitute (backup) personal assistants;

(B)

providing the personal assistant with one or more of the optional benefits selected from the following list: increased wages, paid vacation, health insurance, workers' compensation, work-related travel expenses, and bonus, holiday, overtime, and sick pay. If the consumer elects not to provide workers' compensation insurance coverage for the personal assistant, the consumer must disclose this election to the personal assistant by having the personal assistant sign a written notice that workers' compensation will not be provided;

(C)

purchasing more hours of personal assistant services by paying a decreased rate per hour when the consumer's services are at the maximum allowed by the program as long as the total amount does not exceed the authorized service plan amount for the category of service and the hours are used for the purpose of the program; and

(D)

purchasing other authorized services related to personal assistant services, provided the services are covered by the consumer's budget plan developed by the VFI in conjunction with the consumer. The VFI must not pay for services excluded from the service plan, non-allowable costs according to DHS rule, or for services that exceed the service plan.

(7)

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

(8)

perform all other employer tasks except for employer-related administrative functions specifically assumed by the VFI;

(9)

notify the VFI of all personal assistant enrollments, substitutions, dismissals, and the reasons therefore;

(10)

specify the tasks the personal assistant is to perform for the consumer, the schedule the personal assistant will work for the consumer, the hourly rate (which must be at least the minimum wage level) the consumer will pay the personal assistant, timeframes (at least twice a month) the VFI will pay the personal assistant, and benefits the personal assistant will receive;

(11)

submit to the VFI receipts or invoices for personal assistance services related costs as specified in paragraph (6)(D) of this section. The consumer cannot receive reimbursement for those services lacking copies of receipts. The copy of the receipt or invoice must be legible, verify how purchase of an allowable service pertains to the personal assistant employment-related cost, and not be dated prior to the date the individual was certified eligible for the CCAD program or prior to the date the VFI option was chosen. Additionally, the copy of the receipt or invoice must include specifications of service purchased, date service was purchased, and the vendor's name and identifying information. The receipt must be marked paid. If the consumer does not provide required invoices, the VFI must not make payments;

(12)

accept services through a non-vendor fiscal intermediary model for three months if the consumer discontinues services through the VFI model. If services are discontinued due to consumer inability or refusal to comply with responsibilities, a VFI and DHS representative or designee must review consumer's plan for correction of previous deficiencies before re-initiation of the VFI model;

(13)

assume liability. Personal assistants of consumers participating in the VFI model are considered employees of the consumer. The consumer is the employer of record and retains control over the selection, management, and dismissal of an individual providing personal assistance services. Personal assistants are not employees of the VFI or DHS, and the VFI and DHS are not responsible or liable for any negligent acts or omissions by the personal assistant or the employer;

(14)

assume all disability related training for the personal assistant including nature of the disability, type of care needed, steps in carrying out procedures, and safety precautions;

(15)

perform annual evaluations and provide ongoing feedback regarding job performance to all personal assistants;

(16)

change to the agency model on VFI's recommendation, if there is a documented, substantiated pattern of consumer's refusal or inability to comply with the responsibilities listed in paragraphs (1)-(15) of this section. With concurrence from the authorized DHS representative, this recommendation will be enacted immediately. A request for a hearing to appeal the decision may be made in accordance with program guidelines; and

(17)

consumer complaints regarding actions of the VFI or the personal assistant relating to abuse, neglect, and exploitation, will be addressed to the authorized Texas Department of Protective and Regulatory Services (TDPRS) representative.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on February 20, 2001.

TRD-200101052

Paul Leche

General Counsel, Legal Counsel

Texas Department of Human Services

Earliest possible date of adoption: April 8, 2001

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