Effective date: April 10, 2002

Proposal publication date: February 15, 2002

For further information, please call: (512) 438-3734

Chapter 19. NURSING FACILITY REQUIREMENTS FOR LICENSURE AND MEDICAID CERTIFICATION

The Texas Department of Human Services (DHS) adopts amendments to §19.408 and §19.1921 in its Nursing Facility Requirements for Licensure and Medicaid Certification chapter. DHS adopts §19.1921 with changes to the proposed text published in the February 1, 2002, issue of the Texas Register (27 TexReg 736). DHS adopts §19.408 without changes.

Justification for the amendments is to implement the Health and Safety Code, §242.042(a) and §242.1335(a), to ensure that family members and guardians are protected against retaliation for complaints or grievances against nursing facilities.

The department received no comments regarding adoption of the amendments.

DHS corrected the reference to the Health and Safety Code, Chapter 242, Subchapter E in §19.1921(e)(9) by deleting punctuation.

Subchapter E. RESIDENT RIGHTS

40 TAC §19.408

The amendment is adopted under the Health and Safety Code, Chapter 242, which authorizes DHS to license and regulate convalescent and nursing homes and related institutions.

The amendment implements the Health and Safety Code, §§242.001 - 242.852.

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

Filed with the Office of the Secretary of State on March 21, 2002.

TRD-200201755

For further information, please call: (512) 438-3734

Subchapter T. ADMINISTRATION

40 TAC §19.1921

The amendment is adopted under the Health and Safety Code, Chapter 242, which authorizes DHS to license and regulate convalescent and nursing homes and related institutions.

The amendment implements the Health and Safety Code, §§242.001 - 242.852.

§19.1921.General Requirements for a Nursing Facility.

(a) The facility must admit and retain only residents whose needs can be met through service from the facility staff, or in cooperation with community resources or other providers under contract.

(1) In any circumstance in which a facility refuses to admit a resident being transferred due to the emergency closure of another facility, the facility must provide the regional unit manager with a written statement of the reasons for the refusal within 10 working days.

(2) Failure to submit the written statement timely or including false or misleading information in the statement will result in an administrative penalty.

(b) Individuals who have met the requirements of §19.2500 of this title (relating to Preadmission Screening and Annual Resident Review (PASARR) and have mental and/or physical diseases which endanger other residents may be admitted or retained if adequate rooms and care are provided to protect the other residents.

(c) The term "hospital" may not be used as part of the name of a nursing facility unless it has been classified and duly licensed as a hospital by the appropriate state agency.

(d) In the event any facility ceases operation, temporarily or permanently, voluntarily or involuntarily, notice must be provided to the residents and residents' relatives or responsible parties of closure.

(e) Each licensed facility must conspicuously and prominently post the information listed in paragraphs (1) - (11) of this subsection in an area of the facility that is readily available to residents, employees, and visitors. The posting must be in a manner that each item of information is directly visible at a single time. In the case of a licensed section that is part of a larger building or complex, the posting must be in the licensed section or public way leading to it. Any exceptions must be approved by the Texas Department of Human Services (DHS). The following items must be posted:

(1) the facility license;

(2) a complaint sign provided by DHS giving the toll-free telephone number;

(3) a notice in a form prescribed by DHS that inspection and related reports are available at the facility for public inspection. The reports must be maintained in a well-lighted accessible location and must include:

(A) a statement of the facility's compliance record that is updated at least bi-monthly and reflects at least one year's compliance record, in a form required by the department; and

(B) if a facility has been cited for a violation of residents' rights, a copy of the citation, which must remain in the reports until any regulatory action with respect to the violation is complete, and DHS has determined that the facility is in full compliance with the applicable requirement;

(4) a concise summary in non-technical language prepared by DHS of the most recent inspection report;

(5) notice of DHS's toll-free telephone number to obtain summary reports relating to the quality of care, recent investigations, litigation and other aspects of the operation of the institution;

(6) notice that DHS can provide information about the nursing facility administrator at 512-231-5825;

(7) if a facility has been ordered to suspend admissions, a notice of the suspension, which must be posted also on all doors providing public ingress to and egress from the facility;

(8) a statement of resident rights in the form adopted by DHS;

(9) a notice that employees, other staff, residents, volunteers, and family members and guardians of residents are protected from discrimination or retaliation as provided by the Health and Safety Code, §§242.133 and §242.1335; and that the facility has available for public inspection a copy of the Health and Safety Code, Chapter 242, Subchapter E.

(10) for a facility which advertises, markets, or otherwise promotes that it provides services to residents with Alzheimer's disease and related disorders, a disclosure statement describing the nature of its care or treatment of residents with Alzheimer's disease and related disorders in accordance with §19.204(b)(4) of this title (relating to Application Requirements).

(11) at each entrance to the facility, a sign in English and Spanish, that it is unlawful to carry a handgun on the premises. The sign must appear in contrasting colors with block letters at least one inch in height and be displayed in a conspicuous manner, clearly visible to the public.

(f) For facilities serving residents with Alzheimer's disease and related disorders, failure to post the required disclosure statement, as specified in subsection (e)(10) of this section, will result in an administrative penalty in accordance with §19.2112 of this title (relating to Administrative Penalties).

(g) A facility which advertises, markets, or otherwise promotes that it provides services to residents with Alzheimer's disease and related disorders must give the required department disclosure statement to an individual:

(1) with Alzheimer's disease or a related disorder, seeking placement as a resident;

(2) attempting to place another individual as a resident with Alzheimer's disease or a related disorder; or

(3) seeking information about the facility's care or treatment of residents with Alzheimer's disease or a related disorder.

(h) The inspection reports and related reports that will be available at the facility for public inspection must include licensing inspection reports, deficiency sheets, and plan of correction of Medicare and Medicaid participating facilities, and summaries provided by the DHS of inspections and complaint investigations. This material must cover the most current 12 months. The material available for public inspection must be available at the facility business office or administrator's office during normal office hours. On admission to the facility, the resident and/or responsible party must be advised that these reports are available.

(i) A copy of the Health and Safety Code, Chapter 242, must be available for public reference at the facility business office or administrator's office during normal office hours.

(j) Summaries, inspection reports, and related reports prepared by DHS must be available to the public through DHS's public disclosure procedures.

(k) Within 72 hours of admission, the facility must prepare a written inventory of the personal property a resident brings to the facility, such as furnishings, jewelry, televisions, radios, sewing machines, and medical equipment. The facility does not have to inventory the resident's clothing; however, the operating policies and procedures must provide for the management of resident clothing to prevent loss and/or damage. The facility administrator or his or her designee must sign and retain the written inventory and must give a copy to the resident and/or the resident's responsible party. The facility must revise the written inventory to show if property is lost, destroyed, damaged, replaced, or supplemented. Upon discharge of the resident, the disposition of personal effects must be documented by a dated receipt bearing the signature of the resident and/or the resident's responsible party. See §19.416 of this title (relating to Personal Property).

(l) Persons convicted of certain crimes may not be employed in nursing facilities. As required by Chapter 250 of the Health and Safety Code and as found in §§76.101 - 76.106 of this title (relating to Criminal History Check of Employees in Facilities for Care of the Aged and Persons with Disabilities), the facility must, prior to an offer of employment, conduct criminal history checks on persons whose positions involve direct contact with residents, unless they are licensed under another law.

(m) Before a facility hires an unlicensed employee, the facility must search the employee misconduct registry established under §253.007, Health and Safety Code, and the DHS nurse aide registry to determine whether the individual is designated in either registry as having abused, neglected, or exploited a resident or a consumer of a facility. Both registries can be contacted at 1-800-452-3934.

(1) A facility may not employ a person who is listed in either registry as having abused, neglected, or exploited a resident or a consumer of a facility.

(2) Each facility is required to provide written notification upon hiring and to all employees:

(A) about the employee misconduct registry; and

(B) that a person may not be employed if listed on the registry.

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

Filed with the Office of the Secretary of State on March 21, 2002.

TRD-200201756

For further information, please call: (512) 438-3734

Chapter 19. NURSING FACILITY REQUIREMENTS FOR LICENSURE AND MEDICAID CERTIFICATION

The Texas Department of Human Services (DHS) adopts amendments to §19.801, §19.1911, and §19.1912; and new §19.805 in its Nursing Facility Requirements for Licensure and Medicaid Certification chapter. DHS adopts §19.805, §19.1911, and §19.1912 with changes to the proposed text published in the February 1, 2002, issue of the Texas Register (27 TexReg 737). DHS adopts §19.801 without changes.

Justification for the amendments is to include permanency planning components in response to the Government Code, Chapter 531, Subchapter D. New §19.805 is added to specifically address nursing facility notification responsibilities regarding permanency planning. Paragraph (13) was added to §19.801 to implement the provision of the Health and Safety Code, §242.158, which requires that each resident considered for transition to a community-based care setting must be identified to determine the presence of mental illness or mental retardation to determine the need for and funding levels of services for mental illness/mental retardation. In addition, several components from §19.801 that correspond to children in nursing facilities were moved to this section.

The department received no comments regarding adoption of the new section and amendments.

DHS corrected capitalizations, punctuation, and reference format in §19.805, updated a reference to the Texas Department of Mental Health and Mental Retardation (TDMHMR) in §19.1911, and corrected punctuation in §19.1912(e)(1)(E).

Subchapter I. RESIDENT ASSESSMENT

40 TAC §19.801, §19.805

The amendment and new section are adopted under the Health and Safety Code, Chapter 242, which authorizes DHS to license and regulate convalescent and nursing homes and related institutions.

The amendment and new section implement the Health and Safety Code, §§242.001 - 242.852.

§19.805.Permanency Planning for Pediatric Residents.

(a) Definitions. The following words and terms, when used in this section, have the following meanings, unless the context clearly indicates otherwise.

(1) Permanency planning--A philosophy and planning process that focuses on the outcome of family support by facilitating a permanent living arrangement, with the primary feature of an enduring and nurturing parental relationship. Family-directed planning empowers the family of a child under the age of 18 to direct the development of supports and services that meet the child and family's personal outcomes as related to that child. Person-directed planning empowers the child who is between 18 and 22 years of age to direct the development of a plan of supports and services that meets the needs for self-determination.

(2) Child--A person with a developmental disability who is younger than 22 years of age.

(3) Community resource coordination group (CRCG)--A coordination group established under the memorandum of understanding adopted under the Family Code, §264.003.

(b) Facility responsibilities regarding permanency planning.

(1) A Preadmission Screening and Resident Review (PASARR) must be requested on every child who is a potential admission to a nursing facility, as well as on all children currently residing in a nursing facility who have not had a previous PASARR completed. Documentation regarding the request for or completion of a PASARR must be kept in the chart.

(2) A facility must notify the following entities of the child's admission not later than the third day after a child is initially placed in a facility:

(A) the DHS pediatric nurse specialist via fax. Information must include the child's full name, date of birth, date of admission, social security number, Medicaid number (if available), the facility name and address, and the name, address, and telephone number of the child's parent or guardian;

(B) the CRCG in the county where the parent or guardian resides;

(C) the local office of Early Childhood Intervention (ECI) for children from birth to age three, with which the facility must coordinate educational opportunities; and

(D) the local school district for children from ages three to younger than 22 years of age, with which the facility must coordinate educational opportunities. See §19.1934 of this title (relating to Educational Requirements for Persons Under 22).

(3) The facility must notify the DHS pediatric nurse specialist within 14 days if there is a significant change of condition in a child residing in the facility.

(4) The facility must keep documentation regarding all the above notifications and a copy of the most current permanency plan documentation in a separate section in the front of each child's records.

(5) Each facility in which a child resides must:

(A) allow appropriate health and human services agencies and the individuals designated by DHS access to the child's records; and

(B) add the permanency planning goal to the care plan.

(6) The facility administrator must ensure that the social worker or other appropriate staff, as needed, will contribute to the development of the permanency plan.

(7) Paragraphs (3) - (6) do not apply to short-stay care of less than 14 days; however, the facility must notify the DHS pediatric nurse specialist, the CRCG, and ECI or the local school district as required in paragraph (2)(A) - (D) of this subsection.

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

Filed with the Office of the Secretary of State on March 21, 2002.

TRD-200201757

For further information, please call: (512) 438-3734

Subchapter T. ADMINISTRATION

40 TAC §19.1911, §19.1912

The amendments are adopted under the Health and Safety Code, Chapter 242, which authorizes DHS to license and regulate convalescent and nursing homes and related institutions.

The amendments implement the Health and Safety Code, §§242.001 - 242.852.

§19.1911.Contents of the Clinical Record.

The clinical record of each resident must contain:

(1) Sufficient information to identify and care for the resident, to include at a minimum:

(A) full name of resident;

(B) full home/mailing address;

(D) health insurance claim numbers, if applicable;

(E) date of birth; and

(F) clinical record number, if applicable.

(2) A record of the resident's assessments.

(3) The comprehensive, interdisciplinary plan of care and services provided (see also §19.802 of this title (relating to Comprehensive Care Plans)), and the permanency plan for pediatric residents younger than 22 years of age.

(4) The results of any Preadmission Screening and Resident Review conducted by the Texas Department of Human Services (DHS) or the Texas Department of Mental Health and Mental Retardation (TDMHMR).

(5) Progress notes from all health care practitioners involved in the resident's care.

(6) Any directives or durable powers of attorney as described in §19.419 of this title (relating to Directives and Medical Powers of Attorney).

(7) Discharge information in accordance with §19.803 of this title (relating to Discharge Summary (Discharge Plan of Care)) and a physician discharge summary, to include, at least, dates of admission and discharge, admitting and discharge diagnoses, condition on discharge, and prognosis, if applicable.

(8) At admission or within 14 days, documentation of an initial medical evaluation, including history, physical examination, diagnoses and an estimate of discharge potential and rehabilitation potential and documentation of an annual medical examination.

(9) Authentication of any hospital diagnoses.

(A) This may be in the form of a signed hospital discharge summary, a signed report from the resident's hospital or attending physician, or a transfer form signed by the physician.

(B) The facility is allowed 14 workdays after admission to receive this information from the hospital or transferring facility. If the author of such reports is not the resident's attending physician, then the attending physician must acknowledge the report in writing by co-signing the report at his or her next scheduled visit.

(10) The physician's signed and dated orders, including medication, treatment, diet, restorative and special medical procedures, and routine care to maintain or improve the resident's functional abilities (required for the safety and well-being of the resident). Changes cannot be made either on a handwritten or computerized physician's order sheet after the orders have been signed by the physician unless space allows for additional orders below the physician's signature, including space for the physician to sign and date again.

(11) Arrangements for the emergency care of the resident in accordance with §19.1204 of this title (relating to Availability of Physician for Emergency Care).

(12) Observations made by nursing personnel according to the time frames specified in §19.1010 of this title (relating to Nursing Practices). Facility staff must ensure that the observations show at least the following:

(A) items as specified on the Resident Assessment Instrument and the Texas Nursing Facility Client Assessment Review and Evaluation (CARE) form; and

(B) current information including:

(i) PRN medications and results;

(ii) treatments and any notable results;

(iii) physical complaints, changes in clinical signs and behavior, mental and behavioral status, and all incidents or accidents;

(iv) flow sheets which may include bathing, restraint observation and/or release documentation, elimination, fluid intake, vital signs, ambulation status, positioning, continency status and care, and weight;

(v) the resident's ability to participate in activities of daily living as defined in §19.1010(e)(1) of this title; and

(vi) dietary intake to include deviations from normal diet, rejection of substitutions, and physician's ordered snacks and/or supplemental feedings.

(13) The date and hour all drugs and treatments are administered.

(14) Documentation of special procedures performed for the safety and well-being of the resident must be included in the clinical record.

§19.1912.Additional Clinical Record Service Requirements.

(a) Index of admissions and discharges. The facility must maintain a permanent, master index of all residents admitted to and discharged from the facility. This index must contain at least the following information concerning each resident:

(1) name of resident (first, middle, and last);

(2) date of birth;

(3) date of admission;

(4) date of discharge; and

(5) social security, Medicare, or Medicaid number.

(b) Facility closure. In the event of closure of a facility, change of ownership or change of administrative authority, the new management must maintain documented proof of the medical information required for the continuity of care of all residents. This documentation may be in the form of copies of the resident's clinical record or the original clinical record. In a change of ownership, the two parties will agree and designate in writing who will be responsible for the retention and protection of the inactive and closed clinical records.

(c) Method of recording/correcting information. All resident care information must be recorded in ink or permanent print except for the medication/treatment diet section of the care plan. Correction of errors will be in accordance with accepted health information management standards.

(1) Erasures are not allowed on any part of the clinical record, with the exception of the medication/treatment/diet section of the resident care plan.

(2) Correction of errors will be in accordance with accepted health information management standards.

(d) Required record retention. Periodic thinning of active clinical records is permitted; however, the following items must remain in the active clinical record:

(1) current history and physical;

(2) current physician's orders and progress notes;

(3) current resident assessment instrument (RAI) and subsequent quarterly reviews; in Medicaid-certified facilities, all RAIs and Quarterly Reviews for the prior 15-month period;

(4) current care plan;

(5) most recent hospital discharge summary or transfer form;

(6) current nursing and therapy notes;

(7) current medication and treatment records;

(8) current lab and x-ray reports;

(9) the admission record; and

(10) the current permanency plan.

(e) Readmissions.

(1) If a resident is discharged for 30 days or less and readmitted to the same facility, upon readmission, to update the clinical record, staff must:

(A) obtain current, signed physician's orders;

(B) record a descriptive nurse note, giving a complete assessment of the resident's condition;

(D) obtain signed copies of the hospital or transferring facility history and physical and discharge summary. A transfer summary containing this information is acceptable;

(E) complete a new RAI and update the comprehensive care plan if evaluation of the resident indicates a significant change, which appears to be permanent. If no such change has occurred, then update only the resident comprehensive care plan; and

(F) comply with §19.805 of this title (regarding Permanency Planning for Pediatric Residents).

(2) A new clinical record must be initiated if the resident is a new admission or has been discharged for over 30 days.

(f) Signatures.

(1) The use of electronic data transmission of facsimiles (faxing) is acceptable for sending and receiving health care documents, including the transmission of physicians' orders. Long term care facilities may utilize electronic transmission if they adhere to the following requirements:

(A) The facility must implement safeguards to assure that faxed documents are directed to the correct location to protect confidential health information.

(B) All faxed documents must be signed by the author before transmission.

(2) Stamped signatures are acceptable for all health care documents requiring a physician's signature, if the person using the stamp sends a letter of intent which specifies that he will be the only one using the stamp, and then signs the letter with the same signature as the stamp.

(3) The facility must maintain all letters of intent on file and make them available to representatives of the Texas Department of Human Services (DHS) upon request.

(4) Use of a master signature legend in lieu of the legend on each form for nursing staff signatures of medication, treatment, or flow sheet entries is acceptable under the following circumstances.

(A) Each nursing employee documenting on medication, treatment, or flow sheets signs his full name, title, and initials on the legend.

(B) The original master legend is kept in the clinical records office or director of nurses' office.

(D) When a nursing employee leaves employment with the facility, his name is deleted from the list by lining through it and writing the current date by the name.

(E) The facility updates the master legend as needed for newly hired and terminated employees.

(F) The master signature legend must be retained permanently as a reference to entries made in clinical records.

(g) Destruction of Records. When resident records are destroyed after the retention period is complete, the facility must shred or incinerate the records in a manner which protects confidentiality. At the time of destruction, the facility must document the following for each record destroyed:

(1) resident name;

(2) medical record number, if used;

(3) social security number, Medicare/Medicaid number, or the date of birth; and

(4) date and signature of person carrying out disposal.

(h) Confidentiality. The facility must develop and implement policies and procedures to safeguard the confidentiality of medical record information from unauthorized access.

(1) Except as provided in paragraph (2) of this subsection, the facility must not allow access to a resident's clinical record unless a physician's order exists for supplies, equipment, or services provided by the entity seeking access to the record.

(2) The facility must allow access and/or release confidential medical information under court order or by written authorization of the resident or his or her legal representative (see §19.407 of this title (relating to Privacy and Confidentiality)).

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

Filed with the Office of the Secretary of State on March 21, 2002.

TRD-200201758

For further information, please call: (512) 438-3734

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

Chapter 183. BOARD FOR EVALUATION OF INTERPRETERS AND INTERPRETER CERTIFICATION

Subchapter B. BOARD CERTIFICATION EVALUATION

40 TAC §183.157

The Texas Commission for the Deaf and Hard of Hearing adopts amendment to §183.157 without changes to the text as published in the October 19, 2001, issue of the Texas Register (26 TexReg 8331). This amendment implements H.B. 2735 which authorizes the Commission to test and certify interpreters to function in court settings.

No comments were received.

This rule 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 section.

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

Filed with the Office of the Secretary of State on March 25, 2002.

TRD-200201836

David Myers

Executive Director

Texas Commission for the Deaf and Hard of Hearing

Effective date: April 14, 2002

Proposal publication date: October 19, 2001

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

Part 19. TEXAS DEPARTMENT OF PROTECTIVE AND REGULATORY SERVICES

Chapter 700. CHILD PROTECTIVE SERVICES

Subchapter H. ADOPTION ASSISTANCE PROGRAM

The Texas Department of Protective and Regulatory Services (PRS) adopts amendments to §§700.801, 700.805, 700.823, and 700.840, without changes to the proposed text published in the February 8, 2002, issue of the Texas Register (27 TexReg 893).

The justification for the amendments is to clarify that a court removal order does not need to precede a voluntary transfer of a child to a private licensed child-placing agency for a child to be eligible for adoption assistance. The court must still be petitioned for a removal order within six months after such a voluntary transfer, and the court must make the specified finding in the first order that responds to the petition. The amendments add the statement that court orders cannot merely approve a voluntary relinquishment and be considered a judicial removal for the purpose of Title IV-E adoption assistance. The amendments also clarify that PRS can enter into Title IV- E agreements with other authorized entities, such as another public agency or Indian tribe.

The amendments will function by ensuring that certain children in the care of private child- placing agencies and placed for adoption will qualify for adoption assistance. Inclusion of the minor amendments to reflect federal law will facilitate development of agreements with other entities should the need arise.

No comments were received regarding adoption of the amendments.

1. PROGRAM DESCRIPTION AND DEFINITIONS

40 TAC §700.801, §700.805

The amendments are adopted under Human Resources Code, §40.029, which provides the department with the authority to propose and adopt rules in compliance with state law and to implement departmental programs.

The amendments implement the Texas Family Code, Chapter 162, Subchapter D, Adoption Assistance Program, and Title IV-E of the Social Security Act (42 U.S.C. §673), which require that the department implement an adoption assistance program for special needs children.

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

Filed with the Office of the Secretary of State on March 22, 2002.

TRD-200201786

Texas Department of Protective and Regulatory Services

For further information, please call: (512) 438-3437

2. TITLE IV-E ELIGIBILITY REQUIREMENTS

40 TAC §700.823

The amendment is adopted under Human Resources Code, §40.029, which provides the department with the authority to propose and adopt rules in compliance with state law and to implement departmental programs.

The amendment implements the Texas Family Code, Chapter 162, Subchapter D, Adoption Assistance Program, and Title IV-E of the Social Security Act (42 U.S.C. §673), which require that the department implement an adoption assistance program for special needs children.

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

Filed with the Office of the Secretary of State on March 22, 2002.

TRD-200201787

Texas Department of Protective and Regulatory Services

For further information, please call: (512) 438-3437

3. APPLICATION PROCESS, AGREEMENTS, AND BENEFITS

40 TAC §700.840

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

Filed with the Office of the Secretary of State on March 22, 2002.

TRD-200201788

Texas Department of Protective and Regulatory Services

For further information, please call: (512) 438-3437

Subchapter H. ADOPTION ASSISTANCE PROGRAM

The Texas Department of Protective and Regulatory Services (PRS) adopts amendments to §§700.842, 700.860, and 700.880; adopts the repeal of §700.844; and adopts new §700.844, without changes to the proposed text published in the February 8, 2002, issue of the Texas Register (27 TexReg 895).

The justification for the sections is to repeal the rule that links the adoption subsidy payment ceiling to the level-of-care 1 foster-care rate, and adopt a new rule that requires the PRS Board to establish and review the adoption subsidy payment ceiling at least once each budgetary biennium. Cross-references to §700.844 are amended to reflect the new rule title.

The sections will function by allowing PRS to adjust the adoption assistance payment ceiling, as necessary, to accommodate budgetary resources, thereby avoiding a potential deficit and the concomitant disruption of the adoption assistance program.

During the public comment period, PRS received comments from Texas Association of Leaders in Children and Family Services (TALCS), Spaulding for Children, Casa de Esperanza Family Center, and adoptive families. Forty-two letters were received from adoptive parents, two letters from adopted special needs children, 10 letters from staff and board members of Spaulding for Children, one letter from the TALCS executive director, and two letters from Casa de Esperanza Family Center staff. As a whole, the comments were similar in substance and not supportive of the rules. Most of the respondents believe adoption of the rules will result in fewer children being placed in adoptive homes. Staff believes the new rules will not impact adoptive placements unless the Board adopts a payment ceiling that is significantly lower than the level- of-care 1 rate. Many comments assume that the new rules will automatically lower payments and therefore create a hardship on children and families. The rules give the Board the flexibility to decide whether a new payment ceiling will affect current adoption assistance agreements or only new adoptions. One commenter suggested PRS establish a standard minimum payment amount. Federal law precludes the use of standard payment amounts, so this will not be considered. One commenter suggested that there was an issue with children receiving varying amounts of assistance. It was recommend that private agency staff take part in determining adoption assistance benefits in order to ensure uniformity. Federal law requires each adoption assistance agreement to be negotiated individually based upon the child's needs and the family's resources. PRS is adopting the rules without change.

3. APPLICATION PROCESS, AGREEMENTS, AND BENEFITS

40 TAC §700.842, §700.844

The amendment and new section are adopted under the Human Resources Code, §40.029, which authorizes the department to propose and adopt rules in compliance with federal and state laws and regulations and to implement departmental programs; and Texas Family Code, Chapter 162, Subchapter D, Adoption Assistance Program, which requires the department to adopt rules to implement an adoption assistance program for special needs children.

The amendment and new section implement the Human Resources Code, §40.029, and Texas Family Code, Chapter 162, Subchapter D.

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

Filed with the Office of the Secretary of State on March 22, 2002.

TRD-200201789

Texas Department of Protective and Regulatory Services

For further information, please call: (512) 438-3437

40 TAC §700.844

The repeal is adopted under the Human Resources Code, §40.029, which authorizes the department to propose and adopt rules in compliance with federal and state laws and regulations and to implement departmental programs; and Texas Family Code, Chapter 162, Subchapter D, Adoption Assistance Program, which requires the department to adopt rules to implement an adoption assistance program for special needs children.

The repeal implements the Human Resources Code, §40.029, and Texas Family Code, Chapter 162, Subchapter D.

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

Filed with the Office of the Secretary of State on March 22, 2002.

TRD-200201790

Texas Department of Protective and Regulatory Services

For further information, please call: (512) 438-3437

4. CHANGES IN CIRCUMSTANCES

40 TAC §700.860

The amendment is adopted under the Human Resources Code, §40.029, which authorizes the department to propose and adopt rules in compliance with federal and state laws and regulations and to implement departmental programs; and Texas Family Code, Chapter 162, Subchapter D, Adoption Assistance Program, which requires the department to adopt rules to implement an adoption assistance program for special needs children.

The amendment implements the Human Resources Code, §40.029, and Texas Family Code, Chapter 162, Subchapter D.

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

Filed with the Office of the Secretary of State on March 22, 2002.

TRD-200201791

Texas Department of Protective and Regulatory Services

For further information, please call: (512) 438-3437

5. APPEALS AND HEARINGS

40 TAC §700.880

The amendment implements the Human Resources Code, §40.029, and Texas Family Code, Chapter 162, Subchapter D.

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

Filed with the Office of the Secretary of State on March 22, 2002.

TRD-200201792

Texas Department of Protective and Regulatory Services

For further information, please call: (512) 438-3437

Chapter 720. 24-HOUR CARE LICENSING

The Texas Department of Protective and Regulatory Services (PRS) adopts amendments to §§720.136, 720.206, 720.366, 720.373, 720.505, and 720.525, without changes to the proposed text published in the February 8, 2002, issue of the Texas Register (27 TexReg 897).

The justification for the amendments is to decrease the required frequency of the diagnostic evaluation for a child who is coming from a regulated placement. For children moving from a regulated placement, the required evaluation is changed from a six-month interval to a 14- month interval prior to admission or if the admission is an emergency placement, within 30 days after admission. For all children being admitted to an institution serving mentally retarded children, the admission procedure allows an evaluation to be completed within 12 months prior to admission. This rule is expanded to allow the evaluation to be changed from a 12-month interval to a 14-month interval prior to admission, and within 30 days after admission in emergency placement situations. For all other facilities, when a child is not coming from a regulated placement, the facilities currently must have an evaluation within six months prior to admission and now, the rule is expanded to allow the evaluation to be done within 30 days after admission in emergency placement situations. Also, in §§720.136, 720.206, 720.366, and 720.373 the term "closed setting" is replaced with "more restrictive setting" for the purpose of clarity.

The amendments will function by decreasing the required frequency of the diagnostic evaluation for a child who is coming from a regulated placement, and allowing for flexibility in emergency placements in all of the noted facilities. The change supports the prevailing view of mental health professionals regarding the frequency with which these evaluations are needed for children in facilities.

During the public comment period, PRS received a comment from the Bayes Achievement Center. The commenter stated that the rules should allow an exception for psychological evaluations to be completed every three years for children who are placed by the school district to be consistent with the Americans with Disabilities Act (ADA). More frequent evaluations on children placed by the school district would require an additional cost to the family, school district, or sometimes the facility. PRS's response is that the rule amendments extend the period of time that an evaluation is valid. They do not require more frequent evaluations. PRS is not aware of any section of the ADA that stipulates timeframes for services. Regardless, a provider may request a variance to a standard based on good and just cause. PRS is adopting the rules without change, so that the needs of children in care can be assessed accurately.

Subchapter C. STANDARDS FOR HABILITATIVE AND THERAPEUTIC AGENCY HOMES

40 TAC §720.136

The amendment is adopted under the Human Resources Code, §40.029, which authorizes the department to propose and adopt rules to facilitate implementation of department programs; Human Resources Code, §42.042, which gives the department the authority to promulgate rules to carry out the statute and to regulate child-care facilities and homes, and child-care administrators; and Human Resources Code, §40.002, which gives the department primary responsibility for regulating child-care facilities.

The amendment implements the Human Resources Code, §§40.029, 42.042, and 40.002.

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

Filed with the Office of the Secretary of State on March 22, 2002.

TRD-200201781

Texas Department of Protective and Regulatory Services