TITLE 40.SOCIAL SERVICES AND ASSISTANCE

Part 1. TEXAS DEPARTMENT OF HUMAN SERVICES

Chapter 19. NURSING FACILITY REQUIREMENTS FOR LICENSURE AND MEDICAID CERTIFICATION

Subchapter P. PHARMACY SERVICES

40 TAC §19.1501

The Texas Department of Human Services (DHS) proposes to amend §19.1501, concerning pharmacy services, in its Nursing Facility Requirements for Licensure and Medicaid Certification chapter. The purpose of the amendment is to provide additional protection for residents during the implementation of Senate Bill 355, 77th Legislature, which requires nursing facility residents to give informed consent before psychoactive medication is administered. This rule requires the federally mandated monthly drug regimen reviews to be kept in the resident's medical record, which will facilitate communication between the pharmacist and the physician, regarding concerns about prescribing practices.

James R. Hine, Commissioner, has determined that for the first five-year period the section is in effect, there will be no fiscal implications for state or local government as a result of enforcing or administering the section.

Mr. Hine also has determined that for each year of the first five years the section is in effect, the public benefit anticipated as a result of enforcing the section will be greater protection of residents from inappropriate administration of psychoactive drugs. There will be no adverse economic effect on small or micro businesses because current rules require the monthly pharmacist drug regimen review. This rule simply requires the review to be kept in the resident's medical record, where it will be more accessible to the physician. There is no anticipated economic cost to persons who are required to comply with the proposed section. There is no anticipated effect on local employment in geographic areas affected by this section.

Questions about the content of this proposal may be directed to Susan Syler at (512) 438- 3111 in DHS's Long Term Care-Policy section. Written comments on the proposal may be submitted to Supervisor, Rules and Handbooks Unit-177, 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 amendment is proposed 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, §242.037.

§19.1501.Pharmacy Services.

A licensed-only facility must assist the resident in obtaining routine drugs and biologicals and make emergency drugs readily available, or obtain them under an agreement described in §19.1906 of this title (relating to Use of Outside Resources). A Medicaid-certified facility must provide routine and emergency drugs and biologicals to its residents, or obtain them under an agreement described in §19.1906 of this title (relating to Use of Outside Resources). See also §19.901(12) and (13) of this title (relating to Quality of Care) for information concerning drug therapy and medication errors.

(1)-(3) (No change.)

(4) Drug regimen review.

(A) The drug regimen of each resident must be reviewed at least once a month by a licensed pharmacist. The consultant pharmacist's drug regimen review must be maintained in the resident's clinical record.

(B) (No change.)

(5)-(6) (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 April 12, 2002.

TRD-200202258

Paul Leche

General Counsel, Legal Services

Texas Department of Human Services

Earliest possible date of adoption: May 26, 2002

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

Chapter 48. COMMUNITY CARE FOR AGED AND DISABLED

Subchapter J. 1915(c) MEDICAID HOME AND COMMUNITY-BASED WAIVER SERVICES FOR AGED AND DISABLED ADULTS WHO MEET CRITERIA FOR ALTERNATIVES TO NURSING FACILITY CARE

40 TAC §48.6003

The Texas Department of Human Services (DHS) proposes to amend §48.6003, concerning client eligibility criteria, in its Community Care for Aged and Disabled chapter. The purpose of the amendment is to comply with rider 37 to the DHS appropriations in the Appropriations Act, 77th Legislative Session, that allows DHS to transfer facility funds to the Community Care program to cover the cost of the shift in services. The section also establishes the basis for approving or denying requests for changes in the waiver client's service plan.

James R. Hine, Commissioner, has determined that for the first five-year period the proposed section will be in effect, there will be no fiscal implications for state or local government as a result of enforcing or administering the section.

Mr. Hine also has determined that, for each year of the first five years the section is in effect, the public benefit anticipated as a result of adoption of the proposed section will be that a Texas nursing facility (NF) resident will not have to continue living in a NF until funding is appropriated in the Community Care budget for Medicaid waiver services, if he is a Medicaid- eligible NF resident and is approved for Community Care services while residing in a NF. There will be no effect on small or micro businesses as a result of enforcing or administering the section, because the proposal will allow individuals who qualify for Medicaid payment to be served in the community. There is no anticipated economic cost to persons who are required to comply with the proposed section. There is no anticipated effect on local employment in geographic areas affected by this section.

Questions about the content of this proposal may be directed to Gerardo Cantu at (512) 438-3693 in DHS's Community Care Waiver section. Written comments on the proposal may be submitted to Supervisor, Rules and Handbooks Unit-117, 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 this rule. Accordingly, the department is not required to complete a takings impact assessment regarding this rule.

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

§48.6003.Client Eligibility Criteria.

(a) (No change.)

(b) Enrollment in the Community Based Alternatives (CBA) program is limited to the number of participants approved by the Centers for Medicare and Medicaid Services (CMS) or the availability of state funding.

(1) - (2) (No change.)

(3) Individuals residing in a Texas nursing facility who are enrolled in Medicaid will be approved for Community Care services if they request services while residing in a Texas nursing facility and meet all eligibility criteria for Community Care services. If the individual is discharged from the nursing facility for a community setting before being determined eligible for Medicaid nursing facility services and Community Care services, the individual will be denied Community Care services unless these services are part of an entitlement program. Upon admission to or discharge from the nursing facility, DHS must make information on Community Care services, including Medicaid waiver services, available to the nursing facility resident.

(c) - (e) (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 April 12, 2002.

TRD-200202300

Paul Leche

General Counsel, Legal Services

Texas Department of Human Services

Earliest possible date of adoption: May 26, 2002

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