40 TAC §48.6003
The Texas Department of Human Services (DHS) adopts an amendment
to §48.6003, in its Community Care for Aged and Disabled chapter. The
amendment is adopted with changes to the proposed text published in the August
24, 2001, issue of the
Texas Register
(26
TexReg 6285).
Justification for the amendment is to make CBA eligibility determination
more equitable. This rule change also will provide a balance between nursing
facility residents and individuals living in a community when determining
CBA eligibility.
To better implement Rider 37, and in response to public comments, DHS has
removed provisions requiring individuals to request CBA services and meet
all CBA eligibility criteria while residing in a nursing facility as a condition
to bypass the interest list, as similar provisions are included in the rules
implementing Rider 37. DHS has accordingly deleted subsection (b)(2) of this
title (referring to promoting independence). DHS has also renumbered subsection
(b)(3) of this title (referring to suspended enrollment) as (b)(2), and removed
the sentence, "During periods of suspended enrollment, those individuals who
meet the criteria specified in paragraph (2) of this subsection are placed
at the top of the interest list on a first-come, first-served basis."
The department received written comments from the Texas Association of
Home Care; United Cerebral Palsy of Texas; the Disability Policy Consortium;
and Advocacy, Incorporated. A summary of the comments and the department's
responses follows.
Comment: We believe that if a person has had to enter a nursing facility
(NF) in the past six months, that person is at high risk of institutionalization
in the future. We recommend leaving §48.6003 (b)(1)(C) language as it
is in the current rule and deleting the following sentence from §48.6003
(b)(2): "If the individual moves from a nursing facility (NF) to a community
setting before CBA enrollment, the individual is denied CBA services and his
name is added to the CBA interest list with the date he requested CBA services."
Response: DHS disagrees. At this time, there are approximately 40,000 individuals
registered on the CBA interest list. Currently an individual can go into an
NF and bypass these 40,000 individuals. This amendment will provide a balance
between NF residents and individuals living in a community who may also be
at a high risk for institutionalization when determining CBA eligibility.
If the Medicaid-enrolled NF resident continues to reside in the NF until he
is determined eligible for CBA services, he can receive the CBA services in
the community, and due to Rider 37, the funds for care will follow the client.
Comment: We believe that the concept of resources/slots is not relevant.
We also believe that everyone in an NF who chooses to get out should get a
CBA position, not just go to the top of the interest list, particularly because
the state is already spending money on the person in the NF. With the implementation
of Rider 37, the need for any change in the CBA eligibility rule is unnecessary,
as an individual residing in an NF will be able to utilize Rider 37 and move
into the community. This could be added in §48.6003(b)(2).
Response: DHS agrees that every NF resident whose stay is being paid by
Medicaid has the option to leave the NF and receive CBA services if the individual
meets the CBA eligibility criteria. Since DHS implemented Rider 37 in September
2001, there is no need for the proposed substitute language included under
(b)(2) of this section (pertaining to Medicaid eligible nursing facility residents
being able to be approved for CBA services). We are deleting the proposed
language. Proposed rules to implement Rider 37 were presented at the September
2001 Board meeting, with no negative comments. Since September 2001, DHS has
implemented Rider 37 through a policy interpretation. As NF Medicaid enrolled
residents have transferred directly into the CBA program, their CBA services
are being funded from the NF budget. If the individual leaves the NF prior
to eligibility determination and receipt of Medicaid funds, the money does
not follow the client. The individual will be registered on the CBA interest
list in the date order he requested services.
Comment: Please clarify that enrollment into CBA is limited to the number
of participants approved by CMS or the availability of state funding, with
the exception of individuals who use Rider 37 to transfer from a nursing facility
to CBA community services. We recommend the proposed rule language reference
Rider 37, which gives the department the ability to transfer funds from the
nursing facility line item to the community care budget. As noted above, this
could be added in §48.6003(b)(2).
Response: DHS disagrees, and feels there is no need to clarify that enrollment
into CBA is limited to the number of participants approved by CMS or the availability
of state funding in the proposed rule. This is already clearly stated in the §48.6003(b).
DHS has already implemented Rider 37.
Comment: The department's own data show less than an estimated 1% of persons
enrolled in the CBA program potentially abuse the bypass rule to gain entry
into CBA. The bypass rule is working as it should and there is no need to
create additional restrictions.
Response: DHS disagrees. Rider 37 already allows Medicaid enrolled NF residents
to transfer from the NF to the CBA program. DHS believes it is not equitable
for an individual to bypass the interest list unless he is an NF resident
enrolled in Medicaid.
Comment: Please retain the current bypass criteria, as they focus on diversion
and have proven effective. People who have resided in nursing homes within
the last six months should be able to go to the top of the CBA waiting list
to target the state's limited slots to those most at risk of nursing home
placement. Diversion is more humane, less disruptive, more effective, and
cheaper than de-institutionalization.
Response: DHS disagrees that allowing individuals to bypass the interest
list ahead of all the individuals on the interest list targets those most
at risk of nursing home placement. Many of the 40,000 individuals on the interest
list living in the community may also have a high risk of being institutionalized.
Comment: We strongly oppose any eligibility that would require a person
to live in a nursing home for a designated period of time before being able
to access a waiver program.
Response: DHS agrees that a person should not be required to live in a
nursing home for a designated period of time before being able to access a
waiver program. Rider 37 would require the individual to continue living in
the NF only until his eligibility for CBA is approved. If the individual moves
back to the community before being a Medicaid recipient in the NF, the money
will not follow the individual. If individuals are allowed to bypass the interest
list without the money following them, they will take a CBA slot, thereby
denying those individuals who have been waiting for CBA services.
Comment: The proposed revision under §48.6003(b)(3), which enables
the department to suspend enrollment, will contribute to unnecessary institutionalization.
Response: DHS agrees that suspending enrollment into the CBA program when
appropriated funds for the CBA program are exhausted will lead to institutionalization
of some individuals. Without appropriated funds, DHS cannot enroll individuals
into any Texas Department of Human Services program.
The amendment 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 amendment implements the Human Resources Code, §§22.001 -
22.030 and §§32.001 - 32.042.
§48.6003.Client Eligibility Criteria.
(a)
To be determined eligible by the Texas Department of Human
Services (DHS) for the 1915(c) Medicaid waiver program provided as an alternative
to care in a nursing facility, an applicant must:
(1)
be age 21 or above;
(2)
meet the level-of-care criteria for medical necessity for
nursing facility care in accordance with §19.2409 and §19.2410 of
this title (relating to General Qualifications for Medical Necessity Determinations
and Criteria Specific to a Medical Necessity Determination);
(3)
meet the requirements for Preadmission Screening and Annual
Resident Review (PASARR) and be determined appropriate for nursing facility
care;
(4)
choose home and community-based waiver services as an alternative
to nursing facility placement based on an informed choice with approval conditional
on feasible alternatives available under the waiver in accordance with 42
Code of Federal Regulations §441.302(d)(1);
(5)
have an individual plan of care for waiver services as
specified in §48.6006 of this title (relating to Individual Plan of
Care for Waiver Services) whose cost does not exceed 100% of the individual's
actual Texas Index for Level of Effort payment rate;
(6)
meet the financial eligibility criteria for waiver services
as specified in §48.6007 of this section (relating to Financial Eligibility
Criteria); and
(7)
have ongoing needs for waiver services whose projected
costs, as indicated on the Individual Plan of Care, do not exceed the maximum
service ceilings set for those services as listed below:
(A)
Adaptive Aids and Medical Supplies service category cannot
exceed $10,000 per individual per Individual Plan of Care year without approval
by the waiver manager;
(B)
minor home modifications service category cannot exceed
$7500 per individual without approval by the waiver manager;
(C)
respite care cannot exceed 30 days per individual per Individual
Plan of Care year without approval by the waiver manager;
(8)
receive waiver services within 30 days after waiver eligibility
is established and
(9)
reside either in his own home or in a licensed personal
care facility or adult foster care home contracted with the Texas Department
of Human Services to provide Community Based Alternatives (CBA) services.
CBA services will not be delivered to residents of hospitals, nursing facilities,
ICF-MR facilities, or unlicensed personal care facilities.
(10)
meet two or more of the criteria for nursing home risk,
as specified in the Resident Assessment Instrument-Home Care Assessment for
Nursing Home Risk as revised in April 1996 and summarized as follows:
(A)
needs assistance with one or more of the activities of
dressing, personal hygiene, eating, toilet use, or bathing;
(B)
has a functional decline in the past 90 days;
(C)
has a history of a fall two or more times in past 180 days;
(D)
has a neurological diagnosis of Alzheimer's, Head Trauma,
Multiple Sclerosis, Parkinsonism, or Dementia;
(E)
has a history of nursing facility placement within the
last five years;
(F)
has multiple episodes of urine incontinence daily; and
(G)
goes out of one's residence one or fewer days a week.
(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)
Eligible individuals are to be enrolled from the CBA interest
list on a "first-come, first-served" basis, except for individuals who meet
the following criteria:
(A)
children age 21 who are no longer eligible for the Medically
Dependent Children Program (MDCP); or
(B)
children age 21 who have been receiving nursing services
through the Texas Health Steps Program and are no longer eligible.
(2)
DHS suspends enrollment into the CBA program as long as
the census of program participants exceeds funded limits. For purposes of
this section, the census is considered to have exceeded funded limits when
DHS determines that the combination of existing caseloads and individuals
described in paragraphs (1)(A) and (1)(B) of this subsection exceed funded
limits within the current budget period.
(c)
Participants may be enrolled in only one waiver program
at a time.
(d)
The nursing facility risk criteria will be applied at the
time of the first annual re-assessment for current Community Based Alternatives
Program participants and at the time of initial enrollment for all new applicants.
(e)
Individuals transferring from a nursing facility or the
Medically Dependent Children Program are exempt from subsection (a)(10) of
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 February 12, 2002.
TRD-200200894
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Effective date: March 4, 2002
Proposal publication date: August 24, 2001
For further information, please call: (512) 438-3734