Part 1.
TEXAS DEPARTMENT OF HUMAN SERVICES
Chapter 42.
MEDICAID WAIVER PROGRAM FOR PEOPLE WHO ARE DEAF-BLIND WITH MULTIPLE DISABILITIES
40 TAC §42.6, §42.12
The Texas Department of Human Services (DHS) adopts an amendment
to §42.6 and new §42.12, in its Medicaid Waiver Program for People
who are Deaf-Blind with Multiple Disabilities chapter. The sections are adopted
with changes to the proposed text published in the November 16, 2001, issue
of the
Texas Register
(26 TexReg 9369).
DHS is adopting related policy in Chapters 48 and 50 in this issue of the
Justification for the amendment and new section is to comply with riders
7(b)(2) and 37 to the DHS appropriations in the Appropriations Act, 77th Legislative
Session, that allow DHS to transfer nursing facility funds to the Community
Care program to cover the cost in the shift in services. These riders require
DHS to not disallow or jeopardize community services for individuals currently
receiving services under Medicaid waivers if those services are required for
the individual to live in the most integrated setting possible. The sections
also establish the basis for approving or denying requests for changes in
the waiver client's service plan.
DHS received comments from United Cerebral Palsy of Texas, the Arc of Texas,
the Coalition of Texans with Disabilities, and the Disability Policy Consortium.
A summary of the comments and the department's responses follow.
Comment: All four agencies recommended changes to the proposed rules concerning
Rider 7. They requested language clarifying how changes to the waiver service
plan are handled. Also suggested were ways to avoid jeopardizing community
services if the estimated cost of the services exceeds the cost ceiling.
Response: DHS agrees and changed §§42.12.
Comment: Regarding the Deaf-Blind waiver, a comment was received that §42.6,
concerning planning for and provision of services, should state that enrollment
is limited by the availability of state funding.
Response: DHS agrees and has added a statement to the rule that enrollment
is limited to the availability of state funding.
Comment: All four agencies recommended changes to the proposed rules, for
all four waiver programs, regarding the wording of the Rider 37 rule. They
suggested that in addition to providing information to nursing facility new
admissions and nursing facility discharges on Community Care services, an
application for Community Care services also be provided.
Response: DHS disagrees. DHS does not require an application for Community
Care services. Individuals may request Community Care services at any time
and are placed on an interest list on a first-come, first-served basis, if
they request waiver services. If other Community Care entitlement services
are requested, the eligibility process will begin. In addition, Texas Health
and Human Services Commission (HHSC) §351.15 requires DHS to provide
each long-term care client information about long-term care services appropriate
to his needs. DHS complies with this rule.
Comment: Two agencies asked what the appeal process would look like if
the Community Based Alternatives (CBA) or the Consolidated Waiver Program
(CWP) case manager denies the client's request to exceed the individual cost
ceiling.
Response: The process is the same as in any other adverse action against
the client. The client is given a written notice of the denial on the denial
of services form, which also explains a client's appeal rights. The client
may appeal the denial verbally to the case manager or by completing the back
of the denial of service form and sending it back to the case manager. The
DHS hearing officer then sets a hearing date and informs the client of the
date. The hearing officer makes client rights available to all clients requesting
a fair hearing.
In addition to the changes indicated above, DHS made minor editorial changes
to §42.6 and §42.12 in order to improve clarity and understanding.
The amendment and new section are adopted under the Human Resources
Code, Title 2, Chapters 22 and 32, which authorizes DHS 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 and new section implement the Human Resources Code, §§22.001-
22.030 and §§32.001-32.042.
§42.6.Planning for and Provision of Services.
(a)
Applicants must have an individual plan of care for home
and community-based services, developed by the interdisciplinary team composed
of a case manager and other appropriate professional staff who meet the qualifications
specified in the waiver request. The individual plan of care for home and
community-based services must specify the type of waiver services required
to keep an individual in the community, the units of waiver services, and
their frequency and duration. The individual plan of care for home and community-based
services must be signed and dated by the interdisciplinary team prior to implementation.
The interdisciplinary team must certify in writing that the waiver program
services authorized on the individual plan of care are necessary to avoid
ICF-MR/RC VIII institutional placement and are appropriate to meet the applicant's
needs in the community.
(b)
The individual plan of care for home and community-based
services must be approved by the Texas Department of Human Services (DHS)
and updated by the provider at least annually. Any gaps in the coverage periods
of the individual plan of care approved by DHS result in loss of payment to
the provider.
(c)
The estimated annual cost of the applicant's individual
plan of care for a period of 364 days from the initial enrollment for home
and community-based services must not exceed 115% of the average cost of institutional
care in an ICF-MR/RC VIII facility.
(d)
Enrollment into this waiver program is limited to the number
of participants approved by the Centers for Medicare and Medicaid Services
(CMS) or the availability of state funding. When the number of participants
can be increased, DHS DB-MD waiver program will analyze need based on number
of Project Link referral forms received. At that point, a Request for Proposals
(RFP) will be issued statewide announcing the need for providers to serve
particular counties or multiple counties where clients desire services. A
team of experts will evaluate received proposals based on approved common
standards. A contract will be signed by the approved providers and DHS, detailing
standards to be followed in provision of home and community based services.
Potential participants on the DHS centralized waiting list will be notified
of qualified providers who can serve them in the location they desire. Notification
of service availability to potential participants will be in order of the
date DHS receives the Project Link Referral form. The providers will likewise
be notified of those clients desiring services in their area. Once the providers
and applicants decide to begin services, the case manager employed by the
providers will establish eligibility of the clients and submit plan of care
forms to DHS.
(e)
Participants may be enrolled in only one waiver program
at a time. Participants may not receive both DB-MD waiver services and other
Medicaid community care services at the same time.
(f)
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 an 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.
§42.12.Changes in Deaf-Blind Services.
If the estimated cost of the Deaf-Blind Medicaid Waiver services necessary
to adequately meet the needs of the participant to live in the most integrated
setting in the community exceeds the Deaf-Blind Medicaid Waiver cost ceiling,
the Texas Department of Human Services (DHS) may not disallow or jeopardize
Deaf-Blind community services for that person. Requests for changes to the
participant's Individual Service Plan (ISP) will be considered if there is
a change in the participant's medical condition, functional needs or environment,
or a change in the caregiver's support/third-party resources that have been
providing services to the participant, or when a Deaf-Blind service or support
(either a new service or expansion of existing service on a temporary or long-term
basis) is needed to adequately support a participant living in the most integrated
setting in the community. If there is a need for a reimbursable waiver service
that would have caused the participant to exceed the individual cost ceiling
if purchased by the program before the implementation of Rider 7 of the 77th
Appropriations Act, this service will also be considered for approval. The
Deaf-Blind Program Consultant will make the determination to approve or deny
each request. The determination will be made on the basis of the necessity
of the requested service, the participant's disability or medical condition,
and the necessity of the service to adequately support the participant living
in the most integrated setting possible in the community.
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 April 17, 2002.
TRD-200202403
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Effective date: May 7, 2002
Proposal publication date: November 16, 2001
For further information, please call: (512) 438-3734
The Texas Department of Human Services (DHS) adopts amendments to §§48.2103,
48.2111, 48.6098, and new §48.2123 and §48.6099, in its Community
Care for Aged and Disabled chapter. The amendments to §48.2103 and §48.6098,
and new §48.2123 and §48.6099 are adopted with changes to the proposed
text published in the November 16, 2001, issue of the
Texas Register
(26 TexReg 9370). The amendment to §48.2111 is
adopted without changes to the proposed text published in the November 16,
2001, issue of the
Texas Register
(26 TexReg
9370).
DHS is adopting related policy in Chapters 42 and 50 in this issue of the
Justification for the amendments and new sections is to comply with riders
7(b)(2) and 37 to the DHS appropriations in the Appropriations Act, 77th Legislative
Session, that allow DHS to transfer nursing facility funds to the Community
Care program to cover the cost in the shift in services. These riders require
DHS to not disallow or jeopardize community services for individuals currently
receiving services under Medicaid waivers if those services are required for
the individual to live in the most integrated setting possible. The sections
also establish the basis for approving or denying requests for changes in
the waiver client's service plan.
DHS received comments from United Cerebral Palsy of Texas, the Arc of Texas,
the Coalition of Texans with Disabilities, and the Disability Policy Consortium.
A summary of the comments and the department's responses follow.
Comment: All four agencies recommended changes to the proposed rules concerning
Rider 7. They requested language clarifying how changes to the waiver service
plan are handled. Also suggested were ways to avoid jeopardizing community
services if the estimated cost of the services exceeds the cost ceiling.
Response: DHS agrees and changed §48.2123 and §48.6099.
Comment: All four agencies recommended changes to the proposed rules, for
all four waiver programs, regarding the wording of the Rider 37 rule. They
suggested that in addition to providing information to nursing facility new
admissions and nursing facility discharges on Community Care services, an
application for Community Care services also be provided.
Response: DHS disagrees. DHS does not require an application for Community
Care services. Individuals may request Community Care services at any time
and are placed on an interest list on a first-come, first-served basis, if
they request waiver services. If other Community Care entitlement services
are requested, the eligibility process will begin. In addition, Texas Health
and Human Services Commission (HHSC) §351.15 requires DHS to provide
each long-term care client information about long-term care services appropriate
to his needs. DHS complies with this rule.
Comment: Two agencies asked what the appeal process would look like if
the Community Based Alternatives (CBA) or the Consolidated Waiver Program
(CWP) case manager denies the client's request to exceed the individual cost
ceiling.
Response: The process is the same as in any other adverse action against
the client. The client is given a written notice of the denial on the denial
of services form, which also explains a client's appeal rights. The client
may appeal the denial verbally to the case manager or by completing the back
of the denial of service form and sending it back to the case manager. The
DHS hearing officer then sets a hearing date and informs the client of the
date. The hearing officer makes client rights available to all clients requesting
a fair hearing.
In addition to the changes indicated above, DHS made minor editorial changes
to §§48.2103, 48.2123, 48.6098, and 48.6099 in order to improve
clarity and understanding.
Subchapter C. MEDICAID WAIVER PROGRAM FOR PERSONS WITH RELATED CONDITIONS
40 TAC §§48.2103, 48.2111, 48.2123
The amendments and new sections are adopted under the Human
Resources Code, Title 2, Chapters 22 and 32, which authorizes DHS 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 amendments and new sections implement the Human Resources Code, §§22.001-
22.030 and §§32.001-32.042.
§48.2103.Participant Eligibility Criteria.
(a)
To be determined eligible by the Texas Department of Human
Services (DHS) for waiver program services, an applicant must:
(1)
be eligible for Supplemental Security Income (SSI) benefits;
or
(2)
have been eligible for and received SSI benefits and continue
to be eligible for Medicaid as a result of protective coverage mandated by
federal law; or
(3)
be under age 18 and reside with parents or spouses, and
(A)
be eligible for Medicaid benefits only if institutionalized,
(B)
meet the SSI criteria for disability, as documented on
the appropriate DHS forms,
(C)
meet the SSI criteria for institutional deeming,
(D)
have income and resources which meet the requirements of
the SSI program, and
(E)
receive waiver program services for persons with related
conditions; or
(4)
be an individual who would be financially eligible for
Medicaid if residing in a Medicaid- certified institution. For these individuals,
the policies specified in subparagraphs (A) and (B) apply.
(A)
Spousal impoverishment provisions.
(i)
For waiver participants with spouses who live in the community,
the income and resource eligibility requirements are determined according
to the spousal impoverishment provisions in §1924 of the Social Security
Act, and as specified in the Medicaid State Plan and subsection (a) of this
section.
(ii)
After the participant is determined to be eligible for
Medicaid, DHS determines the amount of the participant's income applicable
to payment.
(iii)
To determine the amount of the participant's income applicable
to payment, DHS uses the same methodology as if the participant were residing
in an institution, except that the personal needs allowance is equal to the
institutional cap.
(iv)
DHS applies post-eligibility treatment of income rules
to individuals eligible under a special income level, as specified in 42 Code
of Federal Regulations 435.726, for use only by states that do not use the
209(b) option. For individuals receiving home and community-based services
who are subject to the post-eligibility treatment of income rules, the Medicaid
payment to the provider for home and community-based services will be reduced
by the amount that remains after deducting the appropriate amounts from the
individual's income. The DHS Copayment Worksheet form is used to calculate
the client copayment amount.
(B)
Calculation of participant copayment.
(i)
A participant who is financially eligible based on the
special institutional income limit must share in the cost of waiver services.
The method for determining the participant copayment is specified in this
subparagraph and is documented on DHS's Medical Assistance Only Worksheet
form. When calculating the copayment amount for a participant with income
that exceeds the SSI federal benefit rate, DHS deducts the following:
(I)
the cost of the participant(s) maintenance needs, which
must equal the special institutional income limit for eligibility under the
Texas Medicaid program;
(II)
the cost of the maintenance needs of the participant's
dependent children. This amount is equivalent to the Aid to Families with
Dependent Children (AFDC) program basic monthly grant for children or for
a spouse with children, using the recognizable needs amount in the AFDC Budgetary
Allowance Chart;
(III)
the costs incurred for medical or remedial care that
are necessary, but not covered by Medicare, Medicaid, or any other third party.
This includes the cost of health insurance premiums, deductibles, and coinsurance;
and
(IV)
the cost of the maintenance needs of the participant's
spouse. This amount is equivalent to the amount of the SSI federal benefit
rate, less the spouse's own income.
(ii)
The copayment amount is the participant's remaining income
after all allowable expenses have been deducted. The copayment amount is applied
only to the cost of home and community-based services which are funded through
the Community Living Assistance and Support Services (CLASS) waiver program
and specified on the participant's individual plan of care. The copayment
amount must not exceed the cost of services actually delivered.
(iii)
Participants must pay the copayment amount to the provider
contracted to deliver authorized waiver services; or
(5)
be an individual under age 19:
(A)
for whom the Texas Department of Protective and Regulatory
Services (TDPRS) assumes financial responsibility for, in whole or in part
(not to exceed level II foster care payment), and
(B)
who is being cared for in a foster care home licensed or
certified and supervised by:
(i)
TDPRS, or
(ii)
a licensed public or private nonprofit child placing agency;
or
(6)
be a member of a family that receives Medicaid as a result
of qualifying for AFDC.
(b)
To be determined eligible by DHS for the waiver program
services, participants must also meet the following requirements:
(1)
Participants must meet the intermediate care facility for
the mentally retarded with related conditions (ICF-MR/RC VIII) level-of-care
criteria as determined by the Texas Department of Health (TDH) according to
applicable state and federal regulations, and as verified by a current level
of care assessment.
(A)
A preadmission level of care assessment by TDH expires
90 calendar days from its issuance. For participants who are enrolled in the
waiver program within 30 calendar days of discharge from an ICF-MR/RC VIII
or another waiver program provider, the current level-of-care assessment may
be used for enrollment and is valid until the expiration date on the level-of-
care assessment.
(B)
Re-evaluation of ICF-MR level-of-care criteria is performed
annually by the Texas Department of Health using the same criteria as used
initially. An initial re-evaluation of level of care must be performed no
later than 364 calendar days from the date of enrollment. Subsequent level-of-care
re-evaluations must be performed no later than 364 calendar days from the
effective date of the prior level-of-care assignment.
(C)
Any gaps in the level-of-care coverage periods result in
loss of payment to the provider.
(2)
Applicants must live in the contracted provider's geographic
catchment area or must move into the geographic catchment area within 120
days from the date the applicant's name is removed from the waiting list and
the applicant begins the Community Living Assistance and Support Services
(CLASS) enrollment process.
(3)
Applicants must have an individual plan of care for home
and community-based services, developed by the interdisciplinary team composed
of a case management service provider and other appropriate professional staff
who meet the qualifications specified in the waiver request. The individual
plan of care for home and community-based services must specify the type of
waiver services required to keep an individual in the community, the units
of waiver services, and their frequency and duration.
(A)
The individual plan of care for home and community-based
services must be signed and dated by the interdisciplinary team prior to implementation.
The interdisciplinary team must certify in writing that the waiver program
services authorized on the individual plan of care are necessary to avoid
ICF-MR/RC VIII institutional placement and are appropriate to meet the applicant's
needs in the community.
(B)
The individual plan of care for home and community-based
services must be approved by DHS and updated by the provider at least annually.
Any gaps in the coverage periods of the individual plan of care approved by
DHS result in loss of payment to the provider.
(c)
The estimated annual cost of the applicant's individual
plan of care for a period of 364 days from the initial enrollment for home
and community-base services must not exceed 125% of the average cost of institutional
care in an ICF-MR/RC VIII facility.
(d)
Enrollment into this waiver program is limited to the number
of participants approved by Centers for Medicare and Medicaid Services (CMS)
or the availability of state funding.
(e)
Participants may be enrolled in only one waiver program
at a time. Participants may not receive both CLASS waiver services and other
DHS community care services at the same time.
(f)
Individuals residing in a Texas nursing facility who are
enrolled in Medicaid will be approved for Community Care services if they
request services and meet all eligibility criteria for Community Care services.
If an individual is discharged from the nursing facility to 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.
§48.2123.Changes in Community Living Assistance and Support Services (CLASS) Services.
(a)
If the estimated cost of the CLASS services necessary to
adequately meet the needs of the participant to live in the most integrated
setting in the community exceeds the CLASS cost ceiling, the Texas Department
of Human Services (DHS) may not disallow or jeopardize CLASS community services
for that person. Requests for changes to the participant's Individual Service
Plan (ISP) will be considered for approval if there is a change in the participant's
medical condition, functional needs or environment, or a change in the caregiver's
support/third-party resources that have been providing services to the participant,
or when a CLASS service or support (either a new service or expansion of existing
service on a temporary or long-term basis) is needed to adequately support
a participant living in the most integrated setting in the community. If there
is a need for a reimbursable waiver service that would have caused the participant
to exceed the individual cost ceiling if purchased by the program before the
implementation of Rider 7 of the 77th Appropriations Act, this service will
also be considered for approval.
(b)
The interdisciplinary team will make the determination
to approve or deny each request. The determination will be made on the basis
of the necessity of the requested service, the participant's disability or
medical condition, and the necessity of the service to adequately support
the participant living in the most integrated setting possible in the community.
(c)
The CLASS DHS Program Consultant must also provide approval
for changes to the participant's ISP that cause the plan to exceed 125% of
the average cost of institutional care in an ICF MR/RC VIII facility.
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 April 17, 2002.
TRD-200202404
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Effective date: May 7, 2002
Proposal publication date: November 16, 2001
For further information, please call: (512) 438-3734
40 TAC §48.6098, §48.6099
The amendment and new section are adopted under the Human
Resources Code, Title 2, Chapters 22 and 32, which authorizes DHS 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 and new section implement the Human Resources Code, §§22.001-
22.030 and §§32.001-32.042.
§48.6098.Circumstances Requiring Denial of Services with Advance Notice.
(a)
If one or more of the circumstances specified in paragraphs
(1) through (10) of this subsection occur, the Community Based Alternatives
(CBA) provider agency must provide written documentation to the Texas Department
of Human Services (DHS) case manager within two DHS workdays of the occurrence
to support a recommendation for denial of CBA services. Advance notice is
defined in §48.6002 of this title (relating to Community Based Alternatives
(CBA) Definitions).
(1)
The participant leaves the state for more than 90 days.
DHS will retain authority to extend this time in extraordinary circumstances.
(2)
The participant has been legally confined or has resided
in an institutional setting for longer than 120 days. An institution includes
legal confinement, an acute care hospital, state hospital, rehabilitation
hospital, state school, nursing home, or intermediate care facility for persons
with mental retardation/related conditions (ICF-MR/RC). DHS will retain authority
to extend this time in extraordinary circumstances.
(3)
The participant is not financially eligible for Medicaid
benefits.
(4)
The participant does not meet the medical necessity criteria
(MN) for nursing facility care.
(5)
Home and community support services providers have refused
to serve the participant on the basis of a reasonable expectation that the
participant's medical and nursing needs cannot be met adequately in the participant's
residence.
(6)
The participant or someone in the participant's home refuses
to comply with mandatory program requirements, including the determination
of eligibility and/or the monitoring of service delivery.
(7)
The participant fails to pay his room and board expenses
or copayment in the adult foster care (AFC) or assisted living/residential
care (AL/RC) setting.
(8)
The participant fails to pay his qualified income trust
copayment.
(9)
The situation, participant, or someone in the participant's
home is hazardous to the health and safety of the service provider, but there
is no immediate threat to the health or safety of the provider.
(10)
The participant or someone in the participant's home openly
uses illegal drugs or has illegal drugs readily available within sight of
the service provider.
(b)
The supporting documentation must include a description
of the interventions that have occurred prior to the decision to recommend
the denial of services. The documentation must justify the reasons for denial
and describe the strategies, outcomes, and negotiations with the participant
in accordance with the program policies in the provider manual.
(c)
If the DHS case manager determines the documentation supports
initiation of denial, the case manager provides written notification of denial
to the participant and CBA provider agency within two DHS workdays. The written
notification must specify the reason for denial, the effective date of denial,
the regulatory reference, and provide written notice of the right to appeal.
(d)
If the participant appeals the notification of denial within
10 days of written notification, the CBA provider agency continues CBA services
until notification of the decision by the DHS hearing officer. The CBA provider
agency must not reduce waiver services until the outcome of the appeal is
known.
§48.6099.Changes in CBA Services.
(a)
If the estimated cost of the Community Based Alternatives
(CBA) services necessary to adequately meet the needs of the participant to
live in the most integrated setting in the community exceeds the CBA cost
ceiling, the Texas Department of Human Services (DHS) may not disallow or
jeopardize CBA community services for that person. Requests for changes to
the participant's Individual Service Plan (ISP) will be considered for approval
if there is a change in the participant's medical condition, functional needs
or environment, or a change in the caregiver's support/third-party resources
that have been providing services to the participant, or when a CBA service
or support (either a new service or expansion of existing service on a temporary
or long-term basis) is needed to adequately support a participant living in
the most integrated setting in the community. If there is a need for a reimbursable
waiver service that would have caused the participant to exceed the individual
cost ceiling if purchased by the program before the implementation of Rider
7 of the 77th Appropriations Act, this service will also be considered for
approval. The DHS case manager will make the determination to approve or deny
the request in consultation with the DHS registered nurse, as needed.
(b)
The determination will be made on the basis of the necessity
of the requested service, the participant's disability or medical condition,
and the necessity of the service to adequately support the participant living
in the most integrated setting possible in the community.
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 April 17, 2002.
TRD-200202405
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Effective date: May 7, 2002
Proposal publication date: November 16, 2001
For further information, please call: (512) 438-3734
40 TAC §§50.4, 50.36, 50.48, 50.50
The Texas Department of Human Services (DHS) adopts amendments
to §§50.4, 50.36, 50.48, and new §50.50, in its §1915(c)
Consolidated Waiver Program chapter. The amendments and new section are adopted
with changes to the proposed text published in the November 16, 2001, issue
of the
Texas Register
(26 TexReg 9372).
DHS is adopting related policy in Chapters 42 and 48 in this issue of the
Justification for the amendments and new section is to comply with riders
7(b)(2) and 37 to the DHS appropriations in the Appropriations Act, 77th Legislative
Session, that allow DHS to transfer nursing facility funds to the Community
Care program to cover the cost in the shift in services. These riders require
DHS to not disallow or jeopardize community services for individuals currently
receiving services under Medicaid waivers if those services are required for
the individual to live in the most integrated setting possible. The sections
also establish the basis for approving or denying requests for changes in
the waiver client's service plan.
DHS received comments from United Cerebral Palsy of Texas, the Arc of Texas,
the Coalition of Texans with Disabilities, and the Disability Policy Consortium.
A summary of the comments and the department's responses follow.
Comment: All four agencies recommended changes to the proposed rules concerning
Rider 7. They requested language clarifying how changes to the waiver service
plan are handled. Also suggested were ways to avoid jeopardizing community
services if the estimated cost of the services exceeds the cost ceiling.
Response: DHS agrees and changed §50.50.
Comment: All four agencies recommended changes to the proposed rules, for
all four waiver programs, regarding the wording of the Rider 37 rule. They
suggested that in addition to providing information to nursing facility new
admissions and nursing facility discharges on Community Care services, an
application for Community Care services also be provided.
Response: DHS disagrees. DHS does not require an application for Community
Care services. Individuals may request Community Care services at any time
and are placed on an interest list on a first-come, first-served basis, if
they request waiver services. If other Community Care entitlement services
are requested, the eligibility process will begin. In addition, Texas Health
and Human Services Commission (HHSC) §351.15 requires DHS to provide
each long-term care client information about long-term care services appropriate
to his needs. DHS complies with this rule.
Comment: Two agencies asked what the appeal process would look like if
the Community Based Alternatives (CBA) or the Consolidated Waiver Program
(CWP) case manager denies the client's request to exceed the individual cost
ceiling.
Response: The process is the same as in any other adverse action against
the client. The client is given a written notice of the denial on the denial
of services form, which also explains a client's appeal rights. The client
may appeal the denial verbally to the case manager or by completing the back
of the denial of service form and sending it back to the case manager. The
DHS hearing officer then sets a hearing date and informs the client of the
date. The hearing officer makes client rights available to all clients requesting
a fair hearing.
Comment: A comment regarding §50.4 suggested that a particular slot
that is filled by a person coming to the CWP from a nursing facility should
be based on what the individual is eligible for, not the last institutional
setting in which he resided.
Response: DHS disagrees. If a Rider 37 client is enrolled in the CWP, he
will not utilize a CWP slot, since the money follows the client from the nursing
facility into the CWP.
In addition to the changes indicated above, DHS made minor editorial changes
to §§50.4, 50.36, 50.48, and 50.50 in order to improve clarity and
understanding.
The amendments and new section are adopted under the Human Resources
Code, Title 2, Chapters 22 and 32, which authorizes DHS 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 amendments and new section implement the Human Resources Code, §§22.001-
22.030 and §§32.001-32.042.
§50.4.Participant Eligibility Criteria.
(a)
To be determined eligible by the Texas Department of Human
Services (DHS) for Consolidated Waiver Program (CWP) services, an applicant
or participant must:
(1)
live in the pilot area;
(2)
meet the financial eligibility criteria as defined in §50.6
of this title (relating to Financial Eligibility Criteria);
(3)
not participate in other §1915(c) Medicaid waiver
programs;
(4)
have an individual service plan for home and community-based
services developed by the interdisciplinary team (IDT). The individual service
plan (ISP) for home and community-based services must specify the type of
waiver services required to keep an individual in the community, the units
of waiver services, and their frequency and duration as defined in §50.16
of this title (relating to Individual Service Plan);
(5)
have an ISP for home and community-based services with
an estimated annual cost that does not exceed:
(A)
125% of the average aggregate cost of intermediate care
facilities for individuals with mental retardation (ICF-MR) Level I, V, VI,
and VIII for individuals who meet the ICF-MR level of care in accordance with §50.8(a)(2)
of this title (relating to Individual Level-of-Care Criteria); or
(B)
150% of the individual's actual Texas Index for Level of
Effort (TILE) payment rate for individuals with a nursing facility level-of-care
in accordance with §50.8(a)(1) of this title (relating to Individual
Level-of-Care Criteria);
(6)
meet the level-of-care criteria as described in §50.8
of this title (relating to Individual Level-of-Care Criteria);
(7)
have ongoing needs for waiver services whose projected
costs, as indicated on the ISP, do not exceed the maximum service ceilings
that follow:
(A)
adaptive aids and medical supplies service category cannot
exceed $10,000 per ISP plan year with DHS maintaining the right to exception;
(B)
minor home modifications service category cannot exceed
$7500 per individual per 7 years until age 21; then the minor home modifications
service category cannot exceed $7500 (lifetime maximum) with a maximum of
$300 for repairs per ISP year thereafter;
(C)
respite care cannot exceed 45 days per individual per ISP
year with DHS maintaining the right to exception; and
(D)
dental care cannot exceed $1000 per ISP year;
(8)
receive waiver services within 30 days after waiver eligibility
is determined;
(9)
meet the re-evaluation of institutional level-of-care criteria
as performed annually by DHS using the same criteria as used initially;
(10)
reside in his own home, in a licensed assisted living
facility, in an adult foster care home, 24-hour residential habilitation or
family surrogate services setting contracted with DHS to provide CWP services,
or in a foster home that meets the requirements for foster homes in accordance
with 40 TAC §700.1501 (concerning Foster and Adoptive Home Development).
CWP services will not be delivered to residents of hospitals, nursing facilities,
ICF-MR facilities, or unlicensed assisted living facilities unless the facility
is exempt in accordance with §50.30 of this title (relating to 24-Hour
Residential Habilitation) as pertains to provider requirements for 24-hour
residential habilitation; and
(11)
choose waiver services as an alternative to institutional
care.
(b)
A preadmission level of care assessment expires 120 calendar
days from its issuance. For participants who are enrolled in the waiver program
within 30 calendar days of discharge from an institution, the current level-of-care
assessment may be used for enrollment and is valid until the expiration date
on the approved ISP.
(c)
Enrollment into this waiver program is limited to the number
of participants approved by the Centers for Medicare and Medicaid Services
(CMS) and funded by the State of Texas.
(d)
Enrollment in the pilot is restricted to 200 participants
with the following slot allocation:
(1)
50 slots for adults who meet the requirements for nursing
facility care from the Community Based Alternatives (CBA) interest list;
(2)
50 slots for children who meet the requirements for nursing
facility care from the Medically Dependent Children Program (MDCP) interest
list;
(3)
25 slots for adults with mental retardation who meet the
requirements for ICF-MR care level I from the Home and Community Based Services
(HCS) interest list;
(4)
25 slots for children with mental retardation who meet
the requirements for ICF-MR care level I from the HCS interest list;
(5)
25 slots for adults with related conditions or developmental
disabilities who meet the requirements for ICF-MR care level VIII from the
CLASS interest list, with one of these slots specifically targeted to an individual
who is deaf-blind with multiple disabilities from the Deaf Blind Multiple
Disabilities (DBMD) interest list; and
(6)
25 slots for children with related conditions or developmental
disabilities who meet the requirements for ICF-MR care level VIII from the
CLASS interest list, with one of these slots specifically targeted to an individual
who is deaf-blind with multiple disabilities from the DBMD interest list.
(e)
If the funding for CWP changes, the ratios for slot allocation
will remain the same.
(f)
For purposes of slot allocation, HCS means TDMHMR waiver
currently operating in the pilot area.
(g)
An individual who resides in a Texas nursing facility and
is enrolled in Medicaid will be approved for Community Care services if the
individual requests services while residing in a Texas nursing facility and
meets all eligibility requirements for Community Care services.
(1)
If the individual is discharged into the community before
being determined eligible to receive nursing facility Medicaid and Community
Care services, the individual will be denied Community Care services unless:
(A)
The individual is next in line to fill a CWP slot as outlined
in §50.32 of this title (relating to Maintenance of Interest Lists) and
there is an opening within the number approved by CMS with available state
funding; or
(B)
The individual has requested Community Care services that
are part of an entitlement program.
(2)
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.
§50.36.Circumstances Requiring Denial of Services with Advance Notice.
(a)
Advance notice is a statement of the action the state intends
to take provided in writing to the individual or the individual's authorized
representative. Advance notice advises them of the right to a hearing, the
method by which a hearing may be obtained, and that the individual may represent
himself, or use legal counsel, a relative, a friend, or other spokesperson.
The Texas Department of Human Services (DHS) must mail a notice to the participant
at least 12 days before the day of action.
(b)
The Consolidated Waiver Program (CWP) provider agency must
provide written documentation to the DHS case manager within two DHS workdays
of the occurrence to support a recommendation for denial of CWP services,
if one or more of the circumstances occurs:
(1)
the participant leaves the pilot area for more than 90
days. DHS retains the authority to extend this time in extraordinary circumstances;
(2)
the participant has been legally confined or has resided
in an institutional setting for longer than 120 days. An institution includes
legal confinement, an acute-care hospital, a state hospital, a rehabilitation
hospital, a state school, a nursing home, or an intermediate-care facility
for persons with mental retardation/related conditions (ICF-MR/RC). DHS will
retain authority to extend this time in extraordinary circumstances;
(3)
the participant is not financially eligible for Medicaid
benefits;
(4)
the participant does not meet the individual level-of-care
criteria as set out in §50.8 of this title (relating to Individual Level-of-Care
Criteria);
(5)
Home and community support services agencies providers
have refused to serve the participant on the basis of a reasonable expectation
that the participant's medical and nursing needs cannot be met adequately
in the participant's residence;
(6)
the participant or someone in the participant's home refuses
to comply with mandatory program requirements, including the determination
of eligibility and/or the monitoring of service delivery;
(7)
the participant fails to pay his room and board expenses
or copayment in the adult foster care, assisted living/residential care, 24-hour
residential habilitation, or family surrogate services setting;
(8)
the participant fails to pay his qualified income trust
copayment;
(9)
the situation, participant, or someone in the participant's
home is hazardous to the health and safety of the service provider, but there
is no immediate threat to the health or safety of the provider; or
(10)
the participant or someone in the participant's home openly
uses illegal drugs or has illegal drugs readily available within sight of
the service provider.
(c)
The supporting documentation must include a description
of the interventions that have occurred before the decision to recommend the
denial of services. The documentation must justify the reasons for denial
and describe the strategies, outcomes, and negotiations with the participant
in accordance with the program policies outlined in CWP policy letters or
the CWP provider manual.
(d)
If the DHS case manager determines the documentation supports
initiation of denial, the case manager provides written notification of denial
to the participant and CWP provider agency within two DHS workdays of receipt
of the provider's written recommendation for denial. The written notification
must specify the reason for denial, along with the regulatory reference, the
effective date of denial, and provide written notice of the right to appeal.
(e)
If the participant appeals the notification of denial within
10 days of receiving written notification, the CWP provider agency continues
CWP services until notification of the decision by the DHS hearing officer.
The CWP provider agency must not reduce waiver services until the outcome
of the appeal is known.
§50.48.Utilization Review.
(a)
The Texas Department of Human Services (DHS) will review
a proposed Individual Service Plan (ISP) and supporting documentation specified
in §50.16 of this title (relating to Individual Service Plan for Waiver
Services) upon receipt of a proposed ISP having a cost that exceeds 100% of:
(1)
the Nursing Facility Texas Index for Level of Effort for
individuals who meet the level-of-care criteria for medical necessity for
nursing facility care in accordance with §50.8(a)(1) of this title (relating
to Individual Level of Care Criteria); or
(2)
the estimated annualized average per capita cost for Intermediate
Care Facility for Individuals with Mental Retardation (ICF/MR) services for
individuals who meet the level-of-care criteria for an ICF/MR in accordance
with §50.8(a)(2) of this title (relating to Individual Level of Care
Criteria).
(b)
DHS will review the proposed ISP to determine if the type
and amount of CWP program services specified in the ISP are appropriate and
supported by documentation specified in §50.16 of this title (relating
to Individual Service Plan). After reviewing the proposed ISP and supporting
documentation, DHS may request additional documentation. DHS will review any
additional documentation submitted in accordance with its request. DHS may
modify an ISP based on its review and approve the proposed ISP or send written
notification that the proposed ISP has been approved with modifications, or
DHS may deny an applicant CWP services due to the proposed ISP exceeding the
cost ceiling as defined in §50.4(a)(5)(A)-(B) of this chapter (relating
to Participant Eligibility Criteria).
§50.50.Changes in Consolidated Waiver Program (CWP) Services.
(a)
If the estimated cost of the CWP services necessary to
adequately meet the needs of the participant to live in the most integrated
setting in the community exceeds the CWP cost ceiling, the Texas Department
of Human Services (DHS) may not disallow or jeopardize CWP community services
for that person. Requests for changes to the participant's Individual Service
Plan (ISP) will be considered for approval if there is a change in the participant's
medical condition, functional needs or environment, or in the caregiver's
support/third-party resources that have been providing services to the participant,
or when a CWP service or support (either a new service or expansion of existing
service on a temporary or long-term basis) is needed to adequately support
a participant living in the most integrated setting in the community.
(b)
The DHS case manager will make the determination to approve
or deny the request, in consultation with the DHS registered nurse, as needed,
and will refer to §50.48 of this title (related to Utilization Review),
if appropriate.
(c)
The determination will be made on the basis of the necessity
of the requested service, the participant's disability or medical condition,
and the necessity of the service to adequately support the participant living
in the most integrated setting possible in the community.
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 April 17, 2002.
TRD-200202406
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Effective date: May 7, 2002
Proposal publication date: November 16, 2001
For further information, please call: (512) 438-3734
Subchapter F. ENFORCEMENT
40 TAC §97.602
The Texas Department of Human Services (DHS) adopts an amendment
to §97.602 without changes to the proposed text published in the March
15, 2002, issue of the
Texas Register
(27
TexReg 1994).
Justification for the amendment is to correct an error in the adoption
published in the November 9, 2001, issue of the
Texas Register
(26 TexReg 9216).
DHS received no comments regarding adoption of the amendment.
The amendment is adopted under the Health and Safety Code, §142.017,
which provides DHS with the authority to adopt rules relating to administrative
penalties imposed on home and community support services agencies (HCSSAs).
The amendment implements the Health and Safety Code, §142.017.
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 April 19, 2002.
TRD-200202439
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Effective date: May 9, 2002
Proposal publication date: March 15, 2002
For further information, please call: (512) 438-3734
Chapter 106.
PURCHASE OF GOODS AND SERVICES BY TEXAS REHABILITATION COMMISSION
Subchapter D. PURCHASE OF GOODS AND SERVICES
40 TAC §106.105
The Texas Rehabilitation Commission (TRC) adopts a change
to Title 40, Chapter 106, §106.105, concerning purchase of goods and
services by TRC, without changes to the proposed text as published in the
December 21, 2001, issue of the
Texas Register
.
The change is being adopted to correct an erroneous citation to the Human
Resources Code in 40 TAC §106.105.
No comments were received regarding adoption of the proposed amendment.
The amendment is adopted under the Texas Human Resources Code,
Title 7, Chapter 111, §111.018 and §111.023, which provides the
Texas Rehabilitation Commission with the authority to promulgate rules consistent
with Title 7, Texas Human Resources Code.
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 April 22, 2002.
TRD-200202449
Sylvia F. Hardman
Deputy Commissioner for Legal Services
Texas Rehabilitation Commission
Effective date: May 12, 2002
Proposal publication date: December 21, 2001
For further information, please call: (512) 424-4050
40 TAC §106.355
The Texas Rehabilitation Commission (TRC) adopts a change
to Title 40, Chapter 106, §106.355, concerning purchase of goods and
services by TRC, without changes to the proposed text as published in the
February 1, 2002, issue of the
Texas Register
.
The change is being adopted to update for the new name of the Texas Building
and Procurement Commission.
No comments were received regarding adoption of the proposed amendment.
The amendment is adopted under the Texas Human Resources Code,
Title 7, Chapter 111, §111.018 and §111.023, which provides the
Texas Rehabilitation Commission with the authority to promulgate rules consistent
with Title 7, Texas Human Resources Code.
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 April 22, 2002.
TRD-200202450
Sylvia F. Hardman
Deputy Commissioner for Legal Services
Texas Rehabilitation Commission
Effective date: May 12, 2002
Proposal publication date: February 1, 2002
For further information, please call: (512) 424-4050
40 TAC §106.357
The Texas Rehabilitation Commission (TRC) adopts a change
to Title 40, Chapter 106, §106.357, concerning purchase of goods and
services by TRC, without changes to the proposed text as published in the
February 1, 2002, issue of the
Texas Register
.
The change is being adopted to update for the new name of the Texas Building
and Procurement Commission.
No comments were received regarding adoption of the proposed amendment.
The amendment is adopted under the Texas Human Resources Code,
Title 7, Chapter 111, §111.018 and §111.023, which provides the
Texas Rehabilitation Commission with the authority to promulgate rules consistent
with Title 7, Texas Human Resources Code.
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 April 22, 2002.
TRD-200202451
Sylvia F. Hardman
Deputy Commissioner for Legal Services
Texas Rehabilitation Commission
Effective date: May 12, 2002
Proposal publication date: February 1, 2002
For further information, please call: (512) 424-4050
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
Chapter 50.
§1915(c) CONSOLIDATED WAIVER PROGRAM
Chapter 97.
LICENSING STANDARDS FOR HOME AND COMMUNITY SUPPORT SERVICES AGENCIES
Part 2.
TEXAS REHABILITATION COMMISSION
Subchapter K. HISTORICALLY UNDERUTILIZED BUSINESSES
Chapter 117.
SPECIAL RULES AND POLICIES