25 TAC §411.408, §411.410
The Texas Department of Mental Health and Mental Retardation
(TDMHMR) proposes amendments to §411.408 and §411.410 of Chapter
411, Subchapter I, concerning TDMHMR In-Home and Family Support Program.
The proposed amended rules describe the requirements for determining eligibility
following a person's or family's application for assistance when TDMHMR In-Home
and Family Support Program funds have not been appropriated. The proposed
amended rules would also state that an administering agency may use program
funds for indirect costs associated with the program
as allowed by the agency's contract with TDMHMR
.
Cindy Brown, chief financial officer, has determined that for each year
of the first five years the proposed amended rules are in effect, enforcing
or administering the amended rules does not have foreseeable fiscal implications
relating to cost or revenue of the state or local governments.
Debra Hendrich, coordinator, TDMHMR In-Home and Family Support Program,
has determined that, for each year of the first five years the proposed amended
rules are in effect, the public benefit expected is the reduction of administrative
responsibilities when TDMHMR In-Home and Family Support Program funds have
not been appropriated. It is anticipated that there would be no economic cost
to persons required to comply with the proposed amended rules.
It is anticipated that the proposed amended rules will not affect a local
economy.
It is anticipated that the proposed amended rules will not have an adverse
economic effect on small businesses or microbusinesses because the amendments
do not place requirements on small or microbusinesses.
Written comments on the proposal may be sent to Linda Logan, director,
Policy Development, Texas Department of Mental Health and Mental Retardation,
P.O. Box 12668, Austin, Texas 78711-2668, within 30 days of publication.
These sections are proposed under the Texas Health and Safety
Code, 532.015(a), which provides the Texas Mental Health and Mental Retardation
Board with broad rulemaking authority, and §535.002(a), which requires
TDMHMR to adopt rules, procedures, and standards to implement and administer
Chapter 535 of the Texas Health and Safety Code.
These proposed sections would affect Chapter 535 of the Texas Health and
Safety Code.
§411.408.Applying for Assistance and Processing Applications.
(a)
Applying for assistance. Application for assistance must
be made by the person or the person's family. If the person lives independently,
then the person must be age 18 years or older to apply for assistance unless
the person is or has been married or has had the disability of minority removed
pursuant to the Texas Family Code, Chapter 31.
(1)
The administering agency may not discriminate against any
person or family on the basis of race, color, national origin, religion, sex,
age, disability, political affiliation, or sexual orientation.
(2)
Determining eligibility following application for
assistance.
(A)
When funds have been appropriated.
Within
30 days after a person or family applies for assistance, the administering
agency is responsible for determining if the person or family is eligible
for assistance in accordance with §411.407 of this title (relating to
Eligibility Determination). The person or family is responsible for providing
all necessary information for the administering agency to determine eligibility
in a timely manner.
(B)
When funds have not been appropriated.
If TDMHMR In-Home and Family Support Program funds have not been appropriated
at the time a person or family applies for assistance, then the person's name
is placed on record as waiting for eligibility determination. A family waiting
for eligibility determination is identified on the record by the name of the
person on whose behalf the application for assistance is made. The person
or family is responsible for notifying the administering agency of changes
to address or phone number while on record as waiting for eligibility determination.
(i)
When funds have been appropriated, then the administering
agency is responsible for contacting persons and families on record as waiting
for eligibility determination in chronological order according to persons'
and families' date of application.
(ii)
The administering agency is responsible for determining
if the person or family is eligible for assistance in accordance with §411.407
of this title (relating to Eligibility Determination) in a timely manner.
The person or family is responsible for providing all necessary information
for the administering agency to determine eligibility.
(b)
Processing applications. The administering agency must
process applications in chronological order according to persons' and families'
date of eligibility as defined in §411.403(6) of this title (relating
to Definitions). If more than one person or family has the same date of eligibility,
then chronological order is based on the date of application.
(c)
Record of waiting for assistance. If TDMHMR In-Home and
Family Support Program funds are not available on a person's or family's date
of eligibility, then the person's name is placed on record as waiting for
assistance in the same order that the applications are processed. A family
waiting for assistance is identified on the record by the name of the person
on whose behalf the application for assistance is made.
(1)
The administering agency must maintain a record of persons
and families waiting for assistance continually from one fiscal year to the
next.
(2)
Persons and families on record as waiting for assistance
must notify the administering agency within 10 days after a change in any
eligibility factor (i.e., diagnosis, residency, financial, or need), as described
in §411.407 of this title (relating to Eligibility Determination). If
there has been a change in an eligibility factor, then the administering agency
must determine if the person or family is eligible for assistance in accordance
with §411.407 of this title (relating to Eligibility Determination) within
30 days after notification.
(3)
The administering agency must contact persons and families
on record as waiting for assistance annually to determine if there has been
a change in any of their eligibility factors.
(d)
Person or family considered an employer. Depending upon
which provider is selected and the amount of services to be provided, an eligible
person or family may be considered an employer, and thus responsible for employment-related
expenses. To assist the person or family in determining whether the person
or family is an employer, the administering agency will provide the person
or family with a copy of "Learning Your Responsibilities As An Employer,"
which is referenced as Exhibit B in §411.412(2) of this title (relating
to Exhibits).
(e)
Selecting provider or vendor and negotiating provider rates.
(1)
The provider of a service and the prescriber of a service
or item must have all certifications, registrations, licenses, and permits
that are required by state law. The administering agency must establish minimum
qualifications for providers of services and prescribers of services or items
who are not required by state law to have certifications, registrations, licenses,
or permits.
(2)
The administering agency staff and the person or family
must identify the required provider or vendor qualifications or product specifications
for each item to be paid with assistance.
(3)
The selection of provider or vendor must be negotiated
between the person or family and the administering agency based upon the provider's
or vendor's qualifications and ability to provide the item.
(4)
The provider rate, negotiated between the selected provider
and the person or family, is subject to approval by the administering agency.
If the person or family determines that the person or family is an employer
in accordance with subsection (d) of this section, then the negotiated rate
for the service must include all employment-related expenses as approved by
the administering agency.
(f)
Architectural modifications: Pre-approval, soliciting competitive
bids, and selecting a contractor or individual to perform the work.
(1)
Pre-approval.
(A)
Architectural modifications to be made to a person's natural
home that is not owned by the person or family require the written approval
of the property owner or property manager and pre-approval of the administering
agency.
(B)
Architectural modifications to be made to a person's natural
home that is owned by the person or family do not require written approval
of the property owner nor pre-approval of the administering agency.
(2)
Soliciting competitive bids.
(A)
The administering agency staff and the person or family
must identify the:
(i)
required contractor qualifications or required qualifications
for the individual who will perform the work; and
(ii)
specifications for an architectural modification project.
(B)
Using the required qualifications and project specifications
the person or family is responsible for soliciting and obtaining bids in accordance
with this paragraph.
(i)
For costs between $250 and $600 -- three oral bids.
(ii)
For costs over $600 -- three written bids.
(iii)
If only one bid is received, then the person or family
must provide documentation to be included in the written plan verifying that
no other contractor or individual is available to perform the work.
(iv)
A person or family is exempt from soliciting or obtaining
bids for good cause, as determined by the administering agency and documented
in the written plan.
(3)
Selecting a contractor or individual to perform the work.
The selection of contractor or individual to perform the work must be negotiated
between the person or family and the administering agency based upon best
value. All relevant factors must be considered in determining best value,
including, as appropriate, price, quality, reliability, promptness, and warranty.
§411.410.Administrative Implementation.
(a)
Programmatic and fiscal accountability. Each administering
agency must maintain programmatic and fiscal records documenting its implementation
of the TDMHMR In-Home and Family Support Program so that TDMHMR is able to
conduct fiscal audits and programmatic reviews. The administering agency must
retain programmatic and fiscal records or five years.
(b)
Quality improvement. The administering agency must develop
and implement quality improvement activities and processes to identify and
address operational problems and areas needing improvement.
(c)
Program indirect costs. The administering agency may use
TDMHMR In-Home and Family Support Program funds to pay for indirect costs
related to the program (e.g., salary, benefits, office space, and equipment
for program staff)
as allowed by the administering agency's contract
with TDMHMR
. [
The percentage of program funds used for indirect
costs may not exceed the percentage allowed by TDMHMR.
]
(d)
Penalties.
(1)
The administering agency may impose the following penalties
on a recipient if the recipient does not comply with his or her written plan:
(A)
immediate termination of assistance;
(B)
restitution of assistance received; and
(C)
ineligibility for further assistance.
(2)
A recipient who has been penalized in accordance with paragraph
(1) of this subsection is entitled to appeal the determination to impose penalties
in accordance with §411.411 of this title (relating to Appeal).
(e)
Coordination with Texas Department of Human Services' In
Home and Family Support Program (TDHS IHFS Program).
(1)
On a quarterly basis TDMHMR will coordinate with the TDHS
IHFS Program to assure that no recipient is receiving funds from the TDHS
IHFS Program. TDMHMR will refer discrepancies to the appropriate administering
agency for resolution.
(2)
Each administering agency is responsible for the ongoing
coordination with the TDHS office in the administering agency's service area
to ensure that persons and families receiving funds through the TDHS-IHFS
Program are not also receiving assistance from the TDMHMR In-Home and Family
Support Program.
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 August 4, 2003.
TRD-200304701
Rodolfo Arredondo
Chairman, Texas MHMR Board
Texas Department of Mental Health and Mental Retardation
Earliest possible date of adoption: September 14, 2003
For further information, please call: (512) 206-4516