Part 1.
TEXAS DEPARTMENT OF HUMAN SERVICES
Chapter 49.
CONTRACTING FOR COMMUNITY CARE SERVICES
The Texas Department of Human Services (DHS) proposes to repeal §§49.1,
49.3, 49.5, 49.7, 49.9 - 49.11, 49.13 - 49.15, 49.17, 49.19, 49.21, 49.23,
49.25, and 49.27, concerning DHS's requirements for contracting for Community
Care services, in its Contracting for Community Care Services chapter. DHS
proposes new Subchapter A, concerning definitions, §49.1; new Subchapter
B, concerning contractor requirements, §§49.11 - 49.20; new Subchapter
C, concerning records, §§49.31 - 49.33; new Subchapter D, concerning
billings and payment, §§49.41 - 49.43; new Subchapter E, concerning
audits, monitoring, and reviews, §§49.51 - 49.54; and new Subchapter
F, concerning sanctions and termination, §§49.61 - 49.63, in its
Contracting for Community Care Services chapter. The purpose of the repeals
and new sections is to reorganize the chapter and rewrite the rules in plain
language format to make the sections easier to read and understand. The rules
cover requirements and responsibilities of provider agencies contracting with
DHS to provide Community Care services, including general requirements for
participation, provisional contracts, contract assignments, record keeping
requirements, billings and payment methods, audits, monitoring, and sanctions
for noncompliance.
The proposed rules were written to complement licensure rules for DHS licensed
entities and to place rules specific to Community Care contractors as much
as possible within the same chapter. Therefore, rules outlining requirements
for contractors providing services for Consolidated Waiver Program, Community
Based Alternatives, and Primary Home Care are proposed for placement in Chapter
49 and will be deleted from Chapters 47, 48, and 50 of this title (relating
to Primary Home Care, Community Care for Aged and Disabled, and §1915(c)
Consolidated Waiver Program) in a subsequent issue of the
Texas Register
. Rules regarding access to a contractor's records that
appear in Chapter 69 of this title (relating to Contracted Services) are restated
in proposed §49.33 for the convenience of the public and provider agencies.
Proposed §49.12 requires those entities contracting with DHS to provide
Community Care services to complete a pre-contract orientation, as authorized
in §69.202(c)(2) of this title (relating to Procurement).
Bobby Halfmann, Chief Financial Officer, has determined that, for the first
five-year period the proposed sections are in effect, there are no fiscal
implications for state or local government as a result of enforcing or administering
the sections.
Bettye Mitchell, Deputy Commissioner for Long Term Care, has determined
that, for each year of the first five years the sections are in effect, the
public benefit anticipated as a result of enforcing the sections is that the
public and provider agencies will have rules that are easier to understand
and that complement licensure rules for DHS licensed entities. There is no
adverse economic effect on small or micro businesses, or on businesses of
any size, as a result of enforcing or administering the sections, because
most of the proposals exist in program policy with which provider agencies
are already complying. There is no anticipated effect on local employment
in geographic areas affected by these sections.
Questions about the content of this proposal may be directed to Marilyn
Eaton at (512) 438-2856 in DHS's Community Care Contracting section. Written
comments on the proposal may be submitted to Supervisor, Rules and Handbooks
Unit-220, 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 Government Code, DHS has determined that
Chapter 2007 of the Government Code does not apply to these rules. Accordingly,
DHS is not required to complete a takings impact assessment regarding these
rules.
40 TAC §§49.1, 49.3, 49.5, 49.7, 49.9 - 49.11, 49.13 - 49.15, 49.17, 49.19, 49.21, 49.23, 49.25, 49.27
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Texas Department of Human Services or in the Texas Register office,
Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeals are proposed under the Human Resources
Code, Chapters 22 and 32, which authorizes DHS to administer public and medical
assistance programs, and under Government Code, §531.021, which provides
the Texas Health and Human Services Commission with the authority to administer
federal medical assistance funds.
The repeals affect the Human Resources Code, §§22.0001 - 22.038
and §§32.001 - 32.053.
§49.1.General Requirements for Participation.
§49.3.General Contractual Requirements.
§49.5.Contract Assignment.
§49.7.Method of Payment.
§49.9.Billings and Claims Payment.
§49.10.Expedited Payment System for Community Based Alternatives and Primary Home Care Personal Assistance Services.
§49.11.Record Documentation Requirements.
§49.13.Client Rights and Responsibilities.
§49.14.Complaint Procedures.
§49.15.Audits.
§49.17.Fiscal Monitoring.
§49.19.Sanctions.
§49.21.Recontracting.
§49.23.Advertising and Solicitation of Clients.
§49.25.Contract/Program Monitoring.
§49.27.Religious and Charitable Organizations.
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 July 29, 2003.
TRD-200304606
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: September 14, 2003
For further information, please call: (512) 438-3734
Subchapter A. DEFINITIONS
40 TAC §49.1
The new section is proposed under the Human Resources Code,
Chapters 22 and 32, which authorizes DHS to administer public and medical
assistance programs, and under Government Code, §531.021, which provides
the Texas Health and Human Services Commission with the authority to administer
federal medical assistance funds.
The new section affects the Human Resources Code, §§22.0001 -
22.038 and §§32.001 - 32.053.
§49.1.Definitions.
The following words and terms have the following meanings when used
in this chapter, unless the context clearly indicates otherwise:
(1)
Advanced directives--An instruction made under the Health
and Safety Code, §§166.032, 166.034, or 166.035, to administer,
withhold, or withdraw life-sustaining treatment in the event of a terminal
or irreversible condition.
(2)
Adverse action--An adverse action includes any action taken
by the Texas Department of Human Services (DHS) that:
(A)
terminates or suspends a DHS contract before its stated
expiration date;
(B)
denies, terminates, or suspends payments, in whole or part,
to a contractor;
(C)
demands repayment for an overpayment;
(D)
directs one of its contractors to terminate or suspend
a subcontract or payments to any subcontractor or provider of medical services;
(E)
reduces a contractor's block grant funds by 25% or more
of the amount DHS reimburses if DHS plans to allocate the withheld funds to
another contractor for similar services in the same geographic area, if the
contractor alleges that the reduction was in violation of DHS rules, was discriminatory,
or was without reasonable basis in law or fact; this does not apply to funding
or contracts subject to DHS's competitive procurement rules;
(F)
prevents a legal entity from contracting with DHS for a
prescribed period; or
(G)
imposes any adverse sanction or other action to which a
provider agency has a statutory right to a formal hearing.
(3)
Alternative language--Any reference to an alternative language
of a document means putting the document in a language that can be clearly
understood by the person reading it (for example, Spanish or Braille).
(4)
Assignee--A legal entity that assumes a Community Care
contract through a legal assignment of the contract from the contracting entity.
(5)
Assignor--A legal entity that assigns its Community Care
contract to another legal entity.
(6)
Cause--A determination that the contractor failed to comply
with the terms of the contract or applicable program rules.
(7)
Client--A person who is eligible to receive services according
to program specific eligibility requirements.
(8)
Client hold--The suspension of client referrals by DHS
to the provider agency.
(9)
Compliance monitoring--The systematic review of client
case records and interviews with clients, provider agency staff, and others,
as appropriate, to determine compliance with service delivery requirements.
(10)
Contract--The formal, written agreement between DHS and
a provider agency to provide services to eligible DHS clients in exchange
for reimbursement.
(11)
Contract assignment--The transfer of a contract by one
legal entity to another legal entity.
(12)
Contract manager--A DHS employee who is responsible for
the overall management of the contract with the provider agency.
(13)
Contractor--A provider agency.
(14)
Controlling party--An owner who is a sole-proprietor,
a partner owning 5% or more of the partnership, or a corporate stockholder
owning 5% or more of the outstanding stock of the contracted provider, or
a member of the board of directors.
(15)
Corrective action plan (CAP)--The plan of action the provider
agency proposes and submits to DHS to correct contract deficiencies DHS has
cited.
(16)
Cost reimbursement method of payment--Payment directly
related to the allowable reimbursable costs incurred by the provider agency.
(17)
Days--Any reference to days means calendar days unless
otherwise specified in the text. Calendar days include weekends and holidays.
(18)
Debarment--When DHS chooses to prohibit a legal entity
from conducting business with DHS, in any capacity, for a certain period.
(19)
DHS--The Texas Department of Human Services.
(20)
Expedited payments system (EPS)--An automated payment
system, offered to qualifying Community Based Alternatives/Home and Community
Support Services (CBA/HCSS) and Primary Home Care/Family Care (PHC/FC) providers
for Personal Assistance Services (PAS) only, which allows the provider agency
to receive a substantial portion of its payment at the beginning of the month
based on services provided in the previous month.
(21)
Extrapolation--To predict outcomes by projecting past
experience or known data.
(22)
Fiscal monitoring--DHS's review of the documentation that
supports the provider agency's billing.
(23)
Involuntary contract termination--When DHS terminates
a provider agency's contract without the consent of the provider agency.
(24)
Level II administrative penalty--A penalty DHS assesses
for violations of Home and Community Support Services Agencies (HCSSA) licensing
rules, as described in Chapter 97 of this title (relating to Licensing Standards
for Home and Community Support Services Agencies).
(25)
HCSSA monitoring agreement--An agreement between the provider
agency and DHS Long Term Care Regulatory (LTCR) in which the provider agency
agrees to hire a professional consultant to assist in correcting license problems
uncovered during the HCSSA survey.
(26)
Practitioner--A currently licensed Texas physician or
physician assistant, or a registered nurse approved by the Texas State Board
of Nurse Examiners to practice as an advanced practice nurse.
(27)
Program specific documents/rules/requirements--Those documents/rules/requirements
specifically identified and/or stated in the program rules.
(28)
Provider agency--An agency that has a contract with DHS
to provide Community Care services to DHS clients.
(29)
Provisional contract--A time-limited contract that is
limited to one year and meets the requirements in §49.12 of this chapter
(relating to General Requirements for Participation).
(30)
Recoupment--When DHS recovers an overissuance to a provider
agency by reducing payments to that provider agency until the overissuance
is recovered.
(31)
Re-enrollment--DHS's requirement to complete and submit
new contract application forms and enter into a new contract.
(32)
Restitution--When a provider agency reimburses DHS for
an overissuance that the provider agency has received.
(33)
Sanction--An adverse action that DHS may take against
a provider agency.
(34)
Solicitation--When a provider agency entices or lures
an individual to receive services from the provider agency when that provider
agency knows that the individual is the client of another provider agency.
(35)
Suspension--A contract sanction wherein DHS temporarily
suspends or halts a provider agency's right to conduct business with DHS.
(36)
Unit rate method of payment--Payment according to each
unit of service provided.
(37)
Vendor hold--A contract sanction wherein DHS withholds
the provider agency's contract payments.
(38)
Working days--Days DHS is open for business.
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 July 29, 2003.
TRD-200304607
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: September 14, 2003
For further information, please call: (512) 438-3734
40 TAC §§49.11 - 49.20
The new sections are proposed under the Human Resources Code,
Chapters 22 and 32, which authorizes DHS to administer public and medical
assistance programs, and under Government Code, §531.021, which provides
the Texas Health and Human Services Commission with the authority to administer
federal medical assistance funds.
The new sections affect the Human Resources Code, §§22.0001 -
22.038 and §§32.001 - 32.053.
§49.11.Contracting Requirements.
(a)
The provider agency must meet all provisions described
in this chapter, as well as in the program-specific rules.
(b)
The provider agency is subject to provisions outlined in
this chapter, in Chapter 69 of this title (relating to Contracted Services),
and in Chapter 79, Subchapters Q and S, of this title (relating to Formal
Appeals and Contracting Ethics).
(c)
The provider agency must meet all local, state, and federal
regulations that are applicable to the contract and program rules.
(d)
The Texas Department of Human Services may require corrective
action, impose a client hold, and/or impose a contract sanction against a
provider agency for any failure to comply with the terms of the contract and/or
subsections (a) - (c) of this section.
§49.12.General Requirements for Participation.
(a)
To contract with the Texas Department of Human Services
(DHS) to provide Community Care services, the provider agency must:
(1)
meet eligibility requirements for contracting as described
in §49.13 and §49.14 of this chapter (relating to General Contractual
Requirements and Provisional Contracts) and Chapter 69 of this title (relating
to Contracted Services);
(2)
have and maintain the appropriate license(s);
(3)
complete an application packet with all required documentation;
(4)
meet all the program-specific requirements;
(5)
complete a pre-contract orientation as specified by DHS;
and
(6)
if applicable, be authorized by the secretary of state
to conduct business in the state of Texas.
(b)
DHS will not enter into a contract with a legal entity
when:
(1)
there has been a validated report of abuse, neglect, or
exploitation and the perpetrator is an employee, volunteer, or owner who has
direct access to clients; or
(2)
DHS determines that the entity has solicited clients from
another provider agency.
(c)
DHS may choose not to enter into a contract with a legal
entity when, in DHS's opinion, the legal entity or a controlling party has
a prior unsatisfactory history in contracting with DHS.
(d)
DHS may require periodic re-enrollment of provider contracts.
(1)
Provider agencies must complete contract re-enrollment
within the time frames DHS specifies.
(2)
Provider agencies that fail to re-enroll within the time
frames DHS specifies lose their eligibility for a contract.
(e)
Provider agencies must comply with:
(1)
applicable licensure requirements; and
(2)
any and all applicable DHS and Texas Health and Human Services
Commission program rules.
(f)
DHS reserves the right to refuse to contract with a provider
agency if, in the opinion of DHS, the provider agency may not provide acceptable
service under the contract.
§49.13.General Contractual Requirements.
(a)
To be eligible to enter into a contract for Community Care
programs, the provider agency must have:
(1)
a minimum of two months operating funds available for conducting
business on the effective date of the contract, and maintain two months operating
funds to provide services for the duration of the contract; and
(2)
adequate staff to provide services on the effective date
of the contract and to maintain adequate staff to provide services for the
duration of the contract.
(b)
The provider agency must receive one service-specific orientation/training
before the Texas Department of Human Services (DHS) makes any client referrals.
(c)
The provider agency must report suspected violation of
rules or laws to the appropriate investigative authority. This includes reporting
abuse, neglect, and exploitation issues to the Texas Department of Protective
and Regulatory Services or to the appropriate DHS licensing staff.
(d)
The provider agency must comply with provisions of the
Omnibus Budget Reconciliation Act of 1990 at 42 United States Code §1396a(w)(1),
regarding advanced directives under state plans for medical assistance, when
Medicaid services are being provided.
(e)
A provider agency is not eligible to enter into or maintain
a contract for Community Care programs if the provider agency:
(1)
has been excluded from participating under Title XVIII
or Title XIX of the Social Security Act; and/or
(2)
allows direct care staff with communicable diseases or
open infectious wounds to come into direct contact with clients or with products
clients may consume or handle.
(f)
DHS may choose not to enter into or maintain a contract
for Community Care programs if the provider agency:
(1)
subcontracts any direct care services without specific
authorization from DHS; and/or
(2)
assigns or transfers the contract without the written prior
approval of DHS.
(g)
The provider agency must notify DHS in writing of changes
to contract information according to the following timelines:
(1)
30 calendar days in advance of any address change, which
includes the location of the agency's office, physical address, and/or mailing
address;
(2)
immediately of any change in administrator or director;
(3)
immediately of any change in the provider agency's organizational
structure;
(4)
within seven working days of any change in telephone number;
and
(5)
within 10 working days of any change in the provider agency's
comptroller vendor ID number, resulting from circumstances other than through
a change in the legal entity responsible for the contract.
(h)
DHS assigns the effective date of a contract. The effective
date of the contract is no earlier than the first day of the month after DHS
signs the contract. DHS may issue a contract with an earlier effective date
if it is in the best interest of the program.
§49.14.Provisional Contracts.
(a)
All new Primary Home Care/Family Care, Community Based
Alternatives/Home and Community Support Services, and Consolidated Waiver
Program contracts are provisional contracts.
(b)
Provisional contracts are limited to one year and are subject
to the requirements specified in this section.
(c)
Before applying for a provisional contract, the provider
agency must:
(1)
have held the appropriate Home and Community Support Services
Agencies (HCSSA) license, used to qualify for the contract, for at least one
year;
(2)
have completed an on-site HCSSA health survey;
(3)
be eligible to have the HCSSA license renewed; and
(4)
have provided attendant or home health services:
(A)
to at least 10 clients, with at least two of the clients
having received ongoing services during a 60-day period; and
(B)
for a total of at least 500 hours during the 12 months
immediately preceding the provider agency's contract application in the region
in which the provider agency is applying for a contract.
(d)
The Texas Department of Human Service (DHS) does not enter
into a provisional contract if the provider agency:
(1)
has not completed a pre-contract orientation from DHS;
(2)
is under a HCSSA monitoring agreement with DHS Long Term
Care Regulatory (LTCR);
(3)
has a Level II administrative penalty pending with DHS
LTCR;
(4)
has a license revocation action pending with DHS LTCR;
or
(5)
had any Community Care program contract involuntarily terminated
in the 24 months preceding the provider agency's contract application.
(e)
DHS may choose not to enter into a provisional contract
if the provider agency was assessed any Level II administrative penalties
in the 12 months preceding the provider agency's contract application and
there is no pending administrative hearing on the administrative penalties.
(f)
If the provider agency's provisional contract is allowed
to expire due to noncompliance with program-specific rules, the provider agency
cannot enter into another provisional contract for the same Community Care
services until at least 24 months after the effective date of the expiration.
(g)
If the provider agency chooses to voluntarily withdraw
from a provisional contract, the provider agency cannot enter into another
provisional contract for the same Community Care services for at least 12
months after the effective date of the withdrawal.
(h)
DHS may terminate the provider agency's provisional contract
at any time if DHS finds the provider agency does not meet the requirements
for provisional contracting as outlined in subsection (c) of this section
or if DHS finds that the provider agency does not meet other contracting requirements.
(i)
DHS conducts at least one formal monitoring review of each
provisional contract during the provisional period.
(j)
The provider agency may request an administrative review
of the formal monitoring by following the procedures described in §49.54
of this chapter (relating to Administrative Review).
§49.15.Contract Assignment.
(a)
A provider agency must assign a contract if there will
be a change in the legal entity responsible for the contract. Assignment is
also required when there is a change in the contracting entity's:
(1)
employer identification number; or
(2)
tax status (for example, changing from a partnership to
a corporation).
(b)
No contract assignment is effective until the Texas Department
of Human Services (DHS) approves it in writing.
(c)
To assign a contract, the provider agency must inform DHS's
Community Care Contracting (CCC) Section at least 60 days before the legal
transfer of ownership. Failure to provide this information in a timely manner
may delay the assignment of the contract. The notification to CCC must:
(1)
be in writing; and
(2)
include the legal name of the entity that is assuming the
contract.
(d)
Before a contract assignment is made, the contract assignee
must:
(1)
resolve, to DHS's satisfaction, all audits related to the
contracted program;
(2)
prepare a contract assignment agreement that includes the
following statements:
(A)
the reason(s) for the contract assignment;
(B)
both the assignee and assignor are responsible for collecting
and reporting financial and statistical data on DHS's cost reports that corresponds
to its respective contract periods;
(C)
DHS reserves the right to require restitution for any audit/contract
exceptions from either provider agency;
(D)
any adverse action pending or in place when the contract
is assigned is the responsibility of both the assignee and the assignor;
(E)
the assignee agrees to adhere to all DHS contract requirements,
including appropriate statutes and rules;
(F)
the assignee meets all program criteria for being a provider
agency. Documentation of the assignee's eligibility must be provided before
DHS will agree to a contract assignment;
(G)
identity of both legal entities; and
(H)
the current contract number(s) and service(s) to be assigned.
(e)
The contract assignment agreement must:
(1)
be signed by persons with signature authority for the assignee
and the assignor;
(2)
be notarized; and
(3)
include a line for DHS's representative to sign, showing
its approval.
(f)
DHS reserves the right to refuse to approve any contract
assignment if, in DHS's opinion, the proposed assignee may not be able to
provide acceptable service under the contract.
(g)
If the provider agency fails to complete the contract assignment
application correctly, DHS returns the application to the provider agency
for corrections.
(h)
The effective date of the contract assignment is no earlier
than the first day of the following month after DHS has fully processed and
signed the contract. DHS may award a contract at an earlier date if it is
in the best interest of the program.
§49.16.Background Checks.
The provider agency must comply with its licensure requirements regarding
background searches for facility/provider agency staff.
§49.17.Complaint Procedures.
(a)
The provider agency must document, investigate, and resolve
all complaints that the client and/or the Texas Department of Human Services
(DHS) reports.
(b)
Provider agencies with contracts that require a DHS license
must investigate and resolve complaints in accordance with applicable licensure
rules. If there are no such rules, the provider agency must adhere to the
requirements outlined in subsections (c) - (e) of this section.
(c)
Provider agencies with contracts that require licensure
by an entity other than DHS must investigate and resolve complaints within
five workdays from the receipt of the complaint report unless a different
time frame is found in the service-specific program requirements.
(d)
The provider agency must maintain a log of client complaints
and must ensure that:
(1)
all written complaints are stamped with the date of receipt;
(2)
all verbal complaints are documented with the date of receipt
and a narrative of the allegation(s); and
(3)
the complaint log is accessible to DHS staff.
(e)
All documentation of complaint investigations must contain
the following information:
(1)
who conducted the investigation;
(2)
who was contacted during the investigation;
(3)
the findings of the investigation; and
(4)
any actions taken as a result of the investigation.
(f)
When a client-initiated complaint is resolved, the provider
agency must obtain:
(1)
the client's initials; or
(2)
a witness's signature if the client refuses to sign.
§49.18.Client Rights and Responsibilities.
(a)
The provider agency must provide each client with the following
information no later than the time services begin:
(1)
a general orientation on tasks to be provided;
(2)
consumer rights and responsibilities, as described in the
Human Resources Code, Chapter 102;
(3)
client conduct requirements;
(4)
procedures for filing complaints;
(5)
the name and/or title and telephone number of the person
to call to make a verbal complaint; and
(6)
the provider agency's responsibilities in providing the
services.
(b)
The provider agency must make an interpreter available
to the client(s) upon request.
(c)
The provider agency must make written material available
to the client(s) in alternative languages upon request and maintain a copy
of the material in the alternative languages provided.
(d)
The provider agency must give the information in subsection
(a) of this section to the client both verbally and in writing, with no more
than 12 months between each notification.
(e)
The Texas Department of Human Services (DHS) must receive
a copy of any changes before the provider agency amends its policies affecting
the items specified in this section. In addition, each client must receive
written notification of the change before it becomes effective.
(f)
The provider agency cannot enact any DHS-approved policy
changes before providing written notification to each client.
(g)
The provider agency must not require clients to perform
services for the provider agency or other clients.
§49.19.Advertising and Solicitation of Clients.
(a)
The provider agency may advertise for clients as long as
the provider agency does not:
(1)
state or imply that the provider agency provides better
services than other providers;
(2)
solicit clients from other providers; or
(3)
limit or influence a client's freedom of choice.
(b)
The provider agency's advertisement may only be an announcement
of available services and must not target specific clients.
(c)
If the Texas Department of Human Services (DHS) determines
that the provider agency has violated this section, DHS may deny the provider
agency's application for a contract or impose a sanction against the provider
agency's existing contract, up to and including contract termination.
§49.20.Religious and Charitable Organizations.
(a)
A religious or charitable organization is eligible to become
a contractor on the same basis as any other private organization.
(b)
A religious or charitable organization retains its independence
from all state and local governments, including its control over the definition,
development, practice, and expression of its charitable or religious beliefs.
(c)
A religious or charitable organization is not required
to change its method of governance or remove any of its organizational symbols
unless it is required to do so under applicable federal law.
(d)
Funds provided under the contract:
(1)
must be kept separate from other organizational funds;
and
(2)
are subject to Texas Department of Human Services audit.
(e)
Any contract with a religious or charitable organization
is not an endorsement of that organization, its practices, or what it symbolizes.
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 July 29, 2003.
TRD-200304608
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: September 14, 2003
For further information, please call: (512) 438-3734
40 TAC §§49.31 - 49.33
The new sections are proposed under the Human Resources Code,
Chapters 22 and 32, which authorizes DHS to administer public and medical
assistance programs, and under Government Code, §531.021, which provides
the Texas Health and Human Services Commission with the authority to administer
federal medical assistance funds.
The new sections affect the Human Resources Code, §§22.0001 -
22.038 and §§32.001 - 32.053.
§49.31.Record Requirements.
(a)
The provider agency must maintain all financial and contract-related
records:
(1)
according to recognized fiscal and accounting practices;
and
(2)
in accordance with Texas Department of Human Services (DHS)
contract requirements.
(b)
The provider agency must maintain DHS client documentation,
including:
(1)
the service plan;
(2)
service delivery records;
(3)
significant incidents regarding progress, illnesses, and
accidents that may be used to maintain or revise the service plans;
(4)
suspension and termination records, discharge plans, client
referrals, and placements;
(5)
client rights and responsibilities provided to clients;
(6)
complaint procedures provided to clients;
(7)
orientations completed;
(8)
abuse, neglect, or exploitation incidents referred to the
appropriate investigative authority;
(9)
records of client conduct;
(10)
provider agency responsibilities provided to the client;
and
(11)
additional program-specific requirements.
(c)
The provider agency must maintain personnel records on
every employee and volunteer, and must also maintain records on subcontractors.
(d)
The provider agency must complete all service delivery
records in ink when using paper service delivery records.
(e)
The provider agency must use the official DHS form to document
services delivered or to document all of the required elements of the services
delivered, as provided in program- specific rules.
(f)
The provider agency must not preprint or pre-enter any
record of time on any form used to document services delivered.
§49.32.Record Retention.
(a)
The provider agency must maintain all records pertaining
to the services provided to individuals in the Medicaid program for at least
five years from the date the services were provided. If any litigation or
claim involving these records is still ongoing at the conclusion of five years,
the provider agency must maintain the records until all litigation or claims
are resolved.
(b)
The provider agency must maintain all work papers and records
supporting information reported on cost reports, budgets, or other cost surveys
for at least three years and 90 days after the end of the fiscal year in which
the services were provided. If any litigation or claim involving these records
is still ongoing at the conclusion of three years and 90 days, the provider
agency must maintain the records until all litigation or claims are resolved.
§49.33.Access to Contractor's Records.
(a)
The provider agency must allow the Texas Department of
Human Services (DHS) and all appropriate federal and state agencies and their
representatives to examine and copy client records and supporting documents
pertaining to services provided. The provider agency must make the records
available at reasonable times and for reasonable periods.
(b)
The provider agency must provide DHS with client records
and supporting documents upon request. If the provider agency fails to provide
records upon request, DHS may take adverse action against the provider agency's
contract.
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 July 29, 2003.
TRD-200304609
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: September 14, 2003
For further information, please call: (512) 438-3734
40 TAC §§49.41 - 49.43
The new sections are proposed under the Human Resources Code,
Chapters 22 and 32, which authorizes DHS to administer public and medical
assistance programs, and under Government Code, §531.021, which provides
the Texas Health and Human Services Commission with the authority to administer
federal medical assistance funds.
The new sections affect the Human Resources Code, §§22.0001 -
22.038 and §§32.001 - 32.053.
§49.41.Billings and Claims Payment.
(a)
A provider agency must not charge and cannot take any action
against or require any supplemental payment from a client, family member,
or persons acting on the client's behalf for any claim(s) the Texas Department
of Human Services (DHS) denies or reduces because of the provider agency's
failure to comply with any DHS or federal rule or procedure.
(b)
A provider agency is responsible for the accuracy of the
claims submitted for payment.
(c)
A provider agency is entitled to payment if:
(1)
the services are:
(A)
authorized by DHS in writing;
(B)
submitted on a verbally approved form or as a facility-initiated
referral to DHS within the required time frames, if applicable; or
(C)
submitted by way of a prior verbally approved form or facility-initiated
referral form that is supportive of the verbal approval, if applicable;
(2)
the reimbursement corresponds to the provider agency's
service authorization and service delivery record;
(3)
services, when allowed to be ordered by a practitioner,
are allowed under Title XVIII and Title XIX of the Social Security Act;
(4)
services were ordered by a practitioner whose license has
not been suspended or who has not been excluded from participation in either
Title XVIII or XIX of the Social Security Act;
(5)
practitioner orders are available, when required;
(6)
appropriate billing forms are used and approved billing
procedures are followed;
(7)
services are provided to a client on or before the date
services are terminated;
(8)
services are provided by an individual whose license or
certification, if applicable to the services provided, has not been suspended
or who has not been excluded from participation in either Title XVIII or XIX
of the Social Security Act;
(9)
the provider agency submits correct and appropriate billings
after services have been provided and all other contract requirements are
met;
(10)
the DHS claims processor receives a complete and accurate
claim for services for which the provider agency is entitled to payment within
12 months after the date of services.
(A)
In the event that Medicaid eligibility for benefits is
established after the provision of services, the 12-month period for the submission
of claims will start on the date of eligibility.
(B)
DHS's claims processor must receive adjustments to claims
during the applicable 12-month period. Claims and adjustments rejected or
denied during the 12-month period through no fault of the provider agency
may be paid upon approval by DHS.
(C)
The requirement to submit claims within 12 months of the
date of service does not prohibit a provider agency from re-billing in the
case of state-generated retroactive adjustments;
(11)
the client is eligible for Medicaid benefits (if services
are provided through Medicaid); and
(12)
the client is not an inpatient of a hospital (unless otherwise
specified in contract terms or program rules), intermediate care facility,
skilled nursing facility, state hospital, state school, or intermediate care
facility for persons with mental retardation or related conditions (except
when a provider agency is authorized to receive payment for an assessment
used to determine eligibility).
§49.42.Method of Payment.
(a)
The Texas Department of Human Services (DHS) uses either
the cost reimbursement or the unit rate method of payment to purchase Community
Care services.
(b)
The cost reimbursement method of payment is payment directly
related to the allowable reimbursable costs incurred by the provider agency.
(c)
The unit rate method of payment is payment according to
each unit of service provided. The Texas Health and Human Services Commission
sets either a fixed unit rate or a unit rate ceiling for the unit rate method
of payment. For unit rates with a ceiling, DHS and provider agency staff negotiate
a unit rate up to the established ceiling. The unit rate is negotiated according
to policies DHS establishes. The negotiated rate then becomes the unit rate
for that particular contract. The unit rate may not be increased during a
contract period unless DHS determines that circumstances dictate a need for
change.
§49.43.Expedited Payments System.
(a)
The Texas Department of Human Services (DHS) offers an
expedited payments system (EPS) to qualifying Community Based Alternatives/Home
and Community Support Services and Primary Home Care providers for Personal
Assistance Services only.
(b)
To be eligible to participate in the EPS, the provider
agency must have:
(1)
billed for services for 12 consecutive months before the
provider agency's application to participate; and
(2)
delivered and received payment, after line item rejections,
for 80% of the authorization for claims processed for the three service months
preceding the month of application.
(c)
To continue participation in the EPS when there is a contract
assignment, the assignee must meet the requirements in subsection (b) of this
section, unless the assignee is already participating in the EPS; in this
case, the assignee may continue to participate.
(d)
A provider agency that is participating in the EPS must:
(1)
submit expedited payment claims on or before the 20th day
of the service month; and
(2)
reconcile the previous month's expedited payment by the
25th day of the current month.
(e)
All requests to participate in the EPS are considered on
a contract-by-contract basis. To participate in the EPS, the provider agency
must submit a written request. The request should include the following information:
(1)
when the provider agency began providing services to DHS
clients;
(2)
the name of a contact person in the provider agency; and
(3)
the specific reasons for the request.
(f)
A provider agency has the following billing options:
(1)
a provider agency billing electronically before enrolling
in the EPS must continue to bill electronically after enrollment in the EPS;
and
(2)
a provider agency that is not billing electronically before
enrolling in the EPS may bill by paper or may bill electronically after enrolling
in the EPS.
(g)
A provider agency that does not comply with the reconciliation
requirements does not receive an expedited payment for at least one month.
(h)
DHS may cancel a provider agency's EPS participation when
the provider agency does not reconcile the expedited payment for the previous
month by the 25th of the current month.
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 July 29, 2003.
TRD-200304610
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: September 14, 2003
For further information, please call: (512) 438-3734
40 TAC §§49.51 - 49.54
The new sections are proposed under the Human Resources Code,
Chapters 22 and 32, which authorizes DHS to administer public and medical
assistance programs, and under Government Code, §531.021, which provides
the Texas Health and Human Services Commission with the authority to administer
federal medical assistance funds.
The new sections affect the Human Resources Code, §§22.0001 -
22.038 and §§32.001 - 32.053.
§49.51.Audits.
(a)
The Texas Department of Human Services (DHS) Internal Audit
Department may conduct an audit/compliance review to:
(1)
test the provider agency's existing system of internal
controls; and/or
(2)
review or examine the provider agency's service delivery
and financial records to verify that payments DHS made to the provider agency
were appropriate.
(b)
The DHS Internal Audit Department may perform desk and
on-site audits/compliance reviews associated with claims the provider agency
submits under a contract. DHS recovers improper payments when DHS verifies
that the provider agency has been overpaid because of improper billing or
accounting practices or failure to comply with the contract terms.
(c)
The provider agency must provide the detailed information
DHS requests that supports the claims information the provider agency reported.
If the provider agency fails to provide the requested information, DHS may
take adverse action against the provider agency's contract.
(d)
The DHS Internal Audit Department may identify the following
types of errors during the audit/compliance review that may cause the provider
agency's claims to be rejected or identified for recoupment:
(1)
Administrative errors. Administrative errors result from
discrepancies in the provider agency's service delivery documentation. Administrative
errors may result in different outcomes depending on the exact nature of the
error.
(A)
An administrative error is applied to the administrative
portion of the unit of services.
(B)
If the provider agency fails to comply with the corrective
action plan or fails to correct the identified problems and errors, then the
error is applied to the total amount paid for the unit(s) of service.
(2)
Financial errors. Financial errors result when the provider
agency does not have documentation to support reimbursements from DHS. The
error is applied to the total amount paid for the unit(s) of service.
(3)
Both administrative and financial errors. The error is
applied to the total amount paid for the unit(s) of service.
(e)
Administrative and financial errors are determined using
the same formula. DHS takes the total number of administrative errors found
in the audit and develops a statistical projection to determine the total
amount of claims paid to the provider agency during the audit period. DHS
then repeats this procedure using the total number of financial errors.
(f)
DHS may pay the provider agency for underpayments identified
by the audit/compliance review once the provider agency submits a proper and
correct claim, provided the claim can be submitted in accordance with requirements
as described in §49.41 of this chapter (relating to Billings and Claims
Payment). If the provider agency fails to submit a proper and correct claim
within the time limits set by DHS, DHS cannot pay the underpayment.
(g)
DHS may withhold the provider agency's payments and apply
them to the audit/review exception for any payments the provider agency owes
DHS.
(h)
DHS may require corrective action for any finding of the
DHS Internal Audit Department.
§49.52.Fiscal Monitoring.
(a)
Fiscal monitoring is the review of documentation that supports
the provider agency's billing, as it exists at the time Texas Department of
Human Services' (DHS) staff arrive to conduct the review. DHS may recoup payment
if the service delivery documentation does not support the provider agency's
billing.
(b)
DHS may conduct a fiscal monitoring review:
(1)
in conjunction with a compliance monitoring review;
(2)
independently of a compliance monitoring review;
(3)
when a contract is terminated; or
(4)
as a result of conducting a complaint investigation.
(c)
When DHS identifies fiscal monitoring errors, DHS recovers
the funds without extrapolation.
§49.53.Compliance Monitoring.
(a)
Texas Department of Human Services (DHS) conducts monitoring
reviews of the provider agency's services to determine if the provider agency
is in compliance with the contract and with program rules and requirements.
These reviews are conducted at the location where the provider agency is providing
the services unless DHS specifies a different location. DHS offers the provider
agency an orientation and/or training on the use of the monitoring form(s)
at least once before the provider agency is subject to a compliance monitoring
review. This orientation/training is optional, as the provider agency may
accept it or reject it.
(b)
At the conclusion of the review, DHS scores the provider
agency's cumulative level of compliance and the provider agency's compliance
level on each standard reviewed. If the provider agency's overall compliance
score is 90% or above, DHS considers the provider agency in substantial compliance
with the contract and with program rules and requirements. If the provider
agency's overall compliance score is less than 90%, DHS considers the provider
agency out of substantial compliance with the contract and with program rules
and requirements, and the provider agency is subject to corrective action
and may be subject to sanctions. Even if the provider agency's overall compliance
score is 90% or above, the provider agency is subject to corrective action
for each individual standard that falls below 90% compliance.
(c)
During the monitoring review, the provider agency must
provide:
(1)
adequate working space for reviewing the records;
(2)
every record DHS requests for review; and
(3)
copies or access for DHS staff to make needed copies of
documents during the course of the review.
(d)
During the monitoring review, DHS may:
(1)
review a sample of client records to determine the provider
agency's compliance with contract requirements;
(2)
review consumer satisfaction surveys the provider agency
conducted;
(3)
interview clients and staff;
(4)
observe clients and staff;
(5)
consult with others, as appropriate; and
(6)
conduct other activities, as appropriate.
(e)
DHS may conduct follow-up compliance monitoring reviews
to determine if the provider agency has corrected the deficiencies identified
at the preceding formal monitoring review(s). These reviews may:
(1)
be focused reviews using targeted samples; and
(2)
focus only on those standards that DHS determined to be
out of compliance at the immediately preceding formal monitoring review(s);
(f)
DHS may expand a compliance monitoring review period or
the review sample at any time.
§49.54.Administrative Review.
(a)
The provider agency may request an administrative review
of the review team's methodology when the provider agency suspects a formal
compliance monitoring or an audit/compliance review may not have been conducted
according to established rules and procedures.
(b)
The provider agency's request for an administrative review
must:
(1)
be in writing;
(2)
identify the rules and procedures the provider agency believes
the Texas Department of Human Services (DHS) failed to follow;
(3)
state the basis for believing the review was not conducted
according to established rules and procedures; and
(4)
be received by DHS within 10 calendar days of the provider
agency's receipt of the written review findings.
(c)
DHS gives the provider agency written notice of the results
of the administrative review via certified mail.
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 July 29, 2003.
TRD-200304611
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: September 14, 2003
For further information, please call: (512) 438-3734
40 TAC §§49.61 - 49.63
The new sections are proposed under the Human Resources Code,
Chapters 22 and 32, which authorizes DHS to administer public and medical
assistance programs, and under Government Code, §531.021, which provides
the Texas Health and Human Services Commission with the authority to administer
federal medical assistance funds.
The new sections affect the Human Resources Code, §§22.0001 -
22.038 and §§32.001 - 32.053.
§49.61.Sanctions.
(a)
The Texas Department of Human Services (DHS) may impose
a sanction when the provider agency fails to follow the terms of the provider
agency's contract and/or the provider agency fails to comply with program
rules, policies, and procedures. DHS may impose sanctions for reasons including:
(1)
DHS's determination that client health and safety are jeopardized;
(2)
the provider agency's failure to comply with its corrective
action plan;
(3)
the provider agency's failure to follow an agreed-upon
audit resolution payment plan;
(4)
the provider agency's failure to submit an acceptable cost
report;
(5)
the provider agency's failure to provide services according
to the contract and/or program requirements;
(6)
the provider agency's failure to maintain a current required
license or the provider agency allowing the expiration of any required license;
(7)
the provider agency's relocation to a new facility address
that does not have the appropriate license;
(8)
the provider agency's exclusion from contracting with DHS
or with a contracted program;
(9)
validated report(s) of abuse, neglect, or exploitation
when the perpetrator is an owner, employee, or volunteer who has direct access
to clients;
(10)
the provider agency's solicitation of clients from another
provider agency; or
(11)
the provider agency's failure to deliver Community Care
services for six consecutive months.
(b)
Types of sanctions include:
(1)
Recoupment. DHS collects money the provider agency owes
as the result of overpayments and/or other billing irregularities.
(2)
Vendor hold. DHS withholds the provider agency's contract
payments. DHS may put one or all of the provider agency's contracts on vendor
hold. The vendor hold is released when DHS determines the provider agency
has resolved the reason(s) for the hold. In addition to the reasons listed
in subsection (a) of this section, DHS may place a vendor hold on provider
agency's contract(s):
(A)
for failure to comply with program requirements;
(B)
to recoup overpayments made to the provider agency; or
(C)
to recover any audit exceptions assessed against the provider
agency.
(3)
Involuntary contract termination. DHS may terminate the
provider agency's contract for cause by citing the provider agency's failure
to comply with the terms of the contract or with DHS program rules, policies,
and procedures.
(4)
Suspension. DHS may temporarily suspend the provider agency's
right to conduct business with DHS. The causes for and conditions of suspension
are described in §69.277 of this title (relating to Causes for and Conditions
of Suspension). A suspension is in effect until an investigation, hearing,
or trial is concluded and DHS can make a determination about the provider
agency's future right to contract. DHS may impute the conduct of an individual,
corporation, partnership, or other association to the contractor.
(5)
Debarment. DHS may choose to not allow a provider agency
to conduct business with DHS, in any capacity, for a certain period of time.
The causes for and conditions of debarment are described in §69.276 of
this title (relating to Causes for and Conditions of Debarment). DHS debars
a provider agency for a specific period of time, with the maximum period of
debarment being six years. DHS may impute the conduct of an individual, corporation,
partnership, or other association to the contractor.
(c)
The provider agency may appeal any adverse action DHS takes
against its contract. To appeal an action:
(1)
the provider agency must request the appeal in writing
in accordance with Chapter 79 of this title (relating to Legal Services);
and
(2)
the DHS Hearings Division must receive the provider agency's
request for an appeal within 15 calendar days after the provider agency receives
the adverse action notice letter from DHS.
(d)
An appeal does not delay any adverse action except contract
termination. If the provider agency appeals the termination of a contract,
DHS reinstates the provider agency's contract. However, DHS may continue to
transfer the provider agency's clients. In addition, DHS may place a vendor
hold on the contract under appeal, and DHS does not refer any new clients
to the provider agency while the appeal is pending. If the provider agency
prevails on appeal, DHS allows:
(1)
the provider agency's contract to remain in effect;
(2)
client referrals to resume; and
(3)
the provider agency's former clients an opportunity to
return to the provider agency.
(e)
If DHS prevails on the appeal, the original date of termination
is re-imposed.
§49.62.Contract Termination Without Cause.
The Texas Department of Human Services may terminate the provider agency's
contract without stating cause by giving the provider agency written notice,
as stated in the contract, of the impending termination.
§49.63.Recontracting.
(a)
If the Texas Department of Human Services (DHS) involuntarily
terminates the provider agency's provisional Primary Home Care/Family Care,
Community Based Alternatives/Home and Community Support Services, or Consolidated
Waiver Program contract, the provider agency, except as provided under subsection
(b)(1) of this section, may not recontract for any Community Care program
for at least 24 months after the effective date of termination.
(b)
The provider agency may not recontract with DHS for at
least six months after the effective date of termination when:
(1)
DHS involuntarily terminates the provider agency's contract(s)
because the provider agency failed to provide services to any DHS clients
for a period of six consecutive months; or
(2)
DHS involuntarily terminates any non-provisional Community
Care contract.
(c)
If DHS does not renew the provider agency's provisional
contract due to the provider agency's noncompliance with program-specific
rules, the provider agency cannot enter into another contract for the same
Community Care program for at least 24 months after the effective date of
expiration.
(d)
If the provider agency chooses to voluntarily withdraw
from a provisional contract, the provider agency cannot enter into another
contract for the same Community Care services for at least 12 months after
the effective date of voluntary termination.
(e)
DHS does not recontract with a provider agency if, in DHS's
opinion, the provider agency may not provide acceptable services under the
contract.
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 July 29, 2003.
TRD-200304612
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: September 14, 2003
For further information, please call: (512) 438-3734
Chapter 175.
GENERAL RULES OF THE VETERANS LAND BOARD
Subchapter A. GENERAL RULES AND CONTRACTING FINANCING
40 TAC §175.3
The Veterans Land Board of the State of Texas (the "Board")
proposes an amendment to Title 40, Part 5, Chapter 175 of the Texas Administrative
Code, §175.3 relating to Land Selection of the General Rules of the Veteran
Land Board. This amendment will reduce the minimum acreage requirement from
5 acres to 1 acre. This amendment will also clarify some language relating
to the title insurance requirement and to the purchase of land previously
owned by a Veteran or the Veteran's spouse.
Section 161.281 of the Texas Natural Resources Code authorizes the Board
to change the minimum acreage to no less than 1 acre. Section 161.214 authorizes
the Board to accept insurable title. Section 161.503 of the Texas Natural
Resources Code authorize the Board to adopt rules for the mortgage program.
The Board finds that the price of land has increased. The number of applications
for land loans has decreased as the price of land has increased. The Board
finds that it serves the best interest of the programs if the Board's acreage
minimum is adjusted to match market changes. The amendment to §175.3(a)(2)
will reduce the minimum acreage amount to 1 acre. Also, the Board finds that
the industry standard is to require insurable title. The change to §175.3(a)(3)
will makes the Board's requirement insurable title and not marketable title.
The change to §175.3(c) will clarify that the Board will not purchase
an interest owned by the Veteran or the Veteran's spouse, except as indicated
in the rule.
This amendment is proposed because of the amendments to §161.281 and §161.214
of the Texas Natural Resources Code in House Bill 2396, 78th Texas Legislature.
The amendment will not be effective until the statutory change is effective.
Paul Moore, Executive Secretary of the Veterans Land Board, has determined
that for each year of the first five years that the section as proposed will
be in effect, there will be no significant fiscal implication to state or
local government as a result of administering this section as amended. The
Veterans Land Board is supported by the Veterans Land Fund. Though the amount
of loans should increase, no appropriated funds are used to run the Veterans
Land Board.
Paul Moore, Executive Secretary of the Veterans Land Board, has determined
that for each year of the first five years that the section as proposed will
be in effect, the public will benefit because the proposed amendment will
allow the Board to increase the number of loans it makes to Veterans.
Mr. Moore has determined that the proposed amendment will have little or
no significant effect on small businesses during each year of the first five
years the section is in effect.
Mr. Moore has also determined that during each year of the first five years
the proposed amendment is in effect, the anticipated economic cost to persons
who are required to comply with the section will be insignificant. Persons
who seek financing from the Board through the Program will pay the same fees
to the Board, and costs to third parties, as previously required.
Paul Moore, Executive Secretary of the Veterans Land Board has determined
that during each year of the first five years the proposed amendment is in
effect, the anticipated impact on local employment will be beneficial. It
is expected that this change will increase real estate transactions and related
employment.
Comments may be submitted to Melinda Tracy, Legal Service, General Land
Office of the State of Texas, 1700 N. Congress Avenue, Austin Texas, facsimile
(512) 463-6311, by no later than 30 days after publication.
The amendment to this section is proposed under the Natural Resources
Code, Title 7, Chapter 161, §§161.001, 161.061, 161.063, 161.218,
161.222, 161.233, 161.281, and 161.283, 161.503. These sections authorize
the Board to adopt rules that it considers necessary and advisable for the
Land Program.
The proposed amendment affects §§161.214, 161.281, and161.503
of the Natural Resources Code.
§175.3.Land Selection.
(a)
Land selected by a veteran for purchase or financing through
the program must:
(1)
be situated entirely in Texas;
(2)
contain at least
one acre
[
(3)
have
insurable
[
(4)
if more than one tract of land is selected the tracts must
be contiguous as defined by the board; or, if not contiguous, then one tract
must meet the minimum acreage requirement, and the use, location, and value
of the tracts would permit the board, in its sole discretion, to consider
the combination of the tracts as one tract; and
(5)
have direct access to a public road. If the tract does
not directly abut a public road, a perpetual access easement appurtenant must
be conveyed to the board, or other board approved access must be provided.
This easement must meet the county width requirement for publicly maintained
roads and, in any event, must be at least 60 feet wide. The easement must
be conveyed to the board by general warranty deed or dedicated to the public
or subdivision owners. If the easement is conveyed to the board by deed, it
must be described by metes and bounds. This description must contain specific
tie calls to both the tract and a public road. If the easement is dedicated,
the deed to the board must refer to the recording information of the subdivision
plat or other dedication instrument. If the board finances the transaction
the tract must have similar easement rights. Easements and roads must be usable
by standard automobiles during inclement weather.
(b)
The board will not purchase or finance a tract of land
that was wholly owned by the veteran or his spouse, separately or jointly,
within 3 years of the date of application.
(c)
If the veteran or his
or her
spouse owns an
undivided interest in the land that he or she has selected, the board may
approve the application after the tract has been partitioned and a copy of
the recorded partition deed is furnished to the board. The board may purchase
only that interest not owned by the applicant
or the applicant's spouse
. If the land is not partitioned because the applicant is purchasing
the remaining undivided interest not currently owned by the applicant
or the applicant's spouse
, the board may nonetheless approve the purchase
or financing of the tract. In such cases, the purchase price or loan amount
will be limited to the value of the interest not previously owned by the applicant
or the applicant's spouse
. Whether or not the land is partitioned however,
title to the entire tract must be conveyed to the board, or the board must
be in a first lien position as to the entire tract.
(d)
Except as provided in subsection (c) of this section, the
board will not purchase or finance land in which the seller or any prior owner
is to retain any interest, other than a mineral interest or an access or utility
easement.
(e)
The board will not approve any application that will result
in a refinancing of a prior purchase by a veteran or his or her spouse.
(f)
A tract must be free and clear of all liens when the board
takes title or perfects its lien.
(g)
The board reserves the right to refuse to purchase or finance
any tract for any reason.
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 July 31, 2003.
TRD-200304645
Larry L. Laine
Chief Clerk, Deputy Commissioner
Texas Veterans Land Board
Earliest possible date of adoption: September 14, 2003
For further information, please call: (512) 305-9129
Chapter 49.
CONTRACTING FOR COMMUNITY CARE SERVICES
Subchapter B. CONTRACTOR REQUIREMENTS
Subchapter C. RECORDS
Subchapter D. BILLINGS AND PAYMENT
Subchapter E. AUDITS, MONITORING, AND REVIEWS
Subchapter F. SANCTIONS AND TERMINATION
Part 5.
TEXAS VETERANS LAND BOARD
five acres
]
(excluding, as defined by the board, inundated or submerged land, or otherwise
unusable land);
marketable and good
]
title
under conditions acceptable to the board
;