Subchapter E. INCOME

The Texas Department of Human Services (DHS) adopts amendments to §§19.216, 19.602, 19.1504, 19.1510, 19.1921, 19.2008, and 19.2116 without changes to the proposed text published in the June 27, 2003, issue of the Texas Register (28 TexReg 4847).

Justification for the amendments is to implement changes mandated by the 78th Texas Legislature. Justification for the amendment to §19.216 is to implement changes to the Health and Safety Code, §242.097, that exempt veterans homes from paying a trust fund fee. Justification for the amendment to §19.602 is to implement changes to the Health and Safety Code, §242.125, that require facility owners and employees to report abuse, neglect, or exploitation of residents to DHS. The amendment also identifies allegations or findings that must be reported to local or state law enforcement agencies. Justification for the amendment to §19.1504 is to implement changes to the Health and Safety Code, §242.603, that revises medication storage requirements. Justification for the amendment to §19.1510 is to implement changes to the Occupation Code, §562.108, that allow a U.S. Department of Veterans Affairs or other federally operated pharmacy to maintain emergency medication kits for veterans homes. Justification for the amendment to §19.1921 is to implement changes to the Health and Safety Code, §250.003, that require nursing homes and assisted living facilities to obtain criminal history checks for all employees. Justification for the amendment to §19.2008 is to implement changes to the Health and Safety Code, §242.126, that outline complaint and incident investigation procedures. Justification for the amendment to §19.2116 is to implement changes to the Health and Safety Code, §242.095, that require the Veterans Land Board to pay the fee for veterans home trustees.

DHS received no comments regarding adoption of the amendments.

Subchapter C. NURSING FACILITY LICENSURE APPLICATION PROCESS

Subchapter E. RESIDENT RIGHTS

The Texas Department of Human Services (DHS) adopts the repeal of §§46.1, 46.1001, 46.2001, 46.2005, 46.2006, 46.3001, 46.3005, 46.3007, 46.4004 - 46.4006, 46.5001, 46.7002, 46.8001 - 46.8003. DHS also adopts new §§46.1, 46.3, 46.11, 46.13, 46.15, 46.17, 46.19, 46.21, 46.23, 46.25, 46.27, 46.31, 46.33, 46.35, 46.37, 46.39, 46.41, 46.43, 46.45, 46.47, 46.49, 46.51, 46.53, 46.61, 46.63, 46.65, 46.67, 46.69, and 46.71, in its Contracting to Provide Assisted Living and Residential Care Services chapter.

New §§46.11, 46.35, 46.37, 46.39, 46.65, 46.67, and 46.69 are adopted with changes to the proposed text published in the June 27, 2003, issue of the Texas Register (28 TexReg 4852). The repeal of §§46.1, 46.1001, 46.2001, 46.2005, 46.2006, 46.3001, 46.3005, 46.3007, 46.4004 - 46.4006, 46.5001, 46.7002, 46.8001 - 46.8003; and new §§46.1, 46.3, 46.13, 46.15, 46.17, 46.19, 46.21, 46.23, 46.25, 46.27, 46.31, 46.33, 46.41, 46.43, 46.45, 46.47, 46.49, 46.51, 46.53, 46.61, 46.63, and 46.71 are adopted without changes to the proposed text.

The repeals and new sections were undertaken as part of a DHS project to rewrite agency rules in plain language format to make them easier to use and understand. The new sections also incorporate existing policy into rule language and provide clearer explanations of program policies and definitions in an effort to be as clear and unambiguous as possible. In addition, the proposal incorporates provider requirements for the Community Based Alternatives (CBA) Assisted Living/Residential Care (AL/RC) Program and the Community Care for Aged and Disabled (CCAD) RC Program into the same rule chapter, making them easier for providers and the public to access.

Justification for new §§46.3(18), 46.21(e), 46.27(c)(2)(F)(iv), 46.37, and 46.49(d)(1) is to add a room and board requirement for the CCAD RC Program. In order to meet the funding levels allocated to DHS in the 2004 - 2005 General Appropriations Act, the proposal requires clients enrolled in the CCAD RC Program to make a room and board payment directly to the facility. Adding this requirement will provide DHS with greater flexibility in funding and administering the CCAD RC Program. This will not increase the total amount of money paid by clients, but will allow this program to continue to serve the needs of enrolled clients within available funding levels.

DHS received written comments from the Texas Assisted Living Association and three individuals and additional oral comments at a public hearing on July 11, 2003. A summary of the comments and DHS's responses follow.

Comment: Several comments were received expressing concerns about freezing Title XX services. A suggestion was made that each region be allowed to commit the funds that would be needed within that region to fund Residential Care and have the flexibility within that region to shift money between programs and avoid a statewide freeze.

Response: The comment does not directly address a proposed rule so there is no change to a rule. DHS is looking at flexibility in providing Title XX services, which would allow provision of residential care services to people in this environment.

Comment: DHS received a general comment regarding receipts, ledgers, and other bookkeeping documentation. DHS was asked to confirm that facilities may maintain bookkeeping records in a computerized format so long as the records otherwise conform to these regulations.

Response: Sections §46.37(d) and §46.37(e) already use the language "in any format" in reference to documentation requirements. DHS revises §46.67(a)(1) to state that written records may be in any format.

Comment: Concerning §46.11(b)(2), a comment was received stating that current DHS policy allows for multiple facilities to be on the same contract. The commenter appears to be concerned that DHS is changing the contracting practice in this program.

Response: This is not a change in current practice. DHS will continue to use the same contract procedures. DHS adopts the paragraph without change.

Comment: Concerning §46.11(d)(3), a commenter suggested that paragraph (3) may not be necessary because designated rooms are not required by rule.

Response: DHS agrees and deletes this paragraph because the rules no longer require designated rooms.

Comment: In regards to §46.11(d)(4), a concern was expressed that calling an IDT meeting before refusing a referral would bottleneck the system.

Response: The facility contracts to provide services to clients who are the focus of the program. DHS recognizes that a facility may not be able to serve a client. The IDT Meeting is necessary to ensure all options for the client are explored prior to the facility refusing to accept a referral. DHS adopts the paragraph without change.

Comment: Concerning §46.21(h), comments were received expressing concerns that a facility must bill the double occupancy (Residential Care Apartment) rate for clients in the single occupancy (Assisted Living Apartment) setting who request double occupancy. Commenters would also like the clients currently sharing an apartment be "grand fathered" in at the single occupancy rate.

Response: The Health and Human Services Commission (HHSC) rate setting division is responsible for determining the rates for DHS programs. Per HHSC rate setting "The double occupancy rate should be used for all double occupancy situations. The double occupancy rate charged for the two residents is the intended payment rate for the provider, not the single occupancy rate charged for two residents." HHSC rate setting also states the current clients cannot be "grand fathered" in and must be billed using the proper rate effective September 1, 2003. DHS adopts this section without change.

Comment: In regards to §46.23(2), concerns have been expressed about sanctions based on fiscal monitoring, particularly when the errors are simple mistakes, such as the errors contemplated by subpart (B) and regarding the 12% administrative penalty for simple isolated errors.

Response: The 12% sanction is the administrative portion of the rate. Administrative errors are designed to review service delivery documentation for correct completion of the service delivery records to support billing. The errors listed in §46.23(2)(B)(i) - (xi) are critical to the correct completion of the service delivery documentation. Fiscal monitoring, both administrative and financial errors, is designed to review the documentation that supports service delivery and billing. DHS adopts this subsection without change.

Comment: Concerning §46.35, a commenter expressed concern about the three-day timeframe to convene the Interdisciplinary Team (IDT). One commenter proposed additional language for the rule.

Response: DHS agrees with the comment. DHS accepts the proposed language, with minor stylistic changes, allowing the facility to convene an IDT meeting if all the members are not available to attend the meeting. DHS also adds language that requires the documentation of an IDT meeting without all the IDT members be sent to the Regional Administrator for review. This will ensure the proper DHS staff review the documentation and take the appropriate action.

Comment: In regards to §46.35, a question was asked if sharing health information during an IDT Meeting would be exempt from the consent and authorization requirements of the Health Insurance Portability and Accountability Act (HIPAA).

Response: DHS believes that facilities are able to comply with both the IDT meeting requirements and the HIPAA privacy rules. Because the IDT meets to discuss service delivery issues, DHS believes that an IDT meeting will usually qualify as a "treatment" activity of the facility under the HIPAA privacy rules. If an IDT meeting qualifies as a "treatment" activity of the facility, the HIPAA privacy rules give the facility the option of getting the client's consent to use or disclose protected health information for this activity. Under these circumstances, the facility is not required to get an authorization from the client to use or disclose protected health information. However, DHS cannot conclude that IDT meetings will always qualify as treatment activities of the facilities. Whether they will qualify as treatment activities of the facilities will depend on the precise purpose of the meeting and, perhaps, who attends the meeting. Furthermore, DHS is not responsible for enforcing the HIPAA privacy rules. Facilities should consult with their own privacy officers and lawyers to determine when they should get consents or authorizations to use or disclose protected health information. DHS is not changing this section in response to this comment.

Comment: Concerning §46.37(c)(2) comments were received expressing many concerns about this subsection. The commenters state the rule does not address those instances when a client or client's representative is unable or unwilling to be contacted, and conflicts with monthly billing cycles and statements. Concerns were also expressed about credit balance refunds. One of the commenters provided some alternative language for §46.37(c)(2).

Response: DHS accepts the proposed language with minor stylistic changes and changes the paragraph. The commenter also suggested five days for the client or the client's representative to respond in §46.37(c)(2)(C). DHS believes this is not enough time, and changes this to 35 days. This allows the client or the representative more time to respond to the notice.

Comment: Concerning §46.37(d)(3), a request was made to not require the payment details on the receipt, if those details are on the copayment and room and board ledger. The commenter requested the facilities be allowed to receipt how much money was paid and then post to the ledger, with the ledger reflecting all charges, credits, and payments per GAAP standards.

Response: DHS agrees, and revises the paragraph to state "Copayment and room and board receipts must contain the following elements if the elements are not contained in the copayment and room and board ledger described in subsection (e) of this section."

Comment: In regards to §46.37(e)(3), a request was made to allow 35 days for ledger entries to be completed.

Response: DHS agrees, and revises §46.37(e)(3) to allow 35 days or by the next billing cycle, whichever is sooner.

Comment: In regard to §46.37(f), several commenters requested deadline be changed to 10 working days. This will give providers a little more time to issue refund checks.

Response: DHS agrees, and changes the deadline to 10 working days.

Comment: In regards to §46.39(d)(3)(B), DHS received several comments stating that assisted living facilities do not have nurses on staff. The commenters would "just like to retain the flexibility that we have under our licensing standards to not have to hire facility nurses to simply do assessments."

Response: DHS does not require the nurse to be a facility employee. DHS revises the rule language in §46.39(d)(3)(B) to clarify that the nurse who completes the medication administration portion of the assessment does not have to be a facility employee.

Comment: In regards to §46.39(d)(3)(B), several comments were received regarding the number of assessments completed for a CBA AL/RC client. The commenters state they feel the three assessments required for CBA AL/RC are duplicative. The commenters would like to "pare it down to where we can limit the redundant assessments."

Response: There are three separate assessments required for a CBA AL/RC client, all serving different purposes and collecting different information. Form 3652 is done as a part of determining client eligibility for the CBA program, and is not a service plan. The HCSS agency completes an assessment that is a service agreement between the HCSS agency and the client, and includes the services the HCSS agrees to provide to the client. The assisted living facility needs to complete an assessment to develop a service agreement between the client and the assisted living facility. This assessment can be used to fulfill the need for an assessment required by licensure. DHS may review consolidation of the assessments in the future. DHS is not changing this subparagraph in response to this comment.

Comment: In regards to §46.39(d)(3)(B), concerns have been expressed regarding the use of a nurse to complete or sign-off on the medication administration portion of the assessment for CBA AL/RC clients. The comments refer to assisted living licensure regulations in 40 TAC §92.41(e). This item does not allow an assisted living facility to "admit or retain." an individual who requires the services of facility employees who are licensed nurses on a daily or regular basis." Another commenter stated that the intent of the "Medications" section "is for facility staff to determine if the resident is able to Self-Administer Medications."

Response: A CBA AL/RC facility is required to provide administration of medications at the level that meets the client's needs as a part of the CBA AL/RC program. The rate for CBA AL/RC includes payment for administration of medication. Administration of medications does not violate §92.41(e). Assisted living facilities are required by statute and rules to provide personal care. The statutory definition of personal care includes the administration of medication. A registered nurse must assess what level of assistance a client needs with medication, and develop a plan of care for medication administration. If the client is unable to self-medicate, the registered nurse must ensure the plan of care for administration of medications is followed. DHS is not changing this subparagraph in response to this comment.

The intent of Section III, Part A, Item 5 of Form 3050 is to determine what level of assistance a client needs with his medications. The CCAD RC Program only allows assistance with self-administered medications. However, the CBA AL/RC Program requires the facility to provide whatever level of medication assistance the client needs, including direct administration of medications. Therefore, for the CBA AL/RC program, the "Medications" section of Form 3050 is to determine how much assistance the client needs with his medications, and a nurse must complete this portion of the assessment.

Comment: In regards to §46.63(d), comments were received requesting a rule change to allow the facility to apply interest earned on a trust fund account to the banking fees on the account. The comments stated that this would be consistent with the Federal SNF guidelines.

Response: Language in this section was patterned after Medicaid Nursing Facility trust fund rules. Banking fees from joint accounts and facility-choice individual accounts are the responsibility of the facility. Banking fees on a client-choice individual account are the responsibility of the client. DHS adopts this section without change.

Comment: Concerning §46.65(d)(7), a request was made to allow petty cash fund reconciliation monthly, as opposed to every 14 days. Comments received state many clients who utilize trust funds pay their bills from their trust fund account, and then get their remaining monthly income as cash from the petty cash fund early in the month. Therefore there is no further activity in the petty cash fund.

Response: DHS agrees, and revises the paragraph.

Comment: In regards to §46.69(b), a request was made to delete the requirement to refund any interest accrued when the trust fund is refunded. Comments received state that the trust fund rules only require the facility to post interest when the bank pays the interest.

Response: DHS agrees, and revises the subsection to state that this refund must include any interest reported as of the date of the request.

Subchapter A. SCOPE

Subchapter A. INTRODUCTION

Subchapter F. IN-HOME AND FAMILY SUPPORT PROGRAM

The Texas Department of Human Services (DHS) adopts amendments to §§79.1917, 79.2001, and 79.2003 in its Legal Services chapter. DHS adopts the amendments to §79.1917 and §79.2003 with changes to the proposed text published in the June 27, 2003, issue of the Texas Register (28 TexReg 4879). DHS adopts the amendment to §79.2001 without changes to the proposed text.

Justification for the amendments is to implement the provisions of House Bill (HB) 2292, 78th Texas Legislature, which amended the Government Code, §531.114. HB 2292 changed the definition of an intentional program violation and the disqualification time frames for the Temporary Assistance for Needy Families (TANF) Program. The adoption provides: (1) the definition of an intentional program violation in the TANF Program; (2) disqualification periods imposed when a client commits an intentional program violation; and (3) the remedy for an Administrative Disqualification Determination as mandated by the legislature.

DHS received one written comment from an individual. A summary of the comment and DHS's response follow.

Comment: The proposed changes to §79.1917 create not only judicial review for TANF disqualification decisions, but also for Food Stamp Program disqualification decisions. It is my understanding that HB 2292 only authorizes judicial review for TANF disqualifications. Therefore, DHS should not enact a rule that goes beyond what was intended by the legislature.

Response: DHS added language to §79.1917(c)(2) to clarify that decisions in TANF cases may be appealed through judicial review.

DHS has initiated a minor editorial change to the text of §79.2003 to correct punctuation.

Subchapter T. ADMINISTRATIVE FRAUD DISQUALIFICATION HEARINGS

Subchapter B. APPLICATION PROCEDURES