Part 1.
TEXAS DEPARTMENT OF HUMAN SERVICES
Chapter 2.
MEDICALLY NEEDY AND CHILDREN AND PREGNANT WOMEN PROGRAMS
The Texas Department of Human Services (DHS) adopts the repeal of §§2.1002,
2.1004, 2.1006, 2.1008, 2.1010, 2.1012, 2.1014, and 2.1016, and adopts new §§2.1,
2.11- 2.18, and 2.32-2.38 in its Medically Needy and Children and Pregnant
Women Programs chapter. New §§2.1, 2.32, and 2.37 are adopted with
changes to the proposed text published in the June 27, 2003, issue of the
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. Because the Medically Needy (MN) and Children and Pregnant Women
(CPW) programs have similar rules and are both Medicaid programs, the rules
governing these programs are incorporated into the same chapter, making them
easier for providers and the public to access. The repeal of rules in DHS's
Chapter 4, concerning the CPW Program, is adopted elsewhere in this issue
of the
Texas Register
.
Justification for new §§2.11(1)(A), 2.14(2), and 2.34(2)(C) is
to distinguish resource limits for the MN and CPW programs from those of the
Temporary Assistance for Needy Families (TANF) Program. The three programs
no longer have the same resource limits, since House Bill (HB) 2292 and Senate
Bill (SB) 1862, 78th Texas Legislature, amended the Human Resources Code, §31.032,
to reduce the TANF asset limit to $1,000.
Justification for new §2.32 is to comply with the new provisions of
the Human Resources Code, §32.025 and §32.026, amended by SB 1522,
SB 1862, and HB 2292, 78th Texas Legislature, which permit DHS to require
personal interviews for applications and recertifications of children's Medicaid
when necessary to obtain information needed for eligibility verification.
DHS received two written comments from the Center for Public Policy Priorities
and the Coalition for Nurses in Advanced Practice. Additional oral comments
were received at the Medical Care Advisory Committee meeting on July 9, 2003,
and at a public hearing on July 11, 2003. A summary of the comments and DHS's
responses follow.
Comment: Concerning §2.1(12), one commenter noted that the definition
of a provider does not include important categories of Medicaid providers.
DHS should use language proposed by the Health and Human Services Commission
in an amendment to Title 1, Texas Administrative Code, §355.201(4) published
in the June 27, 2003 issue of the
Texas Register
, that incorporates all categories of providers.
Response: DHS agrees, and has changed the definition of provider to include
all categories of providers.
Comment: Concerning §2.14(6)(C) and §2.34(6)(C), one commenter
suggested that DHS needs to carefully monitor its application of the policy
to request Social Security Numbers (SSNs) from non-benefit recipients. Making
non-applicant budget group members think they need to provide an SSN to DHS
may unwittingly lead persons not authorized to obtain an SSN to apply for
one.
Response: DHS agrees, and will be clear in instructions to staff and on
written materials, such as the application for the Medicaid Program, that
it is voluntary for people not applying for benefits to provide SSNs. DHS
will handle this through internal procedures and does not believe this requires
the adoption of a specific rule. DHS adopts these subparagraphs without change.
Comment: Concerning §2.32(a)(1)(B) and (C), one commenter expressed
concern that the proposal may lead to unnecessary face-to-face interviews.
Response: DHS will continue to provide guidance to staff regarding the
circumstances in which a face-to-face interview may be necessary and expects
local DHS staff to exercise prudent discretion in this matter. DHS will handle
this through internal procedures and does not believe this requires any change
in the proposed rule. DHS adopts these subparagraphs without change.
Comment: Regarding §2.32(a)(1)(B) and (C), one commenter expressed
concern that a private company contracted in the future to perform eligibility
functions may not be as reliable as DHS in minimizing unnecessary face-to-face
interviews.
Response: DHS notes this concern.
Comment: Concerning §2.32(b)(1), one commenter suggested that the
reference to DHS be removed as DHS does not deliver the health care orientation.
Response: DHS agrees, and has changed the rule to remove the reference
to DHS.
Comment: Concerning §2.37(b)(2), one commenter noted that the language
in this paragraph conflicts with that in 2.35(4) and should be changed to
clarify what changes children under age 19 must report.
Response: DHS agrees, and has changed the paragraph to clarify that a change
in address and a child leaving or joining the household must be reported.
DHS has initiated a minor editorial change to the text of §2.32(a)(1)(B)
to clarify and improve the accuracy of the section.
Additional comments were received that did not pertain to the rule proposal.
Subchapter A. DEFINITIONS
40 TAC §2.1
The new section is adopted 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.
§2.1.Definitions.
The words and terms used in this chapter have the following meanings,
unless the context clearly indicates otherwise. The definitions apply to the
Medically Needy (MN) and Children and Pregnant Women (CPW) programs.
(1)
Applied income--A portion of a legal parent's income applied
or counted to meet the needs of a minor applicant.
(2)
Budget group--People living as a group at one address with
needs, income, resources, and/or medical expenses in common. The Texas Department
of Human Services (DHS) includes each group member in the Medicaid budget
when determining eligibility, whether or not each group member is individually
Medicaid eligible.
(3)
CPW--The Children and Pregnant Women Program. A program
DHS administers that provides Medicaid benefits to pregnant women and children.
(4)
Caretaker--A person who supervises and cares for a dependent
child. A caretaker must be related to the child, as required by Temporary
Assistance for Needy Families (TANF) rules (detailed in Chapter 3 of this
title (relating to Texas Works)).
(5)
Clearinghouse--A site with staff that process medical bills
submitted by MN applicants who must spend down income to qualify for Medicaid.
Clearinghouse staff determine if the bills are acceptable and when spend down
is met.
(6)
Client--A person who is either an applicant for or a recipient
of Medicaid.
(7)
DHS--The Texas Department of Human Services.
(8)
FPIL--Federal Poverty Income Limit. FPILs are income amounts,
by family size, that represent the dividing line between families who live
above or below the poverty level. The Office of Management and Budget, a federal
agency, periodically calculates, updates, and publishes the FPIL.
(9)
Good cause--An acceptable reason that exempts an applicant
or recipient from a Medicaid requirement. For the purposes of this chapter,
good cause refers to a reason for an applicant or recipient not to cooperate
to obtain medical support from an absent parent or not to comply with third
party resource requirements.
(10)
Health and human services office--An agency other than
DHS that is authorized to accept Medicaid applications.
(11)
MN--The Medically Needy Program. A program DHS administers
that provides Medicaid benefits to pregnant women, children, and parents or
caretakers of children whose income is too high to qualify for other Medicaid
programs and who have high medical expenses.
(12)
Provider--A health care practitioner, institution, or
other entity that is enrolled in the medical assistance program and is authorized
to submit claims for payment or reimbursement of medical assistance.
(13)
Spend down--The amount of income that an MN applicant
must apply toward incurred medical bills before he can be certified for Medicaid.
(14)
TANF--The Temporary Assistance for Needy Families Program.
(15)
Third-party--A person or organization, other than DHS
or a person living with the applicant, who may be liable as a source of payment
of the applicant's medical expenses (for example, a health insurance company).
This agency hereby certifies that the adoption has been
reviewed by legal counsel and found to be a valid exercise of the agency's
legal authority.
Filed with the Office of
the Secretary of State on August 11, 2003.
TRD-200305021
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Effective date: September 1, 2003
Proposal publication date: June 27, 2003
For further information, please call: (512) 438-3734
40 TAC §§2.11 - 2.18
The new sections are adopted 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.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on August 11, 2003.
TRD-200305022
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Effective date: September 1, 2003
Proposal publication date: June 27, 2003
For further information, please call: (512) 438-3734
40 TAC §§2.32 - 2.38
The new sections are adopted 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.
§2.32.Application Procedures.
(a)
The Texas Department of Human Services (DHS) processes
Children and Pregnant Women Program applications using the application rules
of the Temporary Assistance for Needy Families (TANF) Program, as detailed
in Chapter 3 of this title (relating to Texas Works), with the following exceptions:
(1)
For applicants under the age of 19, DHS:
(A)
processes applications and reviews active cases by mail,
telephone, or face-to-face interview;
(B)
may conduct a personal interview with an initial applicant
if DHS has received conflicting information related to household membership,
income, or assets that affects eligibility and the information cannot be verified
through other means;
(C)
conducts a personal interview for recertification of Medicaid
eligibility when there is no associated case record for TANF or food stamps
or adult Medicaid coverage, and DHS has received conflicting information related
to household membership, income, or assets that affects eligibility and the
information cannot be verified through other means;
(D)
allows any office of a state health and human services
agency to accept an initial application; and
(E)
contracts with third parties to accept applications from
hospital districts (including state- owned teaching hospitals), federally
qualified health centers, and county health departments.
(2)
For pregnant applicants who are potentially eligible but
unable to provide proof of eligibility, DHS:
(A)
postpones verifications and provides Medicaid coverage
to ensure access to medical care within 30 days of application;
(B)
continues the coverage of women who provide postponed verifications
by the 30th day after the application date; and
(C)
denies the coverage of those who fail to meet the 30-day
deadline.
(3)
There are no conditions limiting the designation of an
authorized representative.
(b)
Parents or guardians of Medicaid children under the age
of 19 must:
(1)
attend a health care orientation;
(2)
accompany the child on a visit to a health care provider;
or
(3)
meet with a DHS representative to discuss the child's eligibility
and, as appropriate, receive counseling on the child's need for comprehensive
health care.
(c)
Parents or guardians of Medicaid children under the age
of 19 who are eligible for the Texas Health Steps Program must:
(1)
comply with the Texas Health Steps regimen of health care
requirements, as required by the Texas Department of Health in 25 TAC Chapter
33, Subchapter J (relating to Texas Health Steps Medical Case Management);
or
(2)
meet with a DHS representative to discuss the child's eligibility
and, as appropriate, receive counseling on the child's need for comprehensive
health care.
(d)
The services and policies in subsection (b) of this section
and §2.35(3) and (4) of this chapter (relating to Medicaid Eligibility
Dates) are administered according to the procedures in DHS's Medicaid simplification
operating guidelines. The guidelines are published, available to the public,
and are updated regularly to reflect procedural changes.
§2.37.Requirement to Report Changes.
(a)
Children and Pregnant Women Program (CPW) recipients must
report changes as required by Temporary Assistance for Needy Families (TANF)
Program rules, and within the time frames specified by TANF rules as outlined
in Chapter 3 of this title (relating to Texas Works).
(b)
In addition to the reporting required by TANF Program rules,
a recipient of the CPW Medicaid Program who is:
(1)
pregnant must report the termination of pregnancy; and
(2)
under age 19 must report a change in address, and a child
leaving or joining the household. The child is continuously eligible, regardless
of reported income and resource changes, until Medicaid eligibility is reviewed.
This agency hereby certifies that the adoption has been
reviewed by legal counsel and found to be a valid exercise of the agency's
legal authority.
Filed
with the Office of the Secretary of State on August 11, 2003.
TRD-200305020
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Effective date: September 1, 2003
Proposal publication date: June 27, 2003
For further information, please call: (512) 438-3734
Subchapter A. PROGRAM REQUIREMENTS
40 TAC §§2.1002, 2.1004, 2.1006, 2.1008, 2.1010, 2.1012, 2.1014, 2.1016
The repeals are adopted 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.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on August 11, 2003.
TRD-200305017
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Effective date: September 1, 2003
Proposal publication date: June 27, 2003
For further information, please call: (512) 438-3734
Subchapter B. MEDICALLY NEEDY PROGRAM REQUIREMENTS
40 TAC §2.19
The Texas Department of Human Services (DHS) adopts new §2.19
without changes to the proposed text published in the June 27, 2003, issue
of the
Texas Register
(28 TexReg 4837).
Justification for the new section is to comply with House Bill 2292 and
Senate Bill 1862, 78th Texas Legislature, which amended the Human Resources
Code, §32.024(i), to state that operation of the Medically Needy (MN)
Program is contingent on the availability of appropriated state funds. New §2.19
makes it clear that operation of the MN Program depends on funds being appropriated
for the program and allows DHS to administer the MN Program if appropriated
funds become available.
DHS received four written comments from the Center for Public Policy Priorities,
the Seton Healthcare Network, the Texas Hospital Association, and the University
Health System. Additional oral comments were received at the Medical Care
Advisory Committee meeting on July 9, 2003, and at a public hearing on July
11, 2003. A summary of the comments and DHS's responses follow.
Comment: Several commenters were concerned that persons who would have
been eligible for the MN program will have reduced access to healthcare as
a result of the program being discontinued. They also commented on the negative
impact of the rule proposal on hospitals and other healthcare providers and
the resulting loss of federal Medicare and Medicaid funds. The proposal will
strain the resources of hospitals and local governments.
Response: DHS notes the concern that the loss of Medicaid eligibility may
result in reduced access to healthcare for some people. The discontinuation
of the MN program is required to stay within the funding levels allocated
to DHS in the 2004-2005 General Appropriations Act. The proposal allows DHS
to continue operation of the MN program when funds become available. At this
time, the MN program will continue to cover eligible children. DHS adopts
this section without change.
Comment: Several commenters said that despite DHS's assertion to the contrary
in the preamble of the proposed rule, published in the June 27, 2003 issue
of the
Texas Register
, there will be a fiscal
effect on state government as a result of discontinuation of the MN Program.
Please clarify this fiscal note.
Response: DHS did not originally cite cost to the state or expected cost
savings for the MN Program in the proposal because the proposal simply conditions
the delivery of this program to be contingent upon available funds. The rule,
therefore, does not put in place a reduction in funding. In reflecting upon
the impact of the 2004-2005 General Appropriation Act, DHS has estimated that
the effect on state government for the first five-year period the sections
are in effect is an estimated additional cost in general revenue funds of
$65,367 in fiscal year (FY) 2004; and an estimated reduction in cost in general
revenue funds of $28,814,458 in FY 2004; $35,100,486 in FY 2005; $40,995,830
in FY 2006; $45,883,339 in FY 2007 and $51,450,766 in FY 2008.
Comment: Several commenters disagreed with the assertion in the preamble
of the proposal that there are no fiscal implications for local governments
as a result of enforcing the section. With the resulting loss of federal Medicare
and Medicaid funds, the proposal will strain the resources of hospitals and
local governments, resulting in local tax increases for public hospitals.
Shifting the costs to local authorities is not a responsible and effective
way of solving state government Medicaid shortfalls.
Response: DHS agrees that the proposal may result in additional costs to
local governments, but is unable to quantify the amount because there are
so many variables involved, such as, for example, the number of persons who
may receive uncompensated care, the kind and level of care that persons would
be seeking, nongovernmental resources, and other resources available to local
governments in different parts of the state.
Additional comments were received that did not pertain to the rule proposal.
The new section is adopted 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.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on August 11, 2003.
TRD-200305018
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Effective date: September 1, 2003
Proposal publication date: June 27, 2003
For further information, please call: (512) 438-3734
40 TAC §2.31, §2.39
The Texas Department of Human Services (DHS) adopts new §2.31
and §2.39 without changes to the proposed text published in the June
27, 2003, issue of the
Texas Register
(28
TexReg 4838).
New §2.31 was undertaken as part of a DHS project to rewrite agency
rules in plain language format to make them easier to use and understand.
Justification for new §2.31(1) and §2.39 is to stay within funding
levels for the Children and Pregnant Women Program allocated to DHS in the
2004-2005 General Appropriations Act. Funding levels for fiscal years 2004
and 2005 are based on lowering the income limit for pregnant women ages 19
and over to 158% of the Federal Poverty Income Limit; therefore, DHS needed
to adopt rules that reflect the budget assumption.
DHS received four written comments from the Center for Public Policy Priorities,
the Seton Healthcare Network, the Texas Hospital Association, the University
Health System. Additional oral comments were received at the Medical Care
Advisory Committee meeting on July 9, 2003, and at a public hearing on July
11, 2003. A summary of the comments and DHS's responses follow.
Comment: Concerning §2.31(1) and §2.39, several commenters were
concerned that pregnant women who would have been eligible for Medicaid under
the higher income limit will have reduced access to healthcare as a result
of the new lower income limit. They also commented on the negative impact
of the rule proposal on hospitals and other healthcare providers and the resulting
loss of federal Medicare and Medicaid funds. The proposal will strain the
resources of hospitals and local governments.
Response: DHS notes the concern that the loss of Medicaid eligibility may
result in reduced access to healthcare for some people. The lower income limit
for pregnant women ages 19 and over is required to stay within the funding
levels allocated to DHS in the 2004-2005 General Appropriations Act. The proposal
allows DHS to raise the income limit when funds become available.
Comment: Concerning §2.31(1) and §2.39, several commenters said
that the fiscal impact in the preamble of the proposed rules, published in
the June 27, 2003 issue of the
Texas Register
,
is incorrect. DHS did not take into account potential clients from the Emergency
Services Program (TP30).
Response: DHS acknowledges that the original cost savings estimated for
the CPW Program did not take into account clients from the Emergency Services
Program (TP30). The revised cost savings, taking these clients into account,
is $27,543,012 in fiscal year (FY) 2004; $31,972,163 in FY 2005; $35,464,465
in FY 2006; $39,575,989 in FY 2007; and $44,485,623 in FY 2008.
Comment: Several commenters disagreed with the assertion in the preamble
of the proposal that there are no fiscal implications for local governments
as a result of enforcing the section. With the resulting loss of federal Medicare
and Medicaid funds, the proposal will strain the resources of hospitals and
local governments, resulting in local tax increases for public hospitals.
Shifting the costs to local authorities is not a responsible and effective
way of solving state government Medicaid shortfalls.
Response: DHS agrees that the proposal may result in additional costs to
local governments, but is unable to quantify the amount because there are
so many variables involved, such as, for example, the number of persons who
may receive uncompensated care, the kind and level of care that persons would
be seeking, nongovernmental resources, and other resources available to local
governments in different parts of the state.
Additional comments were received that did not pertain to the rule proposal.
The new sections are adopted 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.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on August 11, 2003.
TRD-200305019
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Effective date: September 1, 2003
Proposal publication date: June 27, 2003
For further information, please call: (512) 438-3734
The Texas Department of Human Services (DHS) adopts amendments to §§3.301,
3.1104, 3.1105, 3.1801, and 3.7609. DHS adopts §3.301 and §3.1105
with changes to the proposed text published in the June 27, 2003, issue of
the
Texas Register
(28 TexReg 4839). DHS adopts §§3.1104,
3.1801, and 3.7609 without changes to the proposed text.
Justification for the amendments is to implement the changes in law made
by sections 2.86- 2.88 of House Bill (HB) 2292, 78th Texas Legislature, which
amended the Human Resources Code, §§31.0031-31.0034. Justification
for the amendment to §3.301(d) is to implement the provisions of the
Human Resources Code, §31.0031, as amended by HB 2292, section 2.86,
which defines a payee and requires a TANF payee to sign a responsibility agreement
that defines the responsibilities of the state and the payee. The amendment
also implements the provisions of the Human Resources Code, §31.0031(c),
as amended by HB 2292, section 2.87, which require DHS to adopt rules governing
sanctions and penalties against a person and the family of a person who fails
to cooperate with the responsibility agreement. In addition, DHS is amending
the language of §3.301(d)(2)(C)(i) as proposed, in response to a request
for clarification from the Texas Workforce Commission, to clarify when a recipient
is considered to be out of compliance with work requirements. As amended, §3.301(d)
implements the provisions of the Human Resources Code, §§31.0032-31.0034,
as amended by HB 2292, section 2.88, which require DHS to apply an immediate
sanction to terminate the total amount of financial assistance provided to
or for the person and person's family for failure to cooperate with a requirement
contained in the responsibility agreement. Justification for the amendments
to §§3.1104, 3.1105, 3.1801, and 3.7609 is to implement provisions
of the legislation in associated rules in DHS's rule base that refer to §3.301(d).
DHS received one written comment from the Texas Workforce Commission and
an additional oral comment from the Center for Public Policy Priorities at
a public hearing on July 11, 2003. A summary of the comments and DHS's responses
follow.
Comment: A commenter noted that the proposed language in §3.301(d)(4)(A)
conflicts with language in HB 2292 that requires TANF families to be sanctioned
or penalized, rather than lose eligibility, after one month of noncooperation
with each requirement of the responsibility agreement.
Response: DHS agrees and has clarified the rule.
Comment: A commenter suggested that clarification is needed in §3.1105(b)
regarding requirements for TANF families who are denied due to noncooperation.
The commenter suggests that the family may reapply for financial assistance
but must cooperate with each requirement of the responsibility agreement for
a one-month period before receiving an assistance payment for that month.
Response: DHS agrees and has clarified the rule.
Comment: A commenter suggested DHS clarify definitions regarding a "household
denied for continuous failure to cooperate" and a "household denied for noncooperation."
The commenter suggests DHS use consistent terms.
Response: Since there is no intended difference between the two phrases,
consistent terminology should be used. DHS has modified the rules.
Comment: A commenter indicated that the terms "compliance" and "cooperation"
are used interchangeably throughout the proposed rules. The commenter suggests
using "cooperation" and "noncooperation" to align with HB 2292.
Response: DHS agrees and has modified the rules.
Comment: A commenter proposed that DHS make a reasonable attempt to contact
the TANF recipient before imposition of a full family sanction to ensure the
recipient has received notification and that there is no obvious good cause.
Response: DHS agrees that clients should be adequately informed and potential
good cause explored before imposition of the full family sanction but does
not believe a specific rule is required. To the extent possible, this suggestion
will be included in DHS policies and procedures.
Subchapter C. THE APPLICATION PROCESS
40 TAC §3.301
The amendment is adopted under the Human Resources Code, Chapter
31, which authorizes DHS to administer financial assistance programs.
The amendment implements the Human Resources Code, §§31.001-31.081.
§3.301.Responsibilities of Clients and the Texas Department of Human Services (DHS).
(a)
To apply, the client must complete the application process.
Clients must:
(1)
fill out and sign an application. Clients must answer the
questions on the application before DHS can certify them.
(2)
give the application to DHS. Except for households with
all SSI recipients, clients must file their applications at the office DHS
designates. Applications may be filed in person, by mail, or through an authorized
representative. Clients may file an application anytime during office hours
and on the same day they get the form.
(3)
participate in an interview. DHS does not require clients
to be interviewed before they file their application.
(4)
sign a responsibility agreement as specified in subsection
(d) of this section.
(5)
provide proof of any eligibility factor specified in Chapter
3 of this title (relating to Texas Works). Clients have the primary responsibility
for providing proof needed by DHS to determine their eligibility and benefits.
DHS allows clients 10 calendar days to provide requested proof.
(6)
comply with the requirements of the finger imaging process
unless exempt as specified in §3.7002 of this title (relating to Individuals
Exempt from Finger Imaging Requirements).
(7)
comply with the requirement to attend a workforce orientation
unless the individual meets the exception criteria as specified in §3.7302
of this title (relating to Exceptions to the Workforce Orientation Requirements--Temporary
Assistance for Needy Families (TANF)).
(b)
DHS mails or gives applications for Temporary Assistance
for Needy Families (TANF) and food stamps to clients on the same day they
are requested. DHS must take the application when the client gives it if it
contains the information specified in §3.303 of this title (relating
to Receipt of Application-Acceptability Factors).
(c)
If required proof is incomplete, DHS offers, or attempts
to offer, reasonable help.
(d)
Additional state and client responsibilities are explained
by eligibility staff to households as a condition of TANF eligibility in Texas
as specified in paragraphs (1)-(5) of this subsection.
(1)
Requirements.
(A)
State requirements. The state will:
(i)
provide recipients with help in finding employment and
necessary support services within available resources;
(ii)
provide support services to strengthen the family such
as life skills and parenting skills training;
(iii)
ensure that programs administered are efficient, fraud-free
and easily accessible;
(iv)
gather accurate client information;
(v)
promote the development of community resources;
(vi)
promote clear and tangible goals for recipients;
(vii)
enable parents to provide for their children's basic
necessities in a time-limited benefits program;
(viii)
promote education, job training and workforce development;
and
(ix)
give communities the opportunity to develop alternative
programs that meet the unique needs of local recipients.
(B)
Client requirements. DHS requires each adult TANF recipient,
each minor parent applying as a caretaker or second parent, and each payee,
as a condition of eligibility, to sign a responsibility agreement as specified
in Human Resources Code, §31.0031. DHS requires household members to
comply with any applicable requirements contained in the agreement and listed
in Human Resources Code, §31.0031(d), after the agreement has been signed
or the household is subject to a penalty as described in paragraph (4) of
this subsection. For the parenting skills training specified in Human Resources
Code, §31.0031(d)(8), DHS requires participation by certified caretakers
and second parents of a certified child under age five and teen parents. Others
may voluntarily participate.
(2)
Establishing cooperation. Cooperation with a responsibility
agreement that contains any one or more of the requirements listed in Human
Resources Code, §31.0031(d), is established in the following manner:
(A)
Recipients and payees must provide proof of cooperation
with provisions in Human Resources Code, §31.0031(d)(2), (6), and (7),
at each periodic review. DHS accepts the following as proof of cooperation:
(i)
Human Resources Code, §31.0031(d)(2). For Texas Health
Steps medical screens, DHS uses information from National Heritage Insurance
Company's (NHIC's) paid claims system, or secondary verification provided
by staff of the Texas Department of Health (TDH). For the immunization requirement,
DHS accepts immunization records completed by a doctor or other medical professional
licensed to perform immunization services indicating that a child's immunizations
are current or, if not current, that the medical provider has established
an alternate schedule for the child. DHS also accepts verification of school
attendance at a public school in Texas or proof that a child is current for
Texas Health Steps as proof for purposes of meeting the immunization requirement.
(ii)
Human Resources Code, §31.0031(d)(6) and (7). DHS
accepts written or verbal proof from the school that each household member,
unless exempted under Human Resource Code, §31.0031(d)(6), is attending
school regularly (as determined by the school).
(B)
Human Resources Code, §31.0031(d)(8). DHS accepts
written or verbal proof of training completion from the person or organization
that provided training.
(C)
Recipients are considered to be in cooperation related
to the sections of the Human Resource Code described in clauses (i)-(ii) of
this subparagraph, unless noncooperation is determined.
(i)
DHS considers a recipient to be cooperating with Human
Resources Code, §31.0031(d)(4), unless DHS is notified by the Texas Workforce
Commission that the recipient is not cooperating or DHS determines that the
recipient has failed to cooperate with another requirement that is considered
a work requirement of the Choices employment plan; or
(ii)
Human Resources Code, §31.0031(d)(3), unless DHS
verifies the recipient voluntarily quit a job.
(D)
Recipients and payees are considered to be in cooperation
related to the sections of the Human Resource Code described in clauses (i)-(ii)
of this subparagraph, unless noncooperation is determined.
(i)
Human Resources Code, §31.0031(d)(5), unless DHS determines
the recipient or payee, as applicable, has, since signing the responsibility
agreement, committed and either been convicted of or received a deferred adjudication
for:
(I)
using, selling, or possessing marijuana or any other controlled
substance in violation of Health and Safety Code, Chapter 481; or
(II)
the abuse of alcohol; or
(ii)
Human Resources Code, §31.0031(d)(1), unless noncooperation
is determined pursuant to §3.1801 of this title (relating to Temporary
Assistance for Needy Families (TANF) Child Support Requirements).
(3)
Failure to sign the responsibility agreement. If a member
of the household who is required to sign the responsibility agreement fails
or refuses to sign, the application or case for the entire TANF household
is denied.
(4)
Penalties for noncooperation with requirements of a responsibility
agreement. Failure to cooperate results in the penalties specified in subparagraphs
(A)-(D) of this paragraph.
(A)
A recipient or payee who fails to cooperate is penalized
from receiving TANF cash assistance for the recipient or payee and their family
for one month or until the person demonstrates cooperation with the requirement
of the responsibility agreement for which the penalty was imposed, whichever
is longer.
(B)
A recipient or payee who fails to cooperate for two consecutive
months becomes ineligible for TANF cash assistance for the recipient or payee
and family.
(C)
A family denied for noncooperation may reapply for TANF
cash assistance but must cooperate with any applicable requirements of a responsibility
agreement for one month before receiving cash assistance. This month of cooperation
does not count toward the 45-day time frame DHS allows for processing applications.
(D)
Penalty periods. DHS starts penalty periods beginning with
the earliest month benefits can be adjusted. DHS considers noncooperation
with these requirements to have ended as specified in:
(i)
Human Resources Code, §31.0031(d)(1). DHS is notified
by the Title IV-D agency of the parent's compliance with child support requirements.
(ii)
Human Resources Code, §31.0031(d)(2). Medical screening
for the child is completed, treatments are completed, or the recipient or
payee, as applicable, has shown good faith effort because treatments are initiated
by the medical provider. Immunizations are current or the recipient has shown
good faith effort because an immunization schedule is established by the medical
provider.
(iii)
Human Resources Code, §31.0031(d)(6) and (7). The
recipient or payee, as applicable, has shown a good faith effort because he
or she provides verification from the school that the required student has
attended school without an unexcused absence (as determined by the school)
for one calendar month.
(iv)
Human Resources Code, §31.0031(d)(8). For recipients
participating in the Choices program, the case manager monitors and ensures
the client participates and completes the parenting skills program. The case
manager determines cooperation. The DHS eligibility worker monitors participation
and completion of parenting skills for non-Choices clients.
(5)
Good cause. Good cause for noncooperation as specified
in Human Resources Code, §31.0033, is established for the requirements
listed in Human Resources Code, §31.0031(d), as explained in the following
subparagraphs.
(A)
Human Resources Code, §31.0031(d)(1). Good cause is
established as specified in §3.1801 of this title (relating to Temporary
Assistance for Needy Families (TANF) Child Support Requirements).
(B)
Human Resources Code, §31.0031(d)(2). Good cause regarding
immunizations is established if the child is exempt under the provisions in
Health and Safety Code, §161.004(d).
(C)
Human Resources Code, §31.0031(d)(3). Good cause is
established according to the regulations applicable to the Food Stamp Program
as specified in 7 CFR §273.7(n)(3), regarding voluntary quit.
(D)
Human Resources Code, §31.0031(d)(4). Good cause is
established as specified in 45 CFR §250.35 and Human Resources Code, §31.0031(f),
regarding employment education and training activities.
(E)
Human Resources Code, §31.0031(d)(5). Good cause cannot
be established for this requirement.
(F)
Human Resources Code, §31.0031(d)(6) and (7). Good
cause is established as specified in Human Resources Code, §31.0031(f),
regarding lack of funding for support services. Regarding child care or day
care, good cause is established if child care for a child under the age of
12 years (or day care for any incapacitated individual) living in the same
home as the recipient is necessary for an individual to attend school, and
such care is not available and outside funding is not available to provide
such care. If there is another responsible household member in the home who
is willing and able to provide such care, good cause does not apply. Good
cause is also established if a student is expelled from school and the school
system verifies it does not offer an alternative educational program.
(G)
Human Resources Code, §31.0031(d)(8). Good cause is
established if:
(i)
no classes are available in the area or verification from
known providers is received indicating that all classes were full when offered;
(ii)
the provider verifies the client is currently attending
classes;
(iii)
the client provides a physician's statement or medical
evidence that verifies that illness or injury prevented training completion
when classes were available; or
(iv)
the client provides verification that other circumstances
beyond his control prevented training completion, such as a household disaster.
(H)
Good cause noncompliance hearings. As required by the Human
Resources Code, §31.0033, if the recipient claims good cause during the
13-day period after notice of adverse action concerning the noncompliance
penalty is sent, DHS either makes a determination on the claim before the
13-day period expires or files the claim as a fair hearing pursuant to DHS's
rules. The recipient retains the right to request a fair hearing within 90
days of agency action pursuant to Chapter 79 of this title (relating to Legal
Services).
(I)
Good cause related to parenting skills noncompliance. A
client may request a determination that his noncompliance was due to good
cause after a penalty is imposed. The client receives a determination regarding
good cause for parenting skills noncompliance by the eligibility worker or
case manager.
This agency hereby certifies that the adoption
has been reviewed by legal counsel and found to be a valid exercise of the
agency's legal authority.
Filed with the Office of
the Secretary of State on August 12, 2003.
TRD-200305050
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Effective date: September 1, 2003
Proposal publication date: June 27, 2003
For further information, please call: (512) 438-3734
40 TAC §3.1104, §3.1105
The amendments are adopted under the Human Resources Code,
Chapter 31, which authorizes DHS to administer financial assistance programs.
The amendments implement the Human Resources Code, §§31.001-31.081.
§3.1105.Reestablishing Eligibility.
(a)
A household denied for noncooperation and who remains subject
to the Temporary Assistance for Needy Families (TANF) work participation requirement
can reestablish eligibility as explained in §3.301(d) of this title (relating
to Responsibilities of Clients and the Texas Department of Human Services
(DHS)).
(b)
A household denied for noncooperation and who does not
remain subject to the TANF work participation requirement may reestablish
eligibility by making application, signing the responsibility agreement, meeting
other eligibility requirements, and demonstrating cooperation with all applicable
personal responsibility requirements for one month.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on August 12, 2003.
TRD-200305049
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Effective date: September 1, 2003
Proposal publication date: June 27, 2003
For further information, please call: (512) 438-3734
40 TAC §3.1801
The amendment is adopted under the Human Resources Code, Chapter
31, which authorizes DHS to administer financial assistance programs.
The amendment implements the Human Resources Code, §§31.001-31.081.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on August 12, 2003.
TRD-200305048
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Effective date: September 1, 2003
Proposal publication date: June 27, 2003
For further information, please call: (512) 438-3734
40 TAC §3.7609
The amendment is adopted under the Human Resources Code, Chapter
31, which authorizes DHS to administer financial assistance programs.
The amendment implements the Human Resources Code, §§31.001-31.081.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on August 12, 2003.
TRD-200305047
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Effective date: September 1, 2003
Proposal publication date: June 27, 2003
For further information, please call: (512) 438-3734
Subchapter V. MEDICAID ELIGIBILITY
40 TAC §§3.2201 - 3.2207
The Texas Department of Human Services (DHS) adopts the repeal
of §§3.2201- 3.2207 without changes to the proposed text published
in the June 27, 2003, issue of the
Texas Register
(28 TexReg 4844).
DHS undertook the repeals in order to remove the rules in Chapter 3 regarding
Medicaid eligibility for households that are eligible for Temporary Assistance
for Needy Families so that they could be rewritten in plain language format
and placed into their own chapter.
DHS received no comments regarding adoption of the repeals.
The repeals are adopted 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, §§22.001-22.038
and §§32.001- 32.053.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on August 11, 2003.
TRD-200305041
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Effective date: September 1, 2003
Proposal publication date: June 27, 2003
For further information, please call: (512) 438-3734
The Texas Department of Human Services (DHS) adopts the repeal of §§4.1002,
4.1004, 4.1006, 4.1008, 4.1010, 4.1012, 4.1014, and 4.1016; and adopts new §4.1-4.11
without changes to the proposed text published in the June 27, 2003, issue
of the
Texas Register
(28 TexReg 4844).
DHS undertook the repeals and new sections as part of its initiative to
reorganize its rules and write them in plain language format and in response
to legislation passed by the 78th Texas Legislature. Rules concerning Medicaid
programs for children and pregnant women were repealed from Chapter 4 so that
they could be relocated to DHS's new Chapter 2 with the rules for the Medically
Needy Program, since the two programs have similar criteria. Rules concerning
Medicaid eligibility for households that are eligible for Temporary Assistance
for Needy Families (TANF) were repealed from Chapter 3, Subchapter V, so they
could be placed into their own chapter. DHS placed the TANF-level Medicaid
rules in a separate chapter because federal welfare reform legislation delinked
Medicaid eligibility from cash assistance eligibility. The new eligibility
automation system (Texas Integrated Eligibility Re-design System, or TIERS)
processes eligibility separately for TANF and Medicaid, as required by federal
law. The new chapter reflects the eligibility requirements for a TANF-level
family applying for Medicaid.
The new sections were written in plain language format to make them easier
for the public to understand. New §4.2 was necessary to distinguish the
resource limits applicable to Medicaid eligibility from those applicable to
TANF, since the latter were changed during recent legislative amendments to
the Human Resources Code, §31.032(d)(1). New §4.8 and §4.9
were included to clarify the current requirement that medical support and
compliance with the medical support requirement are applicable to recipients
of TANF-level medical assistance. New §4.10 and §4.11, concerning
compliance with work requirements and denying medical assistance to a person
who is eligible for TANF but for whom TANF is denied because of the person's
failure to comply with the work requirement, were necessary in order to stay
within the levels of funding allocated to DHS in the 2004-2005 General Appropriations
Act.
DHS received one written comment from the Center for Public Policy Priorities
(CPPP) and similar oral comments from representatives of CPPP at the Medical
Care Advisory Committee meeting on July 9, 2003, and a public hearing on July
11, 2003. A summary of the comments and DHS's responses follow.
Comment: DHS should not adopt the rule to deny medical assistance as part
of the new full-family sanction policy, because although the legislation allows
the agency to do so, DHS is not required to do so.
Response: In consideration of the amount funded by appropriations to DHS
in the 2004- 2005 General Appropriations Act, DHS has determined that the
rule (§4.11) is necessary to stay within its appropriated limits.
Comment: DHS should clarify that the Medicaid sanction applies only to
non-pregnant, adult caretakers over the age of 18.
Response: DHS notes that the Children and Pregnant Women Program is available
to TANF non-compliers who qualify.
Comment: DHS should clarify that the sanction provision will be applied
strictly to the work and child support requirements of the PRA.
Response: DHS believes that the rules as written limit the denial of Medicaid
for TANF non- compliance to adults who fail to cooperate with child support
and work requirements. The Office of the Attorney General defines what constitutes
cooperation with child support, and the Texas Workforce Commission defines
what constitutes work requirements.
Comment: DHS should develop clear and understandable notices for clients
about this change and share information with community-based organizations
who work with low-income families.
Response: DHS worked diligently to produce easy-to-understand client notices
regarding this change. DHS has regular interaction with client advocacy organizations
and will continue this communication on these important issues.
Comment: The cost savings estimated for the Medicaid penalty for non-cooperating
TANF adults and the position stated by others that this sanction will produce
a high level of cooperation need to be reconciled.
Response: DHS believes that the Medicaid sanction for non-cooperating TANF
adults will eventually result in a higher level of cooperation with the TANF
work requirement. However, in the early stages of implementation of this change
in program policy, there will continue to be noncooperation that will produce
cost savings. Further, once the level of cooperation has been increased, additional
savings will occur due to more TANF adults leaving the TANF Program for employment
as a result of the services the clients receive in the Choices Program.
Subchapter A. PROGRAM REQUIREMENTS
40 TAC §§4.1 - 4.11
The new sections are adopted 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, §§22.001-22.038
and §§32.001-32.053.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on August 11, 2003.
TRD-200305042
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Effective date: September 1, 2003
Proposal publication date: June 27, 2003
For further information, please call: (512) 438-3734
Subchapter A. ELIGIBILITY REQUIREMENTS
40 TAC §§4.1002, 4.1004, 4.1006, 4.1008, 4.1010, 40.1012, 4.1014, 4.1016
The repeals are adopted 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, §§22.001-22.038
and §§32.001- 32.053.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on August 11, 2003.
TRD-200305043
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Effective date: September 1, 2003
Proposal publication date: June 27, 2003
For further information, please call: (512) 438-3734
The Texas Department of Human Services (DHS) adopts the repeal of §47.2909;
adopts amendments to §§47.1901, 47.1903, 47.2901-47.2904, 47.2911-47.2914,
47.3906, 47.4902, and 47.5902; and adopts new §47.2909 and §47.3908
in its Primary Home Care chapter. The amendments to §§47.1901, 47.2904,
and 47.5902, and new §47.2909 are adopted with changes to the proposed
text published in the June 27, 2003, issue of the
Texas Register
(28 TexReg 4870). The repeal of §47.2909, amendments
to §§47.1903, 47.2901-47.2903, 47.2911-47.2914, 47.3906, and 47.4902;
and new §47.3908 are adopted without changes to the proposed text.
DHS removed the provider agency nurse from Primary Home Care (PHC) Program
requirements to require only a non-nurse supervisor because the Centers for
Medicare and Medicaid Services no longer requires nurse involvement in the
state's personal care option and because the PHC Program is a non-medical
program. The adopted rules reflect efforts to incorporate these intentions
as part of a larger effort to streamline the PHC Program and to allow DHS
to continue the program within reduced funding levels. Provider agency licensing
requirements were changed to support the streamlining efforts. New §47.3908
was needed to make the retroactive payment procedures clearer to ensure more
accurate claims of this type. Finally, DHS changed references to "1929(b)
(Frail Elderly) services" to "community attendant services" to comply with
new language for the program as provided in the Human Resources Code, §32.061.
DHS initiated a minor editorial change to the text of §47.1901(23)
to clarify and improve the accuracy of the section.
DHS received written comments from ADAPT and an individual, and oral comments
from the Texas Association for Home Care and Advocacy, Incorporated, during
the Medical Care Advisory Committee meeting on July 9, 2003; at the DHS public
hearing on July 11, 2003; and at the Aged and Disabled Advisory Committee
on August 1, 2003. A summary of the comments and DHS's responses follow.
Comment: Several commenters expressed concerns about provider agencies'
liability in service provision and that they may not be able to meet all of
a client's needs.
Response: DHS is adding a statement to the assessment and the orientation/supervisory
visit forms that the client and the provider agency sign, which indicates
they are aware the program only provides certain services and the provider
agency is not responsible for services outside of the program.
Comment: A comment was expressed about provider agency implementation of
the reduction in hours for PHC clients.
Response: The comment does not directly address a proposed rule so there
is no change to a rule. However, DHS will provide guidance on this issue.
Comment: Regarding §47.1901, Definitions, a comment was made about
the different service names under the Primary Home Care Program being confusing.
Specific reference was made to the new name of the services provided under
Title XIX of the federal Social Security Act, 1929(b), called "Community Attendant
Services." Another commenter proposed changing the name of the Primary Home
Care Program.
Response: DHS did not revise this rule. The service names cannot be changed
at this time. A change to the program and service names would require a change
to automation programs and systems. DHS cannot currently make any automation
changes due to the pending implementation of a new automation system.
Comment: Regarding §47.1901, Definitions, comments were received about
the definition of "Practitioner" in these proposed rules, which limits orders
or statements to a Texas physician. Licensure rules allow acceptance of orders
or statements from physicians who are licensed in states that are contiguous
to Texas.
Response: DHS revised the definition of "Practitioner" in §47.1901(20)
to allow a statement from physicians currently licensed in contiguous states.
Comment: Regarding §47.1903, Staffing Requirements, and §47.2911,
Orientation of Attendants, a commenter requested that language about attendant
qualifications, orientation, and supervision of those attendants be removed
and deferred to personal assistance service (PAS) licensure requirements.
Response: DHS did not revise these rules. PHC Program requirements are
patterned after PAS licensure standards wherever possible. However, some additional
contract requirements are necessary for program quality.
Comment: Regarding §47.2909, Medical Need Determination, and §47.2904,
Critical Omissions/Errors for Primary Home Care or Community Attendant Services,
there were comments about the provider agencies no longer having nurses on
staff, but still being responsible for documenting medical diagnosis(es).
Response: DHS is developing a new form the provider agencies will use to
obtain a statement from the practitioner documenting the client's medical
need for personal care services. The provider agency will only be obtaining
the form. DHS revised §47.2904 and §47.2909 to indicate that provider
agencies are not responsible for ensuring a client's functional impairment
related to a medical diagnosis.
Comment: Regarding §47.5902, a commenter noted that subsection (d)
was inadvertently deleted. This section needs to be added back into the rules
Response: DHS revised §47.5902 as requested.
Subchapter A. GENERAL PROVISIONS AND SERVICES
40 TAC §47.1901, §47.1903
The amendments are adopted 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 amendments affect the Human Resources Code, §§22.0001-22.038
and §§32.001-32.053.
§47.1901.Definitions.
The following words and terms have the following meanings when used
in this chapter, unless the context clearly indicates otherwise:
(1)
Abuse--Willful infliction of injury, unreasonable confinement,
intimidation, or cruel punishment with resulting physical harm, pain, or mental
anguish; or willful deprivation by a caretaker or oneself of goods or services
that are necessary to avoid physical harm, mental anguish, or mental illness.
(2)
Adult--A person 18 or older, or an emancipated minor.
(3)
Aged or elderly person--A person 65 or older.
(4)
Assignee--A legal entity that assumes the responsibilities
and duties of a current primary home care contract through a legal assignment
of contract from another legal entity.
(5)
Assignor--A legal entity that assigns its primary home
care contract to another legal entity through an assignment of contract.
(6)
Attendant--A provider agency employee who provides the
authorized tasks to the client.
(7)
Client--A person who is determined by the department to
be eligible for services.
(8)
Community attendant (CA) services--A service under the
Primary Home Care program providing in-home attendant services to eligible
clients. Clients receiving CA services must have a medical need for specific
tasks. CA services are provided under Title XIX of the federal Social Security
Act (relating to Grants to States for Medical Assistance Programs), at 42
U.S.C. §1396t (relating to Home and community care for functionally disabled
elderly individuals).
(9)
Controlling interest--an owner who is a sole proprietor,
a partner owning 5.0% or more of the partnership, or a corporate stockholder
owning 5.0% or more of the outstanding stock of the contracted provider, or
a member of the board of directors.
(10)
Days--Any reference to days means calendar days, unless
otherwise specified in the text. Calendar days include weekends and holidays.
(11)
Department--The Texas Department of Human Services.
(12)
Emancipated minor--A person under 18 years of age who
has the power and capacity of an adult. This includes a minor who has had
the disabilities of minority removed by a court of law or a minor who, with
or without parental consent, has been married.
(13)
Exploitation--The illegal or improper act or process of
a caretaker or others using an adult's resources for monetary or personal
benefit, profit, or gain.
(14)
Family care (FC) services--A service under the Primary
Home Care Program providing in- home attendant services to eligible adults.
FC services are provided under Title XX of the federal Social Security Act
(relating to Block Grants to States for Social Services), at 42 U.S.C. §1397
et seq.
(15)
Income eligible--An adult who is neither a Supplemental
Security Income (SSI) or Temporary Assistance for Needy Families (TANF) client,
but who has income that is equal to or less than the eligibility level established
by the department.
(16)
Institution--A nursing home, personal care home, intermediate
care facility for the mentally retarded (ICF-MR), or state hospital.
(17)
Medicaid eligible--An individual who is eligible for Medicaid
as an SSI or TANF client, or who is eligible for medical assistance only while
living in the community.
(18)
Neglect--Failure to provide for oneself the goods or services
that are necessary to avoid physical harm, mental anguish, or mental illness;
or the failure of a caretaker to provide these goods or services.
(19)
Person with a disability--A person who, because of physical,
mental, or developmental impairment, is limited in his capacity to adequately
perform one or more essential activities of daily living. Activities of daily
living include but are not limited to:
(A)
personal and health care;
(B)
mobility;
(C)
communication; and
(D)
money management.
(20)
Practitioner--A physician currently licensed in Texas,
Louisiana, Arkansas, Oklahoma, or New Mexico; a physician assistant currently
licensed in Texas; or a registered nurse approved by the Texas State Board
of Nurse Examiners to practice as an advanced practice nurse.
(21)
Practitioner's statement--A document signed by a practitioner
that includes a client's diagnosis, current medications, and a statement that
the client has a current medical need for assistance with personal care tasks
and other activities of daily living.
(22)
Primary Home Care Program--A Texas Department of Human
Services attendant care services program. Community attendant (CA), primary
home care (PHC), and family care (FC) are the three types of services available
under the Primary Home Care Program.
(23)
Primary home care (PHC) services--A service under the
Primary Home Care Program providing in-home attendant services to eligible
clients. Clients receiving PHC services must have a medical need for specific
tasks. PHC services are provided under Title XIX of the federal Social Security
Act, at 42 U.S.C. §1396a et seq. (relating to State plans for medical
assistance).
(24)
Prior approval--A decision made by the department regional
nurse/caseworker, before services begin and before payment can be made, that
the applicant or client meets the department criteria for the requested service.
(25)
Provider agency--A home and community support services
agency that has a contract with the department to provide services under the
Primary Home Care Program.
(26)
Provisional contract--A time-limited contract.
(27)
Special attendant--A provider agency employee who can
substitute for another attendant.
(28)
Supervisor--A provider agency employee who:
(A)
coordinates the delivery of services in the client’s
service plan;
(B)
supervises attendants; and
(C)
complies with §97.404 of this title (relating to Standards
Specific to Agencies Licensed to Provide Personal Assistance Services).
(29)
Unit of service--One hour of authorized service delivered
to a prior-approved client.
This agency hereby certifies that the adoption has been
reviewed by legal counsel and found to be a valid exercise of the agency's
legal authority.
Filed with the Office of
the Secretary of State on August 11, 2003.
TRD-200305006
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Effective date: September 1, 2003
Proposal publication date: June 27, 2003
For further information, please call: (512) 438-3734
40 TAC §§47.2901 - 47.2904, 47.2909, 47.2911 - 47.2914
The amendments and new section are adopted 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 amendments and new section affect the Human Resources Code, §§22.0001-
22.038 and §§32.001-32.053.
§47.2904.Critical Omissions/Errors for Primary Home Care or Community Attendant Services.
(a)
If the client assessment/service plan form or the practitioner's
statement is missing, or if any of the following critical omissions or errors
has occurred in the required documentation, the provider agency cannot obtain
prior approval.
(1)
The supervisor fails to sign or date the client assessment/service
plan.
(2)
The practitioner's statement does not include the credential
of the practitioner who signed the order.
(3)
Service plan tasks are not identified on the service plan
form.
(4)
The total number of service hours per week is not specified
on the service plan form.
(5)
The practitioner's statement does not include the license
number of the practitioner who signed it.
(6)
The practitioner who signed the order is excluded from
participation in Medicare or Medicaid.
(7)
The practitioner's signature is not on the practitioner's
statement.
(8)
The practitioner's signature date is missing or illegible
and the provider agency's stamped date is missing from the practitioner's
statement.
(9)
The provider agency's stamped date used instead of the
practitioner's date on the practitioner's statement does not include the provider
agency's name, abbreviated name, or initials.
(b)
Corrections of critical omissions or errors in provider
agency documentation must be postmarked or date stamped as received by the
department within 14 days after the regional nurse mails notification of the
omission or error to the provider agency. If the provider agency fails to
meet this time frame, the date of prior approval can be no earlier than the
postmark or department-stamped date on the corrected documentation, or the
department may refer the client to another provider agency of the client's
choice.
§47.2909.Medical Need Determination.
(a)
Applicability. This section does not apply to family care.
(b)
Obtaining medical need. The provider agency must obtain
the statement of medical need from the practitioner and submit the statement
to the regional nurse within the time frame described in §47.2902 of
this chapter (relating to Assessment, Service Plan, and Requesting Prior Approval)
for:
(1)
applicants who are referred to the provider agency (unless
the applicant requests and is to receive family care only);
(2)
clients who are receiving family care only and who are
referred to the provider agency for primary home care or community attendant
services; and
(3)
clients who are referred to the provider agency to have
medical need re-assessed, as requested by the case manager, such as when the
initial medical need was established for a limited time.
(c)
Negotiated referrals. In the case of negotiated referrals,
the provider agency:
(1)
must initially determine medical need by obtaining an oral
statement of medical need from the practitioner before initiating services
as described in §47.2905 of this chapter (relating to Initiation of Service);
and
(2)
must then complete and submit a practitioner's statement
as described in §47.2903 of this chapter (relating to Provider Agency
Requirements after Verbal Referral for Primary Home Care or Community Attendant
Services).
(d)
Mental illness and mental retardation. Persons diagnosed
with mental illness or mental retardation or both are not considered to have
established medical need based solely on such diagnoses, but may establish
medical need through a related diagnosis.
(e)
Documentation of medical need determination. The provider
agency must maintain the practitioner's statement in the client file.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on August 11, 2003.
TRD-200305007
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Effective date: September 1, 2003
Proposal publication date: June 27, 2003
For further information, please call: (512) 438-3734
40 TAC §47.2909
The repeal is adopted 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 repeal affects the Human Resources Code, §§22.0001-22.038
and §§32.001- 32.053.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on August 11, 2003.
TRD-200305008
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Effective date: September 1, 2003
Proposal publication date: June 27, 2003
For further information, please call: (512) 438-3734
40 TAC §47.3906, §47.3908
The amendment and new section are adopted 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 amendment and new section implement the Human Resources Code, §§22.0001-
22.038 and §§32.001-32.053.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on August 11, 2003.
TRD-200305009
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Effective date: September 1, 2003
Proposal publication date: June 27, 2003
For further information, please call: (512) 438-3734
40 TAC §47.4902
The amendment is adopted 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 amendment affects the Human Resources Code, §§22.0001-22.038
and §§32.001-32.053.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on August 11, 2003.
TRD-200305010
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Effective date: September 1, 2003
Proposal publication date: June 27, 2003
For further information, please call: (512) 438-3734
40 TAC §47.5902
The amendment is adopted 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 amendment affects the Human Resources Code, §§22.0001-22.038
and §§32.001-32.053.
§47.5902.Reimbursement Methodology for Primary Home Care.
(a)
General requirements. The Texas Department of Human Services
(DHS) or its designee applies the general principles of cost determination
as specified in §20.101 of this title (relating to Introduction).
(b)
Cost reporting. Providers must follow the cost-reporting
guidelines as specified in §20.105 of this title (relating to General
Reporting and Documentation Requirements, Methods and Procedures).
(1)
All contracted providers must submit a cost report unless
the number of days between the date the first DHS client received services
and the provider's fiscal year end is 30 days or fewer. The provider may be
excused from submitting a cost report if circumstances beyond the control
of the provider make cost report completion impossible, such as the loss of
records due to natural disasters or removal of records from the provider's
custody by any governmental entity. Requests to be excused from submitting
a cost report must be received at the address specified in the letter mailed
with the cost report before the due date of the cost report.
(2)
Providers are responsible for reporting only allowable
costs on the cost report, except where cost report instructions indicate that
other costs are to be reported in specific lines or sections. Only allowable
cost information is used to determine recommended reimbursement. DHS or its
designee excludes from reimbursement determination unallowable expenses included
in the cost report and makes the appropriate adjustments to expenses and other
information reported by providers. The purpose is to ensure that the database
reflects costs and other information which are necessary for the provision
of services and are consistent with federal and state regulations.
(A)
Individual cost reports may not be included in the database
used for reimbursement determination if:
(i)
there is reasonable doubt as to the accuracy or allowability
of a significant part of the information reported; or
(ii)
an auditor determines that reported costs are not verifiable.
(B)
When material pertinent to proposed reimbursements is made
available to the public, the material will include the number of cost reports
eliminated from reimbursement determination for the reason stated in subparagraph
(A)(i) of this paragraph.
(c)
Reimbursement determination. Reimbursement is determined
in the following manner.
(1)
Cost determination by cost area. Allowable costs are combined
into three cost areas, after allocating payroll taxes to each salary line
item on the cost report on a pro rata basis based on the portion of that salary
line item to the amount of total salary expense and after applying employee
benefits directly to the corresponding salary line item.
(A)
Service support cost area. This includes field supervisors'
salaries and wages, benefits, and mileage reimbursement expenses. This also
includes building, building equipment, and operation and maintenance costs;
administration costs; and other service costs. Administration expenses equal
to $0.18 per Priority 1 unit of service are allocated to Priority 1. The administration
costs remaining after this allocation are summed with the other service support
costs.
(B)
Nonpriority attendants cost area. This includes nonpriority
attendants' salaries and wages, benefits, and mileage reimbursement expenses.
This cost area is calculated as specified in §20.112 of this title (relating
to Attendant Compensation Rate Enhancement).
(C)
Priority 1 attendants cost area. This includes Priority
1 attendants' salaries and wages, benefits, mileage reimbursement, expenses.
This cost area is calculated as specified in §20.112 of this title (relating
to Attendant Compensation Rate Enhancement).
(2)
Recommended reimbursement by cost area. For the service
support cost area described in paragraph (1)(A) of this subsection the following
is calculated:
(A)
Projected costs. Each provider's total allowable costs,
excluding depreciation and mortgage interest, per unit of service are projected
from each provider agency's reporting period to the next ensuing reimbursement
period, as described in §20.108 of this title (relating to Determination
of Inflation Indicies) to calculate the projected expenses. Reimbursement
may be adjusted where new legislation, regulations, or economic factors affect
costs as specified in §20.109 of this title (relating to Adjusting Reimbursement
When New Legislation, Regulations, or Economic Factors Affect Costs).
(B)
Projected cost per unit of service. To determine the projected
cost per unit of service for each provider agency, the total projected allowable
costs for the service support cost area are divided by total units of service,
including nonpriority services, Priority 1 services, and STAR+PLUS services,
in order to calculate the projected cost per unit of service.
(C)
Projected cost arrays. All provider agencies' projected
allowable costs per unit of service are rank ordered from low to high, along
with each provider agency's corresponding total units of service.
(D)
Recommended reimbursement for the service support cost
area. The total units of service for each provider agency are summed until
the median hour of service is reached. The corresponding projected expense
is the weighted median cost component. The weighted median cost component
is multiplied by 1.044 to calculate the recommended reimbursement for the
service support cost area. The service support cost area recommended reimbursement
is limited, if necessary, to available appropriations.
(3)
Total recommended reimbursement.
(A)
For nonpriority clients. The recommended reimbursement
is determined by summing the recommended reimbursement described in paragraph
(2) of this subsection and the cost area component from paragraph (1)(B) of
this subsection.
(B)
For Priority 1 clients. The recommended reimbursement is
determined by summing the recommended reimbursement described in paragraph
(2) of this subsection and the cost area component from paragraph (1)(C) of
this subsection.
(d)
Reimbursement determination authority. The reimbursement
determination authority is specified in §20.101 of this title (relating
to Introduction).
(e)
Desk reviews and field audits of cost reports. Desk reviews
or field audits are performed on cost reports for all contracted providers.
The frequency and nature of the field audits are determined by DHS or its
designee to ensure the fiscal integrity of the program. Desk reviews and field
audits will be conducted in accordance with §20.106 of this title (relating
to Basic Objectives and Criteria for Audit and Desk Review of Cost Reports),
and providers will be notified of the results of a desk review or an audit
in accordance with §20.107 of this title (relating to Notification of
Exclusions and Adjustments). Providers may request an informal review and,
if necessary, an administrative hearing to dispute an action taken under §20.110
of this title (relating to Informal Reviews and Formal Appeals).
(f)
Factors affecting allowable costs. Providers must follow
the guidelines in determining whether a cost is allowable or unallowable as
specified in §20.102 this title (relating to General Principles of Allowable
and Unallowable Costs) and §20.103 of this title (relating to Specifications
for Allowable and Unallowable Costs).
(g)
Reporting revenues. Revenues must be reported on the cost
report in accordance with §20.104 of this title (relating to Revenues).
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on August 11, 2003.
TRD-200305011
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Effective date: September 1, 2003
Proposal publication date: June 27, 2003
For further information, please call: (512) 438-3734
Chapter 167.
BUSINESS ENTERPRISES OF TEXAS
Subchapter B. MEDICALLY NEEDY PROGRAM REQUIREMENTS
Subchapter C. CHILDREN AND PREGNANT WOMEN PROGRAM REQUIREMENTS
Chapter 2.
MEDICALLY NEEDY PROGRAM
Chapter 2.
MEDICALLY NEEDY AND CHILDREN AND PREGNANT WOMEN PROGRAMS
Subchapter C. CHILDREN AND PREGNANT WOMEN PROGRAM REQUIREMENTS
Chapter 3.
TEXAS WORKS
Subchapter K. EMPLOYMENT SERVICES
Subchapter R. CHILD SUPPORT
Subchapter WW. TEMPORARY ASSISTANCE FOR NEEDY FAMILIES--STATE PROGRAM
Chapter 3.
TEXAS WORKS
Chapter 4.
TEMPORARY ASSISTANCE FOR NEEDY FAMILIES (TANF)-LEVEL MEDICAL ASSISTANCE
Chapter 4.
MEDICAID PROGRAMS--CHILDREN AND PREGNANT WOMEN
Chapter 47.
PRIMARY HOME CARE
Subchapter B. SERVICE REQUIREMENTS
Subchapter C. CLAIMS PAYMENT
Subchapter D. PROVIDER CONTRACTS
Subchapter E. SUPPORT DOCUMENTS
Part 4.
TEXAS COMMISSION FOR THE BLIND