Part 1.
DEPARTMENT OF AGING AND DISABILITY SERVICES
Chapter 2.
MENTAL RETARDATION AUTHORITY RESPONSIBILITIES
Subchapter L. SERVICE COORDINATION FOR INDIVIDUALS WITH MENTAL RETARDATION
The Texas Health and Human Services Commission (HHSC) proposes, on
behalf of the Department of Aging and Disability Services (DADS), to amend §§2.553
- 2.556, 2.558, and 2.562, concerning service coordination for individuals
with mental retardation; and proposes to repeal §§2.563 - 2.565,
concerning Subchapter L superseding another subchapter, legal references and
documents, and a distribution list, in its Mental Retardation Authority Responsibilities
chapter.
The purpose of the amendments is, in part, to update agency names, correct
mailing and website addresses, and correct referenced citations that were
rendered incorrect upon transfer of the rules from Title 25, Part 2 to Title
40, Part 1 of the Texas Administrative Code. This transfer resulted from the
consolidation of several state agencies, including part of the Texas Department
of Mental Health and Mental Retardation (TDMHMR), to create DADS. The amendment
to the definition of "MRA (mental retardation authority)" in §2.553 reflects
the transfer of a power of the governing body of TDMHMR to HHSC in accordance
with §1.20(d) of House Bill 2292, 78th Legislature, Regular Session,
2003. The amendment to §2.554 corrects the name of the preadmission screening
and resident review (PASARR) assessment. The proposal also replaces the provision
in §2.556(c) to review an individual's plan of services and supports
on a quarterly basis with the provision to revise the individual's plan when
the individual's needs change or when the individual, legally authorized representative
or actively involved person, service provider, or other person provides relevant
information indicating revision of the plan is appropriate. The amendment
to §2.556 also requires the plan to be revised using a person-directed
planning process that is consistent with DADS'
Person
Directed Planning and Family Directed Planning Guidelines for Individuals
with Mental Retardation
. The repeal of §2.563 is proposed because
this section refers to 25 TAC Chapter 412, Subchapter J, a subchapter that
has been repealed. The repeal of §2.564 and §2.565 are proposed
to make this subchapter more consistent with the majority of DADS rules, which
do not include sections about references and distribution.
Gordon Taylor, DADS Chief Financial Officer, has determined that, for each
of the first five years the proposed amendments and repeal are in effect,
enforcing or administering the amendments and repeal does not have foreseeable
implications relating to costs or revenues of state or local governments.
Jacquelyn McDonald, DADS Assistant Commissioner for Aging and Disability
Access and Intake, has determined that, for each year of the first five years
the amendments and repeal are in effect the public benefit expected as a result
of enforcing the amendments and repeal is the promulgation of rules that clearly
describe the provision of service coordination to individuals in DADS' mental
retardation priority population who live in the community; and there is no
probable economic cost to persons who are required to comply with the amendments
and repeal.
DADS has determined that there is no adverse economic effect on small businesses
or micro-businesses as a result of enforcing or administering the amendments
and repeal, because the proposal does not affect small businesses or micro-businesses;
the amendments and repeal will not affect a local economy; and the proposal
does not restrict or limit an owner's right to his or her property that would
otherwise exist in the absence of government action and, therefore, does not
constitute a taking under §2007.043, Government Code.
Questions about the content of this proposal may be directed to Marcia
Shultz at (512) 438-3532 in DADS' Office of Mental Retardation Authorities.
Written comments on the proposal may be submitted to Texas Register Liaison,
Legal Services-006, Department of Aging and Disability Services W-615, P.O.
Box 149030, Austin, Texas 78714-9030, within 30 days of publication in the
40 TAC §§2.553 - 2.556, 2.558, 2.562
The amendments are proposed under the Texas Government Code §531.0055,
which provides that the executive commissioner of HHSC shall adopt rules for
the operation and provision of services by the health and human services agencies,
including the Department of Aging and Disability Services; Texas Human Resources
Code §161.021, which provides that the Aging and Disability Services
Council shall study and make recommendations to the HHSC executive commissioner
and the DADS commissioner regarding rules governing the delivery of services
to persons who are served or regulated by the department; and Texas Government
Code §531.021, which provides HHSC with the authority to administer federal
medical assistance funds and plan and direct the Medicaid program in each
agency that operates a portion of the Medicaid program.
The amendments affect the Texas Government Code, §531.0055 and §531.021,
and the Texas Human Resources Code, §161.021.
§2.553.Definitions.
The following words and terms, when used in this subchapter, have the
following meanings, unless the context clearly indicates otherwise:
(1) - (2)
(No change.)
(3)
Department--The [
(4) - (10)
(No change.)
(11)
Institution for mental diseases (IMD)--As defined in
25 TAC
§419.373 [
(12) - (15)
(No change.)
(16)
MRA (mental retardation authority)--
An entity to
which the Texas Health and Human Services Commission's authority and responsibility
described in THSC, §531.002(11) has been delegated.
[
(17)
Mental retardation priority population or MR priority
population--Those individuals who:
(A) - (D)
(No change.)
(E)
are children eligible for early childhood intervention
(ECI) services provided in accordance with [
(18) - (26)
(No change.)
(27)
State MH facility (state mental health facility)--A state
hospital or state center with an inpatient psychiatric component operated
by the
Department of State Health Services
[
(28) - (31)
(No change.)
§2.554.Eligibility.
(a) - (b)
(No change.)
(c)
Service coordination funded by Medicaid targeted case management:
(1)
may be provided only to an individual who is a Medicaid
recipient and:
(A)
(No change.)
(B)
who resides in a nursing facility licensed in accordance
with THSC, Chapter 242, and who has been determined through a preadmission
screening and [
(2)
(No change.)
§2.555.Assessing an Individual's Need for Service Coordination.
(a)
(No change.)
(b)
If the designated MRA determines an individual needs service
coordination, the MRA must develop a plan of services and supports as described
in
§2.556(a)
[
(c)
A copy of the Service Coordination Assessment--Mental Retardation
Services form may be obtained by contacting
Access and Intake, Office
of Mental Retardation Authorities,
[
§2.556.MRA's Responsibilities.
(a)
Developing a plan of services and supports.
(1)
(No change.)
(2)
The plan of services and supports must include a component
that addresses the individual's service coordination needs, which:
(A)
is based on the results from the assessment performed in
accordance with
§2.555(a)
[
(B) - (C)
(No change.)
(b)
(No change.)
(c)
Revising the plan of services and supports.
(1)
The MRA must ensure that the staff person providing service
coordination to the individual revises the individual's plan of services and
supports if:
(A)
the individual's needs change; or
(B)
the individual, LAR or actively involved person, service
provider, or other person provides relevant information indicating revision
of the plan is appropriate.
(2)
The MRA must ensure that the staff person revises the plan
using a person-directed planning process that is consistent with the department's
[(c)
Reviewing the plan of services and supports.
The MRA must ensure that the plan of services and supports of each individual
receiving service coordination is reviewed quarterly to determine the appropriateness
and effectiveness of the services and supports provided by all community providers
and to ensure that the needs of the individual are being addressed.]
(d)
(No change.)
(e)
Individuals enrolled in the TxHmL Program. In addition
to the requirements in this subchapter, the MRA must ensure service coordination
is provided to individuals enrolled in the TxHmL Program in accordance with
the requirements contained in Chapter
9
[
§2.558.Termination of Service Coordination.
The MRA must terminate service coordination for an individual if:
(1)
the individual no longer meets the eligibility criteria
for service coordination as set forth in
§2.554
[
(2)
(No change.)
§2.562.Review Process.
(a)
(No change.)
(b)
Non-Medicaid-eligible individuals. If an MRA decides to
deny, involuntarily reduce, or terminate service coordination for a non-Medicaid-eligible
individual, the MRA must notify the individual or LAR in writing of the decision
and provide an explanation of the procedure for the individual or LAR to request
a review by the MRA as required by
§2.46
[
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on April 4, 2005.
TRD-200501390
Phoebe Knauer
General Counsel
Department of Aging and Disability Services
Earliest possible date of adoption: May 15, 2005
For further information, please call: (512) 438-3734
40 TAC §§2.563 - 2.565
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Department of Aging and Disability Services or in the Texas Register
office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeal is proposed under the Texas Government
Code §531.0055, which provides that the executive commissioner of HHSC
shall adopt rules for the operation and provision of services by the health
and human services agencies, including the Department of Aging and Disability
Services; Texas Human Resources Code §161.021, which provides that the
Aging and Disability Services Council shall study and make recommendations
to the HHSC executive commissioner and the DADS commissioner regarding rules
governing the delivery of services to persons who are served or regulated
by the department; and Texas Government Code §531.021, which provides
HHSC with the authority to administer federal medical assistance funds and
plan and direct the Medicaid program in each agency that operates a portion
of the Medicaid program.
The repeal affects the Texas Government Code, §531.0055 and §531.021,
and the Texas Human Resources Code, §161.021.
§2.563.Subchapter Supersedes Chapter 412, Subchapter J.
§2.564.References.
§2.565.Distribution.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State on April 4, 2005.
TRD-200501391
Phoebe Knauer
General Counsel
Department of Aging and Disability Services
Earliest possible date of adoption: May 15, 2005
For further information, please call: (512) 438-3734
Subchapter B. INTEREST LISTS
40 TAC §48.1301
The Texas Health and Human Services Commission (HHSC) proposes,
on behalf of the Department of Aging and Disability Services (DADS), new §48.1301,
concerning interest lists, in new Subchapter B in its Community Care for Aged
and Disabled chapter.
The purpose of the new section is to assist an elderly person or a person
with a disability to access a DADS community care service as soon as possible
after the service becomes available. The proposed new section defines "a DADS
community care service" for the purposes of the subchapter as meaning a service
provided under the Community Based Alternatives (CBA) Program, the Community
Living Assistance and Support Services (CLASS) Program, or the Medically Dependent
Children Program (MDCP). The proposal establishes DADS' procedure for assisting
an elderly person or a person with a disability, or another person acting
on behalf of an elderly person or a person with a disability, who inquires
about a DADS community care service. DADS is proposing this new section to
comply with Human Resources Code, §22.040.
Gordon Taylor, DADS Chief Financial Officer, has determined that, for each
of the first five years the proposed new section is in effect, enforcing or
administering the new section does not have foreseeable implications relating
to costs or revenues of state or local governments.
Jacquelyn McDonald, DADS Assistant Commissioner for Aging and Disability
Access and Intake, has determined that, for each year of the first five years
the new section is in effect the public benefit expected as a result of enforcing
the new section is that elderly persons and persons with disabilities will
be able to access community care services as soon as possible after the service
becomes available; and there is no probable economic cost to persons who are
required to comply with the new section.
DADS has determined that there is no adverse economic effect on small businesses
or micro-businesses as a result of enforcing or administering the new section,
because the proposal does not affect small businesses or micro-businesses;
the new section will not affect a local economy; and this proposal will not
result in a burden on private real property and, therefore, does not constitute
a taking under Texas Government Code, Chapter 2007.
Questions about the content of this proposal may be directed to Debbie
Brookshire at (512) 438-4798 in DADS' Regional and Local Services section.
Written comments on the proposal may be submitted to Texas Register Liaison,
Legal Services-016, Department of Aging and Disability Services W-615, P.O.
Box 149030, Austin, Texas 78714-9030, within 30 days of publication in the
The new section is proposed under the Government Code, §531.0055,
which provides that the HHSC executive commissioner shall adopt rules for
the operation and provision of services by the health and human services agencies,
including the Department of Aging and Disability Services; the Human Resources
Code, §161.021, which provides that the Aging and Disability Services
Council shall study and make recommendations to the HHSC executive commissioner
and the DADS commissioner regarding rules governing the delivery of services
to persons who are served or regulated by the department; the Human Resources
Code, §22.040, which requires DADS to develop and implement a plan to
assist elderly persons or persons with disabilities who request community
care services to receive those service as quickly as possible when the services
become available; and the Government Code, §531.021, which provides HHSC
with the authority to administer federal medical assistance funds and to plan
and direct the Medicaid program in each agency that operates a portion of
the Medicaid program.
The new section affects the Government Code, §531.0055 and §531.021;
and the Human Resources Code, §22.040 and §161.021.
§48.1301.Interest Lists.
(a)
The purpose of this section is to assist an elderly person
or a person with a disability to access a Department of Aging and Disability
Services (DADS) community care service as soon as possible after the service
becomes available. For purposes of this subchapter, a "DADS community care
service" or "service" is a service provided under:
(1)
the Community Based Alternatives (CBA) Program;
(2)
the Community Living Assistance and Support Services (CLASS)
Program; or
(3)
the Medically Dependent Children Program (MDCP).
(b)
An elderly person or a person with a disability, or another
person acting on behalf of an elderly person or a person with a disability,
may contact a DADS office or a designated telephone number to inquire about
a DADS community care service. DADS assists the person in deciding which service
may be appropriate for the elderly person or person with a disability.
(1)
If the elderly person or the person with a disability wants
to apply for a service that is available at the time of the inquiry, DADS
assists the person in making an application, if necessary. DADS processes
the application in accordance with the rules governing that service.
(2)
If the elderly person or the person with a disability wants
to apply for a service that is not available at the time of the inquiry, DADS
places the person's name on an interest list for the service. A person's name
is placed on the interest list in chronological order by the date DADS received
the person's name, address, and contact information.
(c)
During each fiscal-year quarter, DADS forecasts whether
a service will become available during the next quarter. If DADS forecasts
that the service will be available, DADS also estimates the number of persons
that DADS will be able to enroll into the service during the next quarter.
(d)
DADS contacts a person who, based on the position of the
person's name on the interest list, might be enrolled into the service during
the next quarter.
(1)
If the person wants to apply for the service, DADS begins
the service eligibility determination process in accordance with the rules
governing that service at least 30 days before the service is forecast to
be available.
(2)
If the person is no longer interested in applying for the
service or is determined ineligible for the service, DADS removes the name
of the person from the interest list.
(e)
DADS continues to contact persons on the interest list
until the number of persons estimated under subsection (c) of this section
has been enrolled into the service.
(f)
DADS does not provide a DADS community care service to
a person until the service is actually available.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on April 4, 2005.
TRD-200501392
Phoebe Knauer
General Counsel
Department of Aging and Disability Services
Earliest possible date of adoption: May 15, 2005
For further information, please call: (512) 438-3734
The Texas Health and Human Services Commission (HHSC) proposes, on
behalf of the Department of Aging and Disability Services (DADS), the repeals
of §§51.1 - 51.5, 51.7, 51.31, and 51.39, concerning program requirements
for the Medically Dependent Children Program (MDCP); and proposes new Subchapter
A, §51.101 and §51.103, concerning purpose and definitions; Subchapter
B, §§51.201, 51.203, 51.205, 51.207, 51.211, 51.213, 51.215, 51.217,
51.219, 51.221, 51.231, 51.233, 51.235, 51.237, 51.239, 51.241, 51.243, and
51.251, concerning eligibility, enrollment, services, and appeals; Subchapter
C, §§51.301, 51.303, 51.305, 51.307, 51.309, 51.321, 51.323, 51.325,
51.327, 51.329, and 51.331, concerning the individual's responsibilities for
procuring adaptive aids and minor home modifications; Subchapter D, §§51.401,
51.403, 51.405, 51.407, 51.411, 51.413, 51.415, 51.417, 51.419, 51.421, 51.431,
51.433, 51.441, 51.451, 51.461, 51.463, 51.465, 51.471, 51.473, 51.475, 51.477,
and 51.479, concerning provider contracting and service delivery requirements;
and Subchapter E, §§51.501, 51.503, 51.505, 51.507, 51.509, 51.511,
51.513, and 51.515, concerning provider billings and record-keeping requirements,
in its Medically Dependent Children Program chapter.
The purpose of the repeals and new sections is to reorganize the rules
in Chapter 51 and to rewrite them in plain English that will be easier for
the public, including individuals and providers, to locate and understand.
The new rules govern the eligibility, enrollment process, individual responsibilities,
and provider requirements under MDCP. The new sections also (1) update agency
references from the Texas Department of Human Services to DADS or to HHSC,
as appropriate; (2) offer additional definitions; (3) incorporate existing
provider policy into rule language; (4) provide more flexibility in the use
of required forms; and (5) add transition assistance services and the consumer
directed services option to the array of MDCP services.
Gordon Taylor, Chief Financial Officer, has determined that, for each of
the first five years the proposed repeals and new sections are in effect,
enforcing or administering the repeals and new sections does not have foreseeable
implications relating to costs or revenues of state or local governments.
Barry Waller, Assistant Commissioner for Provider Services, has determined
that, for each year of the first five years the repeals and new sections are
in effect: (1) the public benefit expected as a result of enforcing the repeals
and new sections is the promulgation of rules that will clearly describe the
responsibilities of the individual and the provider in the MDCP program; and
(2) there is no probable economic cost to persons who are required to comply
with the repeals and new sections.
DADS has determined that: (1) there is no adverse economic effect on small
businesses or micro-businesses as a result of enforcing or administering the
repeals and new sections, because the new rules clarify and streamline the
program processes without adding requirements that will have an adverse economic
effect on the providers; (2) the repeals and new sections will not affect
a local economy; and (3) the proposal does not restrict or limit an owner's
right to his or her property that would otherwise exist in the absence of
government action and, therefore, does not constitute a taking under Government
Code, §2007.043.
Questions about the content of this proposal may be directed to Lori Roberts
at (512) 438-5391 in DADS Community Services Policy Development and Support
Unit. Written comments on the proposal may be submitted to Texas Register
Liaison, Legal Services-198, Department of Aging and Disability Services W-615,
P.O. Box 149030, Austin, Texas 78714-9030, within 30 days of publication in
the
Texas Register
.
40 TAC §§51.1 - 51.5, 51.7, 51.31, 51.39
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Department of Aging and Disability Services or in the Texas Register
office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeals are proposed under Government Code §531.0055,
which provides that the HHSC executive commissioner shall adopt rules for
the operation and provision of services by the health and human services agencies,
including the Department of Aging and Disability Services; Human Resources
Code §161.021, which provides that the Aging and Disability Services
Council shall study and make recommendations to the HHSC executive commissioner
and the DADS commissioner regarding rules governing the delivery of services
to persons who are served or regulated by the department; and Government Code §531.021,
which provides HHSC with the authority to administer federal medical assistance
funds and to plan and direct the Medicaid program in each agency that operates
a portion of the Medicaid program.
The repeals affect the Government Code, §531.0055 and §531.021,
and the Human Resources Code §161.021.
§51.1.Purpose.
§51.2.Definitions.
§51.3.Participant Eligibility Criteria.
§51.4.Location of Medically Dependent Children Program (MDCP) Waiver Service Delivery.
§51.5.Waiver Services.
§51.7.Cost Controls and Cost Savings.
§51.31.Deinstitutionalization Due to Closure of Facility.
§51.39.Changes in Medically Dependent Children Program Services.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State on April 4, 2005.
TRD-200501393
Phoebe Knauer
General Counsel
Department of Aging and Disability Services
Earliest possible date of adoption: May 15, 2005
For further information, please call: (512) 438-3734
Subchapter A. INTRODUCTION
40 TAC §51.101, §51.103
The new sections are proposed under Government Code §531.0055,
which provides that the HHSC executive commissioner shall adopt rules for
the operation and provision of services by the health and human services agencies,
including the Department of Aging and Disability Services; Human Resources
Code §161.021, which provides that the Aging and Disability Services
Council shall study and make recommendations to the HHSC executive commissioner
and the DADS commissioner regarding rules governing the delivery of services
to persons who are served or regulated by the department; and Government Code §531.021,
which provides HHSC with the authority to administer federal medical assistance
funds and to plan and direct the Medicaid program in each agency that operates
a portion of the Medicaid program.
The new sections affect the Government Code, §531.0055 and §531.021,
and the Human Resources Code §161.021.
§51.101.Purpose.
This chapter establishes:
(1)
the eligibility requirements for an individual to participate
in MDCP; and
(2)
the requirements for a provider of MDCP services.
§51.103.Definitions.
The following words and terms, when used in this chapter, have the
following meanings, unless the context clearly indicates otherwise.
(1)
§1915(c) waiver program--A home or community-based
service authorized by §1915(c) of the Social Security Act and approved
by the Centers for Medicare and Medicaid Services.
(2)
Activities of daily living--Activities that are essential
to daily self care, including bathing, dressing, grooming, routine hair and
skin care, meal preparation, feeding, exercising, toileting, transfer and
ambulation, positioning, range of motion, and assistance with self-administered
medications.
(3)
Adaptive aid--A device that is needed to treat, rehabilitate,
prevent, or compensate for a condition that results in a disability or a loss
of function and helps an individual perform the activities of daily living
or control the environment in which he lives.
(4)
Adjunct support services--Direct care services needed because
of an individual's disability that:
(A)
help an individual participate in:
(i)
child care;
(ii)
post-secondary education; or
(iii)
independent living; or
(B)
support an individual's move to an independent living situation.
(5)
Appeal--A request for a hearing to challenge a service
suspension, service reduction, service denial, or case closure.
(6)
Attendant--An employee of a provider or of an individual
who has selected the consumer directed services option who provides direct
care to the individual.
(7)
Basic child care--Watchful attention and supervision of
an individual while the individual's primary caregiver is at work, in job
training, or at school.
(8)
BNE--Board of Nurse Examiners for the State of Texas.
(9)
Case closure--A DADS action that terminates an individual
from MDCP services.
(10)
Case manager--A DADS employee who is responsible for case
management activities for an individual, including eligibility determination,
enrollment, assessment and reassessment of the individual's need, service
plan development, and intercession on the individual's behalf.
(11)
Consumer directed services--A means of service delivery
in which an individual or the individual's parent or guardian is the employer
of the attendant.
(12)
Contract--A written agreement between DADS and a provider
to provide MDCP services to an individual in exchange for payment.
(13)
Cost ceiling--The maximum dollar amount available to an
individual for MDCP services per IPC year, which is based on 63% of the nursing
facility rate associated with the individual's TILE score.
(14)
DADS--Department of Aging and Disability Services.
(15)
DADS RN--A DADS employee who is an RN and has two years
of experience in pediatric nursing.
(16)
Day--Any reference to a day means a calendar day, unless
otherwise specified in the text. A calendar day includes weekends and holidays.
(17)
Delegated task--A task that a practitioner or RN delegates
in accordance with state law.
(18)
DFPS--Department of Family and Protective Services.
(19)
Facility-based respite--Respite services provided to an
individual in a licensed hospital or nursing facility.
(20)
Family member--A person who is related by blood, by affinity,
or by law to an individual.
(21)
Foster home--Means a foster home as defined in the Human
Resources Code, §42.002.
(22)
Guardian--A person appointed as a guardian of the estate
or of the person by a court.
(23)
HHSC--Texas Health and Human Services Commission.
(24)
Host family--A provider with whom an individual lives
when the individual's parents are unable to care for him.
(25)
Imminent danger--An immediate, real threat to a person's
safety.
(26)
Individual--A person who has been determined eligible
to receive MDCP services.
(27)
Interest list--A list of people who have contacted DADS
and expressed an interest in MDCP services but have not applied for nor been
determined eligible for MDCP services.
(28)
IPC--Individual plan of care. A plan that documents the
following:
(A)
services provided to an individual through both MDCP and
third-party resources, and the sources or providers of those services;
(B)
medical information about the individual obtained by a
DADS RN;
(C)
a social assessment of the individual and the individual's
family obtained by the case manager;
(D)
the projected cost of the MDCP services;
(E)
the service initiation date; and
(F)
the respite or adjunct support services provider's service
schedule.
(29)
IPC year--A period not to exceed 365 days that is recorded
on the IPC with a beginning and end date.
(30)
LVN--Licensed vocational nurse. A person licensed by the
BNE or who holds a license from another state recognized by the BNE to practice
vocational nursing in Texas.
(31)
MDCP--Medically Dependent Children Program. A §1915(c)
waiver program that provides community-based services to help the primary
caregiver care for an individual in the community.
(32)
Medical necessity--The medical criteria a person must
meet for admission to a Texas nursing facility.
(33)
Minor home modification--A physical change to an individual's
residence that is needed to prevent institutionalization or to support the
most integrated setting for an individual to remain in the community.
(34)
Parent--An individual's natural or adoptive parent or
the spouse of the natural or adoptive parent.
(35)
Practitioner--A physician currently licensed in Texas,
Louisiana, Arkansas, Oklahoma, or New Mexico; a physician assistant currently
licensed in Texas; or an RN approved by the BNE to practice as an advanced
practice nurse.
(36)
Primary caregiver--A person who:
(A)
is legally responsible for an individual's routine daily
care, provision of food, shelter, clothing, health care, education, nurturing,
and supervision; and
(B)
provides daily, uncompensated care for the individual.
(37)
Provider--An entity that has a contract with DADS to provide
MDCP services.
(38)
Reckless behavior--Acting with conscious indifference
to the consequences.
(39)
Residence--The place where an individual lives.
(40)
Respite services--Direct care services needed because
of an individual's disability that provide a primary caregiver temporary relief
from caregiving activities when the primary caregiver would usually perform
such activities.
(41)
RN--Registered nurse. A person licensed by the BNE or
who holds a license from another state recognized by the BNE to practice professional
nursing in Texas.
(42)
Service authorization form--Document that shows DADS'
approval for a provider to deliver MDCP services.
(43)
Service initiation date--The first day an individual begins
receiving MDCP services.
(44)
Service reduction--A temporary or permanent decrease in
the number of service hours delivered to an individual.
(45)
Service schedule--A schedule for delivering respite or
adjunct support services to an individual that is agreed upon and signed by
the individual or the individual's parent or guardian. A fixed service schedule
specifies certain days, times of day, or time periods for delivery of the
services. A variable service schedule specifies the number of authorized hours
of services to be delivered per day, per week, or per month, but does not
specify certain days, times of day, or time periods for delivery of the services.
(46)
Service suspension--A temporary stoppage of MDCP services
without loss of program or Medicaid eligibility.
(47)
Texas Accessibility Standards--Texas Department of Licensing
and Regulation building standards adopted to meet the provisions of Texas
Government Code, Chapter 469, and to meet or exceed the construction and alterations
requirements of Title III of the Americans with Disabilities Act (42 U.S.C. §§12181
- 12189).
(48)
Third-party resources--Goods and services available to
an individual from a source other than MDCP, such as Medicaid home health,
Texas Health Steps Comprehensive Care Program, and private insurance.
(49)
TILE--Texas Index for Level of Effort. The system used
to identify the intensity of the care needs of a person in a Texas nursing
facility and in MDCP.
(50)
Transition assistance services--One-time service provided
to a Medicaid-eligible resident of a nursing facility located in Texas to
assist the resident in moving from the nursing facility into the community
to receive MDCP services.
(51)
Working day--Any day except Saturday, Sunday, a state
holiday, or a federal holiday.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State on April 4, 2005.
TRD-200501394
Phoebe Knauer
General Counsel
Department of Aging and Disability Services
Earliest possible date of adoption: May 15, 2005
For further information, please call: (512) 438-3734
1.
ELIGIBILITY
40 TAC §§51.201, 51.203, 51.205, 51.207
The new sections are proposed under Government Code §531.0055,
which provides that the HHSC executive commissioner shall adopt rules for
the operation and provision of services by the health and human services agencies,
including the Department of Aging and Disability Services; Human Resources
Code §161.021, which provides that the Aging and Disability Services
Council shall study and make recommendations to the HHSC executive commissioner
and the DADS commissioner regarding rules governing the delivery of services
to persons who are served or regulated by the department; and Government Code §531.021,
which provides HHSC with the authority to administer federal medical assistance
funds and to plan and direct the Medicaid program in each agency that operates
a portion of the Medicaid program.
The new sections affect the Government Code, §531.0055 and §531.021,
and the Human Resources Code §161.021.
§51.201.Interest List.
Anyone may contact DADS to inquire about MDCP services. To place a
person on the interest list, DADS must have the person's name, address, and
contact information. DADS then assigns the person a place on the interest
list chronologically by date of receipt of this information.
§51.203.Eligibility Requirements.
To be eligible to participate in MDCP, a person must:
(1)
live in Texas;
(2)
be:
(A)
a citizen of the United States (U.S.);
(B)
an alien who entered the U.S. before August 22, 1996, who
has lived in the U.S. continuously since entry, and who meets the definition
of a qualified alien at 8 U.S.C. §1641(b) or (c); or
(C)
an alien who entered the U.S. on or after August 22, 1996,
who has lived in the U.S. continuously since entry, and who meets the definition
of a qualified alien at 8 U.S.C. §1612(b) and §1613;
(3)
be under 21 years of age;
(4)
meet the financial Medicaid eligibility criteria described
in 1 TAC Chapter 358 (relating to Medicaid Eligibility), based on the income
and resources of the individual;
(5)
for initial enrollment only, meet at least one of the disability
criteria described in §51.205(b) of this chapter (relating to Disability
Criteria);
(6)
meet medical necessity as described in §51.207 of
this chapter (relating to Medical Necessity);
(7)
have an IPC that a practitioner has signed; and
(8)
if the person is under 18 years of age, reside:
(A)
with a family member; or
(B)
with a foster family that includes no more than four children
unrelated to the individual.
§51.205.Disability Criteria.
(a)
To be eligible for MDCP, a person must meet the criteria
in subsection (b) of this section only upon initial enrollment into MDCP.
(b)
A person meets the disability criteria if the person:
(1)
receives disability benefits from:
(A)
Supplemental Security Income;
(B)
federal old-age, survivors, and disability insurance; or
(C)
railroad retirement; or
(2)
has a disability determination by HHSC.
§51.207.Medical Necessity.
(a)
An entity contracted by HHSC determines medical necessity.
(b)
A determination that an individual meets medical necessity
is valid for one year. An individual must receive a determination of medical
necessity annually to remain eligible for MDCP.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State on April 4, 2005.
TRD-200501395
Phoebe Knauer
General Counsel
Department of Aging and Disability Services
Earliest possible date of adoption: May 15, 2005
For further information, please call: (512) 438-3734
40 TAC §§51.211, 51.213, 51.215, 51.217, 51.219, 51.221
The new sections are proposed under Government Code §531.0055,
which provides that the HHSC executive commissioner shall adopt rules for
the operation and provision of services by the health and human services agencies,
including the Department of Aging and Disability Services; Human Resources
Code §161.021, which provides that the Aging and Disability Services
Council shall study and make recommendations to the HHSC executive commissioner
and the DADS commissioner regarding rules governing the delivery of services
to persons who are served or regulated by the department; and Government Code §531.021,
which provides HHSC with the authority to administer federal medical assistance
funds and to plan and direct the Medicaid program in each agency that operates
a portion of the Medicaid program.
The new sections affect the Government Code, §531.0055 and §531.021,
and the Human Resources Code §161.021.
§51.211.Enrollment.
(a)
Except as provided in subsections (b) and (c) of this section,
enrollment in MDCP is limited to the number of individuals and the amount
of state funding approved by the Texas Legislature.
(b)
Enrollment in MDCP under the criteria described in §51.213
of this chapter (relating to Enrollment of Former Nursing Facility Residents)
is limited to the number of individuals DADS determines can be enrolled in
MDCP under that criteria.
(c)
Enrollment in MDCP under the criteria provided in subsection
(d)(3) of this section is unlimited.
(d)
DADS mails enrollment materials:
(1)
to the person whose name is first on the interest list
described in §51.201 of this chapter (relating to Interest List) when
a place in the program becomes available;
(2)
to a person who meets the criteria in §51.213 of this
chapter when DADS has a vacancy for a person who formerly lived in a nursing
facility; or
(3)
to a person who:
(A)
is under age 21;
(B)
resides in a nursing facility located in Texas;
(C)
is enrolled in Medicaid; and
(D)
requests MDCP services while residing in a nursing facility
located in Texas.
(e)
Within 30 days of the date of the letter from DADS that
accompanies the enrollment materials, a person or the person's parent or guardian
must complete and return the required enrollment materials to DADS.
(f)
DADS suspends enrollment into MDCP when DADS determines
that the number of individuals and projected costs exceed funded limits in
the current state fiscal year.
(g)
An individual may be enrolled in only one §1915(c)
waiver program at a time.
(h)
An individual may receive services through the Medicaid-funded
Primary Home Care and Comprehensive Care programs while receiving MDCP services.
§51.213.Enrollment of Former Nursing Facility Residents.
(a)
A person may be enrolled in MDCP if:
(1)
the person was admitted to a nursing facility located in
Texas after September 1, 1995, for long-term care purposes;
(2)
the person no longer lives in a nursing facility located
in Texas; and
(3)
DADS has a vacancy for a person who formerly lived in a
nursing facility.
(b)
A person who meets the criteria in subsection (a) of this
section must also meet the criteria in §51.203 of this chapter (relating
to Eligibility Requirements) to be determined eligible for MDCP services.
§51.215.Home Visit.
After DADS mails the enrollment materials as described in §51.211
of this chapter (relating to Enrollment), the case manager and a DADS RN conduct
a home visit to:
(1)
complete the medical assessment;
(2)
complete the social assessment;
(3)
develop the IPC as described in §51.217 of this chapter
(relating to Individual Plan of Care); and
(4)
assist the family in completing the application for Medicaid,
if necessary.
§51.217.Individual Plan of Care.
(a)
The IPC is developed by:
(1)
the individual;
(2)
the individual's parent or guardian;
(3)
the case manager;
(4)
a DADS RN; and
(5)
any other person who participates in the individual's care,
such as the provider, a representative of the school system, or other third-party
resource.
(b)
The service initiation date on the IPC is negotiated by:
(1)
the individual;
(2)
the individual's parent or guardian;
(3)
the Medicaid eligibility worker (if applicable);
(4)
the provider; and
(5)
the case manager.
(c)
The individual or the individual's parent or guardian,
the individual's practitioner, and the case manager must sign the completed
IPC form.
§51.219.Maintaining Enrollment.
(a)
To maintain enrollment in MDCP, the individual or the individual's
parent or guardian must:
(1)
participate in the development and implementation of the
IPC;
(2)
ensure that there is not a 60-day break in service delivery,
unless the 60-day break in service is due to extenuating circumstances and
the case manager has approved the 60-day break in service;
(3)
use MDCP services as described in the IPC;
(4)
select the provider;
(5)
provide training, monitor, and supervise the provider;
and
(6)
keep in the residence the most recent seven days of service
delivery documentation as referenced in §51.503 of this chapter (relating
to In-Home Record) and make it available to DADS upon request.
(b)
An individual may lose eligibility for MDCP if the individual
or the individual's parent or guardian fails to comply with the requirements
in subsection (a) of this section.
§51.221.Other Responsibilities.
(a)
The individual's parent or guardian must be responsible
for basic child care.
(b)
The individual or the individual's parent or guardian must
sign and return the completed IPC to the case manager within 10 days of receipt.
(c)
The individual or the individual's parent or guardian must
report the following events to the case manager within two working days of
the event:
(1)
a change in the individual's income, including gain or
loss of financial assistance (including Supplemental Security Income);
(2)
settlement of a lawsuit;
(3)
receipt of services from a third-party resource;
(4)
a change in the individual's living arrangement;
(5)
a change (improvement or worsening) in the individual's
medical condition that is expected to be long term;
(6)
a problem with an MDCP service or a provider; or
(7)
the stoppage of services by a provider.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State on April 4, 2005.
TRD-200501396
Phoebe Knauer
General Counsel
Department of Aging and Disability Services
Earliest possible date of adoption: May 15, 2005
For further information, please call: (512) 438-3734
40 TAC §§51.231, 51.233, 51.235, 51.237, 51.239, 51.241, 51.243
The new sections are proposed under Government Code §531.0055,
which provides that the HHSC executive commissioner shall adopt rules for
the operation and provision of services by the health and human services agencies,
including the Department of Aging and Disability Services; Human Resources
Code §161.021, which provides that the Aging and Disability Services
Council shall study and make recommendations to the HHSC executive commissioner
and the DADS commissioner regarding rules governing the delivery of services
to persons who are served or regulated by the department; and Government Code §531.021,
which provides HHSC with the authority to administer federal medical assistance
funds and to plan and direct the Medicaid program in each agency that operates
a portion of the Medicaid program.
The new sections affect the Government Code, §531.0055 and §531.021,
and the Human Resources Code §161.021.
§51.231.Service Limitations.
(a)
General. The individual or the individual's parent or guardian
may not ask the provider to provide MDCP services to any other household member
while serving the individual in the individual's residence.
(b)
Respite and adjunct support services.
(1)
Respite services may not be provided in a setting in which
identical services are already being provided.
(2)
Facility-based respite is limited to 29 days per IPC year.
If an individual or the individual's parent or guardian requests an extension
of the 29-day limit, the case manager must inform DADS' Access and Intake
Division of the number of days requested beyond the 29-day limit and the reason
for the request. DADS' Access and Intake Division approves or denies the request.
(3)
Adjunct support services may be used only when the primary
caregiver is working, attending job training, or attending school.
(c)
Adaptive aids.
(1)
The cost ceiling for adaptive aids is $4,000 per IPC year.
(2)
Adaptive aids costing less than $100 are not reimbursable.
(d)
Minor home modifications. The cost ceilings for minor home
modifications are:
(1)
$7,500 in an individual's lifetime; and
(2)
$300 for repairs and maintenance per IPC year.
(e)
Transition assistance services.
(1)
An individual may access transition assistance services
only once in the individual's lifetime.
(2)
The cost ceiling for transition assistance services is
$2,500.
§51.233.Choosing a Provider.
(a)
The individual or the individual's parent or guardian must
choose the provider. The case manager gives a list of providers to the individual
or the individual's parent or guardian.
(b)
If the individual or the individual's parent or guardian
chooses an entity that is not on the case manager's list of providers for
a particular service, that service may not begin until the entity contracts
with DADS to provide that service.
§51.235.Consumer Directed Services Option.
An individual may choose to participate in a payment option that allows
the individual or the individual's parent or guardian to direct the recruiting,
hiring, management, and firing of the individual's attendant as described
in Chapter 41 of this title (relating to Vendor Fiscal Intermediary Payments).
The consumer directed services option is available only for respite or adjunct
support services provided by an attendant.
§51.237.Service Schedule Changes.
(a)
An individual or the individual's parent or guardian may
make minor changes in the service schedule for respite and adjunct support
services without prior approval if the changes:
(1)
do not exceed the individual's cost ceiling; and
(2)
do not increase the individual's total monthly hours, unless
the individual approves the use of hours not used in a previous month and
the use of hours not used in a previous month increases the total monthly
hours by less than 50%.
(b)
DADS must give prior approval for the use of hours not
used in a previous month if the use of those hours increases the total monthly
hours by 50% or more.
§51.239.Exceeding the Cost Ceiling.
(a)
DADS may not disallow or jeopardize MDCP services for an
individual if:
(1)
those services are required for the individual to live
in the most integrated setting appropriate to the individual's needs;
(2)
the cost for the needed services for each six-month period
of the IPC year, averaged and excluding the cost of minor home modifications
and adaptive aids, does not exceed 133.3% of the cost ceiling; and
(3)
DADS continues to comply with the cost-effectiveness requirements
from the Centers for Medicare and Medicaid Services (CMS).
(b)
If an individual has a change in needs that would cause
the cost for needed services, under the IPC, to exceed 100% of the cost ceiling,
the case manager may consider the individual's request if there is a change
in:
(1)
the individual's medical condition, functional needs, or
environment;
(2)
the caregiver support or third-party resources that have
been providing service to the individual; or
(3)
the need for a service or support to adequately support
the individual living in the most integrated setting appropriate to the individual's
needs.
(c)
If an individual's needs cannot be met within the cost
ceiling described in subsection (a)(2) of this section, then the individual
is no longer eligible for MDCP services, unless the individual meets the criteria
in subsection (d) of this section.
(d)
If an individual is receiving MDCP services on September
1, 2003, under the authority of Rider 7 of the Appropriations Act, 77th Texas
Legislature, DADS will continue services if they are necessary for the individual
to live in the most integrated setting appropriate to the individual's needs
and DADS continues to comply with CMS cost-effectiveness requirements.
(e)
The DADS commissioner will consider a written request for
an exemption to this section if an individual's needs cannot be met within
the estimated cost ceiling and services cannot be provided through any other
setting or program.
§51.241.Service Suspensions.
(a)
DADS or a provider must suspend an individual's MDCP services
if or when:
(1)
the individual is admitted for purposes other than respite
services to:
(A)
a hospital (if an RN or an LVN provides the services);
(B)
a nursing facility (if an RN or an LVN provides the services);
(C)
a state mental retardation facility;
(D)
a state mental health facility;
(E)
a rehabilitation hospital; or
(F)
an intermediate care facility for persons with mental retardation
or related conditions; or
(2)
the individual or someone in the individual's residence
exhibits reckless behavior that may result in imminent danger to the health
and safety of the individual, the provider, or another person in the residence.
(b)
DADS or a provider may suspend an individual's MDCP services
if the individual or someone in the individual's residence discriminates against
a provider or a DADS employee.
(c)
The provider resumes services after a suspension:
(1)
on a date specified in writing by the case manager;
(2)
upon the individual's return home from an institution listed
in subsection (a)(1) of this section; or
(3)
on the date the provider becomes aware of the individual's
return home.
(d)
DADS notifies the individual in writing of the process
to appeal a service suspension as described in §51.251 of this chapter
(relating to Appeals).
§51.243.Service Reductions, Service Denials, and Case Closures.
(a)
Service reductions. DADS will reduce services to an individual
when:
(1)
third-party resources become available to the individual;
(2)
the individual's annual cost ceiling decreases; or
(3)
budgetary constraints require cost reductions.
(b)
Service denials. DADS may deny services to an individual
when:
(1)
the individual no longer meets the eligibility requirements
described in §51.203 of this chapter (relating to Eligibility Requirements);
(2)
the individual does not use MDCP services for 60 or more
consecutive days without prior approval from the case manager;
(3)
the individual's primary caregiver does not participate
in the development of the IPC; or
(4)
budgetary constraints require cost reductions.
(c)
Case closure. DADS closes an individual's case if:
(1)
the individual no longer meets the eligibility requirements
described in §51.203 of this chapter;
(2)
the individual dies;
(3)
the individual enters an institution for long-term care
purposes;
(4)
the individual starts receiving services through another §1915(c)
waiver program;
(5)
the individual does not use MDCP services for 60 or more
consecutive days without prior approval from the case manager;
(6)
the individual's primary caregiver does not participate
in the development of the individual's IPC; or
(7)
the individual requests that services end.
(d)
Notifications.
(1)
The effective date of the service reduction, service denial,
or case closure is 30 days after the date on the individual's notification
letter.
(2)
DADS notifies the individual in writing of the process
to appeal the service reduction, service denial, or case closure as described
in §51.251 of this chapter (relating to Appeals).
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State on April 4, 2005.
TRD-200501397
Phoebe Knauer
General Counsel
Department of Aging and Disability Services
Earliest possible date of adoption: May 15, 2005
For further information, please call: (512) 438-3734
40 TAC §51.251
The new section is proposed under Government Code §531.0055,
which provides that the HHSC executive commissioner shall adopt rules for
the operation and provision of services by the health and human services agencies,
including the Department of Aging and Disability Services; Human Resources
Code §161.021, which provides that the Aging and Disability Services
Council shall study and make recommendations to the HHSC executive commissioner
and the DADS commissioner regarding rules governing the delivery of services
to persons who are served or regulated by the department; and Government Code §531.021,
which provides HHSC with the authority to administer federal medical assistance
funds and to plan and direct the Medicaid program in each agency that operates
a portion of the Medicaid program.
The new section affects the Government Code, §531.0055 and §531.021,
and the Human Resources Code §161.021.
§51.251.Appeals.
(a)
Appeals and hearings are conducted as described in 1 TAC
Chapter 357 (relating to Medical Fair Hearings).
(b)
An individual may appeal a DADS action. In this section,
a DADS action means a service suspension as described in §51.241 of this
chapter (relating to Service Suspensions), or a service reduction, service
denial, or case closure as described in §51.243(a), (b), and (c)(1) -
(6) of this chapter (relating to Service Reductions, Service Denials, and
Case Closures).
(c)
To appeal a DADS action, an individual must make a request
for a hearing orally or in writing to the case manager within 90 days from
the date on the notice of the DADS action.
(d)
DADS may continue MDCP services until the hearing is conducted
if an individual who is currently receiving services requests a hearing within
30 days from the date on the notice of the DADS action and requests that services
continue during the appeal process. An individual must contact the case manager
orally or in writing to make these requests. If the hearing officer upholds
the DADS action, DADS may require the individual to pay DADS for the cost
of services delivered after the effective date of the DADS action.
(e)
If a suspension occurs because of the reckless behavior
described in §51.241(a)(2) of this chapter, then services must not continue
during the appeal process.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State on April 4, 2005.
TRD-200501398
Phoebe Knauer
General Counsel
Department of Aging and Disability Services
Earliest possible date of adoption: May 15, 2005
For further information, please call: (512) 438-3734
1.
ADAPTIVE AIDS
40 TAC §§51.301, 51.303, 51.305, 51.307, 51.309
The new sections are proposed under Government Code §531.0055,
which provides that the HHSC executive commissioner shall adopt rules for
the operation and provision of services by the health and human services agencies,
including the Department of Aging and Disability Services; Human Resources
Code §161.021, which provides that the Aging and Disability Services
Council shall study and make recommendations to the HHSC executive commissioner
and the DADS commissioner regarding rules governing the delivery of services
to persons who are served or regulated by the department; and Government Code §531.021,
which provides HHSC with the authority to administer federal medical assistance
funds and to plan and direct the Medicaid program in each agency that operates
a portion of the Medicaid program.
The new sections affect the Government Code, §531.0055 and §531.021,
and the Human Resources Code §161.021.
§51.301.Procurement.
(a)
Before procuring an adaptive aid costing $100 or more,
an individual must submit a request for the adaptive aid, including the written
specifications and bids, to the case manager for approval.
(b)
The case manager notifies the individual upon approval
or disapproval of the request. If the request is approved, the case manager
notifies the individual of the approved dollar amount.
(c)
In this division, individual means the individual or the
individual's parent or guardian, unless the context clearly indicates otherwise.
§51.303.Specifications for Adaptive Aids.
(a)
An individual must obtain written specifications for each
adaptive aid from:
(1)
a practitioner;
(2)
a physical therapist;
(3)
an occupational therapist;
(4)
a speech pathologist; or
(5)
an adaptive aid provider.
(b)
The individual must ensure that the written specifications
are recorded on a single document that includes:
(1)
the name and address of the individual receiving MDCP services;
(2)
a description of the adaptive aid being specified;
(3)
the written specifications;
(4)
the printed name and dated signature of the person preparing
the written specifications; and
(5)
the individual's dated signature.
§51.305.Bids for Adaptive Aids.
(a)
An individual must obtain a minimum of three written bids
based on the written specifications described in §51.303 of this chapter
(relating to Specifications for Adaptive Aids).
(b)
The individual must make the same specifications available
to each bidder.
(c)
If the individual is unable to obtain three bids, the individual
must contact the case manager and explain why the individual could not obtain
three bids. The individual must be prepared to provide specific information
about his efforts to secure three bids.
§51.307.Enhancements to Adaptive Aids.
If the individual wants to proceed with the purchase of an adaptive
aid that exceeds the cost or scope of the approved request, the individual
is responsible for all costs associated with the enhancement.
§51.309.Vehicle Modifications and Adaptive Equipment.
(a)
For the purpose of this chapter, vehicle modifications
and adaptive equipment are considered adaptive aids, and the individual must
follow the procurement procedures for adaptive aids in this division in addition
to the requirements of this section.
(b)
When requesting a vehicle modification, the individual
provides the following information to the case manager:
(1)
information on the vehicle to be modified, including:
(A)
the year and model of the vehicle;
(B)
proof of ownership;
(C)
current state inspection and tags;
(D)
applicable state insurance; and
(E)
mileage;
(2)
information on the needed modifications; and
(3)
if the individual is not the owner of the vehicle, the
individual must provide the vehicle owner's signed and dated written approval
for the vehicle modification.
(c)
When an individual requests a vehicle modification that
costs $1,000 or more and the vehicle has been driven more than 100,000 miles
or is more than four years old, the individual must submit to the case manager:
(1)
a written evaluation by an experienced mechanic who is
not the provider of the requested vehicle modification to document the sound
mechanical condition of all major components of the vehicle; and
(2)
documentation of the experience of the mechanic who performed
the evaluation.
(d)
Bids for a vehicle modification must include:
(1)
an itemized list of parts and accessories, including their
prices;
(2)
an itemized list of required labor and charges; and
(3)
information on warranty coverage.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State on April 4, 2005.
TRD-200501399
Phoebe Knauer
General Counsel
Department of Aging and Disability Services
Earliest possible date of adoption: May 15, 2005
For further information, please call: (512) 438-3734
40 TAC §§51.321, 51.323, 51.325, 51.327, 51.329, 51.331
The new sections are proposed under Government Code §531.0055,
which provides that the HHSC executive commissioner shall adopt rules for
the operation and provision of services by the health and human services agencies,
including the Department of Aging and Disability Services; Human Resources
Code §161.021, which provides that the Aging and Disability Services
Council shall study and make recommendations to the HHSC executive commissioner
and the DADS commissioner regarding rules governing the delivery of services
to persons who are served or regulated by the department; and Government Code §531.021,
which provides HHSC with the authority to administer federal medical assistance
funds and to plan and direct the Medicaid program in each agency that operates
a portion of the Medicaid program.
The new sections affect the Government Code, §531.0055 and §531.021,
and the Human Resources Code §161.021.
§51.321.Minor Home Modifications.
(a)
Before undertaking a minor home modification, an individual
must submit a request for the minor home modification to the case manager.
For a minor home modification costing $1,000 or more, the request must include
written specifications and bids as described in this division.
(b)
The case manager notifies the individual upon approval
or disapproval of the request. If the request is approved, the case manager
notifies the individual of the approved dollar amount.
(c)
In this division, individual means the individual or the
individual's parent or guardian, unless the context clearly indicates otherwise.
§51.323.List of Minor Home Modifications.
(a)
Minor home modifications covered under MDCP are limited
to:
(1)
the purchase and installation of permanent and portable
ramps;
(2)
widening of doorways;
(3)
modifications to bathroom facilities; and
(4)
modifications related to the approved installation or modification
of ramps, doorways, or bathroom facilities.
(b)
A minor home modification must not create a new structure
or add square footage to the home.
§51.325.Specifications for Minor Home Modifications.
(a)
For a minor home modification costing $1,000 or more, an
individual must obtain written specifications. The individual may obtain separate
written specifications when different contractors will complete different
parts of the modification.
(b)
A person with home modification experience must prepare
the written specifications. The individual must document the experience of
the person preparing the specifications and submit the documentation to the
case manager with the request for the minor home modification.
(c)
The individual must record the specifications on a single
document that includes:
(1)
the individual's name and address;
(2)
a description of the home modification being specified;
(3)
the written specifications, including any applicable local
regulations, any construction requirements, and any applicable Texas Accessibility
Standards;
(4)
the printed name and dated signature of the person who
prepared the written specifications; and
(5)
the individual's dated signature.
§51.327.Owner Approval for Minor Home Modifications.
An individual must obtain written approval for a minor home modification
from the property owner (if leasing or renting) before submitting the request
to the case manager, unless the individual's lease or rental agreement for
the property specifically allows for modifications. Owner approval must be
recorded on a single document that includes:
(1)
the name and address of the person receiving MDCP services;
(2)
a description of the minor home modification;
(3)
the individual's approval of the modification;
(4)
the individual's dated signature;
(5)
the property owner's approval or disapproval of the modification
as described in the written specifications; and
(6)
the property owner's printed name and dated signature.
§51.329.Bids for Minor Home Modifications.
(a)
For a modification costing $1,000 or more, an individual
must obtain a minimum of three written bids based on the written specifications
described in §51.325 of this chapter (relating to Specifications for
Minor Home Modifications).
(b)
The individual must make the same specifications available
to each bidder. Multiple modifications may be included in one bid if the same
contractor will be doing the multiple modifications as one job.
(c)
If the individual is unable to obtain three bids, the individual
must contact the case manager to provide documentation to support the lack
of three bids and explain why the individual could not obtain three bids.
The individual must be prepared to provide specific information about all
efforts to secure three bids.
§51.331.Enhancements to Minor Home Modifications.
If an individual wants to proceed with a minor home modification that
exceeds the cost or scope of the approved request, the individual is responsible
for obtaining new written specifications and for all costs associated with
the enhancement.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State on April 4, 2005.
TRD-200501400
Phoebe Knauer
General Counsel
Department of Aging and Disability Services
Earliest possible date of adoption: May 15, 2005
For further information, please call: (512) 438-3734
1.
CONTRACTING REQUIREMENTS
40 TAC §§51.401, 51.403, 51.405, 51.407
The new sections are proposed under Government Code §531.0055,
which provides that the HHSC executive commissioner shall adopt rules for
the operation and provision of services by the health and human services agencies,
including the Department of Aging and Disability Services; Human Resources
Code §161.021, which provides that the Aging and Disability Services
Council shall study and make recommendations to the HHSC executive commissioner
and the DADS commissioner regarding rules governing the delivery of services
to persons who are served or regulated by the department; and Government Code §531.021,
which provides HHSC with the authority to administer federal medical assistance
funds and to plan and direct the Medicaid program in each agency that operates
a portion of the Medicaid program.
The new sections affect the Government Code, §531.0055 and §531.021,
and the Human Resources Code §161.021.
§51.401.Contracting Requirements.
(a)
General contracting requirements. A provider must:
(1)
meet all provisions described in:
(A)
this chapter;
(B)
Chapter 49 of this title (relating to Contracting for Community
Care Services); and
(C)
Chapter 69 of this title (relating to Contract Administration);
(2)
be contracted with DADS to provide MDCP services;
(3)
operate within the scope of its:
(A)
licensure;
(B)
accreditation;
(C)
education; or
(D)
experience; and
(4)
meet all local, state, and federal regulations.
(b)
Specific contracting requirements.
(1)
A home and community support services agency must be licensed
in the personal assistance services, licensed home health, or licensed and
certified home health categories of licensure.
(2)
An independently contracted LVN must be licensed by the
BNE or hold a license from another state recognized by the BNE to practice
vocational nursing in Texas. An independently contracted RN must be licensed
by the BNE or hold a license from another state recognized by the BNE to practice
professional nursing in the state of Texas.
(3)
A host family must be licensed as a foster home by DFPS
or verified by a child-placing agency that is licensed by DFPS.
(4)
An adaptive aid provider must be:
(A)
enrolled with DADS as a provider of durable medical equipment;
(B)
an entity that sells its products directly; and
(C)
approved by the Department of Assistive and Rehabilitative
Services to install van lifts (if applicable).
(5)
A minor home modification provider must be a general contractor
registered with the Texas Residential Construction Commission.
(6)
A provider contracted to provide consumer directed services
must comply with the requirements in Chapter 41 of this title (relating to
Vendor Fiscal Intermediary Payments).
(7)
A transition assistance services provider must meet the
requirements in Chapter 62 of this title (relating to Contracting to Provide
Transition Assistance Services).
(8)
A camp must be licensed and accredited by the American
Camping Association.
(9)
Other entities that contract to provide MDCP services must
maintain any applicable license.
§51.403.Use of Third-Party Resources.
A provider must attempt to access services through any third-party
resource available to the individual before using MDCP resources. The provider
must maintain documentation in the individual's file showing clearly that
services were requested correctly and were denied by the third-party resource.
§51.405.Monitoring Medicaid Eligibility.
(a)
Each month, the provider must verify the individual's Medicaid
eligibility. The provider may verify the individual's Medicaid eligibility
by:
(1)
viewing the individual's Medicaid Identification form;
or
(2)
using the current systems available through HHSC to verify
eligibility.
(b)
DADS does not reimburse the provider for services delivered
to someone who was not eligible for Medicaid at the time services were delivered.
§51.407.Written Information.
The provider must send by mail, fax, or hand-delivery any written information
that DADS requires of the provider. DADS does not accept e-mail delivery,
unless the provider subsequently sends the original document to DADS by mail,
fax, or hand-delivery.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State on April 4, 2005.
TRD-200501401
Phoebe Knauer
General Counsel
Department of Aging and Disability Services
Earliest possible date of adoption: May 15, 2005
For further information, please call: (512) 438-3734
40 TAC §§51.411, 51.413, 51.415, 51.417, 51.419
The new sections are proposed under Government Code §531.0055,
which provides that the HHSC executive commissioner shall adopt rules for
the operation and provision of services by the health and human services agencies,
including the Department of Aging and Disability Services; Human Resources
Code §161.021, which provides that the Aging and Disability Services
Council shall study and make recommendations to the HHSC executive commissioner
and the DADS commissioner regarding rules governing the delivery of services
to persons who are served or regulated by the department; and Government Code §531.021,
which provides HHSC with the authority to administer federal medical assistance
funds and to plan and direct the Medicaid program in each agency that operates
a portion of the Medicaid program.
The new sections affect the Government Code, §531.0055 and §531.021,
and the Human Resources Code §161.021.
§51.411.General Service Delivery Requirements.
(a)
A provider must provide services as indicated on the service
authorization form.
(b)
A respite or adjunct support services provider must provide
services as indicated on the service authorization form and according to the
service schedule.
(c)
A provider must have an alternative service delivery plan
in case the provider is unable to deliver services as scheduled.
(d)
The provider must ensure that an attendant, RN, or LVN
provides MDCP services to only one individual during the time scheduled for
the individual.
§51.413.Response to Service Authorization.
(a)
A provider must receive the service authorization form
from the case manager before delivering services.
(b)
Within 14 days after receiving the service authorization
form, the provider must send the case manager:
(1)
a signed copy of the service authorization form; and
(2)
a signed copy of the practitioner's orders. This paragraph
applies only to a respite or adjunct support services provider that is:
(A)
a home and community support services agency using:
(i)
an RN;
(ii)
an LVN; or
(iii)
an attendant with delegated nursing tasks; or
(B)
an independently contracted RN or LVN.
§51.415.Notification to the Individual.
(a)
Within 14 days of receiving the service authorization form,
a provider must give the following information to the individual:
(1)
the provider's alternative service delivery plan in case
the provider is unable to deliver services as scheduled;
(2)
the individual's right to change providers;
(3)
the procedure to file a complaint about the provider, in
accordance with §49.17 of this title (relating to Complaint Procedures);
and
(4)
the procedure to report abuse and neglect.
(b)
The provider must notify the individual in writing on or
before the service initiation date if the provider is unable to provide services
as indicated on the service authorization form or has any limitations in delivery
of services.
(c)
After the service initiation date, the provider must notify
the individual orally or in writing at least five days before suspending services
as referenced in §51.419 of this chapter (relating to Service Suspensions).
If the provider's first notification is oral, the provider must send written
notification to the individual within five working days of the first notification.
§51.417.Notification to the Case Manager.
(a)
Required notification. A provider must notify the case
manager if:
(1)
the individual's primary caregiver refuses to comply with
the IPC;
(2)
the provider is unable to verify the individual's Medicaid
eligibility as required in §51.405 of this chapter (relating to Monitoring
Medicaid Eligibility);
(3)
the provider is unable to begin services on the service
initiation date. This notification must include:
(A)
an explanation of why there is a delay in the service initiation
date; and
(B)
an expected date that services will begin; or
(4)
the provider makes any changes in service delivery.
(b)
Method and deadline for notification.
(1)
The provider must notify the case manager orally or by
fax about any circumstance described in subsection (a) of this section no
later than one working day after awareness.
(2)
If the provider's notification is oral, the provider must
speak directly with the case manager. If the provider is unable to speak directly
with the case manager, the provider may leave a telephone message. If the
provider leaves a telephone message, the provider must document all attempts
to meet the deadline and make a follow-up contact with the case manager within
one working day.
(3)
If the provider's notification is oral, the provider must
send written notification to the case manager within five working days of
the oral notification.
§51.419.Service Suspensions.
(a)
Required service suspensions. A provider must suspend services
to an individual if or when the individual:
(1)
is admitted for purposes other than respite services to:
(A)
a hospital (if the services are provided by an RN or an
LVN);
(B)
a nursing facility (if the services are provided by an
RN or an LVN);
(C)
a state mental retardation facility;
(D)
a state mental health facility;
(E)
a rehabilitation hospital; or
(F)
an intermediate care facility for persons with mental retardation
or related conditions; or
(2)
someone in the individual's residence exhibits reckless
behavior that may result in imminent danger to the health and safety of the
individual, the provider, or another person. If this occurs the provider must
make an immediate referral to:
(A)
DFPS or other appropriate protective services agency;
(B)
local law enforcement; and
(C)
the case manager.
(b)
Other service suspensions. A provider may suspend services
to an individual:
(1)
if the individual or someone in the individual's residence
discriminates against a provider or a DADS employee; or
(2)
if the individual refuses to follow the practitioner's
orders as they pertain to MDCP services.
(c)
Notification of service suspension. The provider must notify
the case manager orally or by fax about a service suspension no later than
one working day after services are suspended. If the provider's notification
is oral, the provider must send written notification to the case manager within
five working days of the first notification.
(d)
Notification requirements. The notification must include:
(1)
the date of service suspension;
(2)
the reason for the suspension;
(3)
the duration of the suspension, if known; and
(4)
an explanation of the provider's attempts to resolve the
problem that caused the suspension, including the reason why the problem was
not resolved. This subparagraph applies only to circumstances described in
subsections (a)(2) and (b) of this section.
(e)
Resuming services after a suspension. The provider must
resume services after a suspension:
(1)
on the date specified in writing by the case manager;
(2)
upon the individual's return home from an institution listed
in subsection (a)(1) of this section; or
(3)
on the date the provider becomes aware of the individual's
return home.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State on April 4, 2005.
TRD-200501402
Phoebe Knauer
General Counsel
Department of Aging and Disability Services
Earliest possible date of adoption: May 15, 2005
For further information, please call: (512) 438-3734
40 TAC §51.421
The new section is proposed under Government Code §531.0055,
which provides that the HHSC executive commissioner shall adopt rules for
the operation and provision of services by the health and human services agencies,
including the Department of Aging and Disability Services; Human Resources
Code §161.021, which provides that the Aging and Disability Services
Council shall study and make recommendations to the HHSC executive commissioner
and the DADS commissioner regarding rules governing the delivery of services
to persons who are served or regulated by the department; and Government Code §531.021,
which provides HHSC with the authority to administer federal medical assistance
funds and to plan and direct the Medicaid program in each agency that operates
a portion of the Medicaid program.
The new section affects the Government Code, §531.0055 and §531.021,
and the Human Resources Code §161.021.
§51.421.Requirements for Attendants.
(a)
When an individual selects his attendant, the home and
community support services agency (HCSSA) provider may hire that attendant
if the attendant:
(1)
meets minimum qualifications of the HCSSA for the service
required as specified in Chapter 97 of this title (relating to Licensing Standards
for Home and Community Support Services Agencies);
(2)
is willing to be employed by the HCSSA; and
(3)
is determined by the HCSSA RN to be competent to deliver
the service according to the IPC.
(b)
A provider must not hire or employ an attendant if that
attendant is:
(1)
the parent or guardian of the individual; or
(2)
a person who lives in the individual's residence.
(c)
A provider who employs an attendant for an individual must:
(1)
provide the attendant with individual-specific information
and training in the individual's residence on all tasks that the attendant
will perform;
(2)
deliver the training according to the requirements described
in §97.245 of this title (relating to Staffing Policies); and
(3)
document:
(A)
when the training was conducted; and
(B)
the tasks covered in the training.
This agency hereby certifies that the proposal
has been reviewed by legal counsel and found to be within the agency's legal
authority to adopt.
Filed
with the Office of the Secretary of State on April 4, 2005.
TRD-200501403
Phoebe Knauer
General Counsel
Department of Aging and Disability Services
Earliest possible date of adoption: May 15, 2005
For further information, please call: (512) 438-3734
40 TAC §51.431, §51.433
The new sections are proposed under Government Code §531.0055,
which provides that the HHSC executive commissioner shall adopt rules for
the operation and provision of services by the health and human services agencies,
including the Department of Aging and Disability Services; Human Resources
Code §161.021, which provides that the Aging and Disability Services
Council shall study and make recommendations to the HHSC executive commissioner
and the DADS commissioner regarding rules governing the delivery of services
to persons who are served or regulated by the department; and Government Code §531.021,
which provides HHSC with the authority to administer federal medical assistance
funds and to plan and direct the Medicaid program in each agency that operates
a portion of the Medicaid program.
The new sections affect the Government Code, §531.0055 and §531.021,
and the Human Resources Code §161.021.
§51.431.Host Family Requirements.
(a)
The host family must not provide services in its residence
to more than four persons unrelated to the individual at one time.
(b)
The host family must ensure that:
(1)
the individual participates in age-appropriate community
activities; and
(2)
the host family home environment is healthy and safe for
the individual.
(c)
The host family must provide services in a residence that
the host family owns or leases. The residence must be a typical residence
in the neighborhood and must meet the needs of the individual.
§51.433.Host Family Duties.
(a)
The host family must provide services to the individual
as authorized on the IPC, including:
(1)
direct personal assistance with activities of daily living;
(2)
assistance with meal planning and preparation;
(3)
assistance with housekeeping;
(4)
assistance with communication and mobility;
(5)
reinforcement of behavioral, educational, and therapeutic
activities;
(6)
assistance with medication and the performance of tasks;
(7)
supervision for the individual's safety;
(8)
transportation related to routine family activities; and
(9)
assistance with participation in community activities.
(b)
The host family must:
(1)
allow the individual's family members and friends access
to the individual without arbitrary restrictions, unless exceptional conditions
are justified, documented in the IPC, and approved by the case manager;
(2)
assist a school-age individual in receiving educational
services provided by the local school district in a six-hour-per-day program
five days a week, unless the individual's practitioner or the school system
justifies a reduced schedule;
(3)
ensure that a preschool-age individual receives an early
childhood education with appropriate activities and services, including small
group and individual play with peers without disabilities, unless justification
for not participating in such activities is documented and approved by the
case manager;
(4)
provide the individual with age-appropriate activities
that enhance self-esteem and maximize functional level; and
(5)
ensure that the individual receives medical care prescribed
by a practitioner, including:
(A)
doctors' appointments;
(B)
medications;
(C)
evaluations, therapies, and treatment; and
(D)
laboratory work and other medical tests.
(c)
Each month, the host family must provide progress notes
to the case manager, including a summary of:
(1)
socialization activities;
(2)
use of third-party resources;
(3)
other services included on the IPC; and
(4)
documentation of justification for a reduced school schedule
as required in subsection (b)(2) of this section.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State on April 4, 2005.
TRD-200501404
Phoebe Knauer
General Counsel
Department of Aging and Disability Services
Earliest possible date of adoption: May 15, 2005
For further information, please call: (512) 438-3734
40 TAC §51.441
The new section is proposed under Government Code §531.0055,
which provides that the HHSC executive commissioner shall adopt rules for
the operation and provision of services by the health and human services agencies,
including the Department of Aging and Disability Services; Human Resources
Code §161.021, which provides that the Aging and Disability Services
Council shall study and make recommendations to the HHSC executive commissioner
and the DADS commissioner regarding rules governing the delivery of services
to persons who are served or regulated by the department; and Government Code §531.021,
which provides HHSC with the authority to administer federal medical assistance
funds and to plan and direct the Medicaid program in each agency that operates
a portion of the Medicaid program.
The new section affects the Government Code, §531.0055 and §531.021,
and the Human Resources Code §161.021.
§51.441.Consumer Directed Services.
(a)
This section applies only to a provider serving an individual
who chooses service delivery through consumer directed services.
(b)
The consumer directed services payment option may only
be used for respite or adjunct support services provided by an attendant.
(c)
An RN or LVN employed by a provider that is a home and
community support services agency is not responsible for supervising any task
listed in Government Code, §531.051(h) when an individual enrolled in
consumer directed services or the individual's parent or guardian chooses
to supervise any of those tasks.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State on April 4, 2005.
TRD-200501405
Phoebe Knauer
General Counsel
Department of Aging and Disability Services
Earliest possible date of adoption: May 15, 2005
For further information, please call: (512) 438-3734
40 TAC §51.451
The new section is proposed under Government Code §531.0055,
which provides that the HHSC executive commissioner shall adopt rules for
the operation and provision of services by the health and human services agencies,
including the Department of Aging and Disability Services; Human Resources
Code §161.021, which provides that the Aging and Disability Services
Council shall study and make recommendations to the HHSC executive commissioner
and the DADS commissioner regarding rules governing the delivery of services
to persons who are served or regulated by the department; and Government Code §531.021,
which provides HHSC with the authority to administer federal medical assistance
funds and to plan and direct the Medicaid program in each agency that operates
a portion of the Medicaid program.
The new section affects the Government Code, §531.0055 and §531.021,
and the Human Resources Code §161.021.
§51.451.Transition Assistance Services.
(a)
Provider requirement. A provider must complete transition
assistance services at least two days before an individual's discharge from
a nursing facility and in accordance with Chapter 62 of this title (relating
to Contracting to Provide Transition Assistance Services). Transition assistance
services can be delivered only once in a person's lifetime.
(b)
Required notification. If a provider cannot complete transition
assistance services at least two days before the individual's discharge from
the nursing facility, the provider must notify the case manager before the
discharge date by speaking directly with the case manager to:
(1)
give a description of the pending services;
(2)
state the reason for the delay;
(3)
give an anticipated date of service delivery or state why
the provider cannot anticipate a delivery date; and
(4)
give a description of the provider's efforts to deliver
the services.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State on April 4, 2005.
TRD-200501406
Phoebe Knauer
General Counsel
Department of Aging and Disability Services
Earliest possible date of adoption: May 15, 2005
For further information, please call: (512) 438-3734
40 TAC §§51.461, 51.463, 51.465
The new sections are proposed under Government Code §531.0055,
which provides that the HHSC executive commissioner shall adopt rules for
the operation and provision of services by the health and human services agencies,
including the Department of Aging and Disability Services; Human Resources
Code §161.021, which provides that the Aging and Disability Services
Council shall study and make recommendations to the HHSC executive commissioner
and the DADS commissioner regarding rules governing the delivery of services
to persons who are served or regulated by the department; and Government Code §531.021,
which provides HHSC with the authority to administer federal medical assistance
funds and to plan and direct the Medicaid program in each agency that operates
a portion of the Medicaid program.
The new sections affect the Government Code, §531.0055 and §531.021,
and the Human Resources Code §161.021.
§51.461.Delivery of Adaptive Aids.
(a)
The provider must deliver the adaptive aid that meets the
written specifications.
(b)
The provider must:
(1)
deliver the adaptive aid within 30 working days of one
of the following dates, whichever is later:
(A)
the effective date of the IPC; or
(B)
the date the provider receives and date stamps the service
authorization form; or
(2)
notify the individual and the case manager in writing of
any delay in completing delivery of the adaptive aid, the reason for the delay,
and the new proposed date of delivery.
(A)
The individual and the case manager must receive the notification
on or before the 30th working day described in paragraph (1) of this subsection.
(B)
If DADS determines the documented reason for the delay
is outside the provider's control, the provider is considered to be in compliance
with this section.
§51.463.Follow-up After Delivery of Adaptive Aids.
(a)
Within seven working days from the date the adaptive aid
is delivered, the provider must contact the individual to:
(1)
verify the delivery of the adaptive aid;
(2)
determine and document the individual's satisfaction or
dissatisfaction with the adaptive aid; and
(3)
orient the individual on the use of the adaptive aid.
(b)
The provider must make a home visit if the individual is
dissatisfied with the adaptive aid or needs additional training or orientation
on its use. If the provider can resolve the dissatisfaction, the provider
must do so within seven working days of the home visit. If the provider cannot
resolve the dissatisfaction, the provider must contact the case manager within
seven working days of the home visit.
(c)
Within 14 working days of the initial contact required
in subsection (a) of this section, the provider must complete the home visit
and document delivery of the adaptive aid as described in §51.505 of
this chapter (relating to Purchase Completion Documentation).
§51.465.Reimbursement of Adaptive Aids.
To be reimbursed for an adaptive aid, the provider must:
(1)
complete purchase documentation as described in §51.505
of this chapter (relating to Purchase Completion Documentation);
(2)
submit a claim to the entity designated by HHSC to process
claims payments when the adaptive aid is delivered;
(3)
maintain complete documentation of services delivered;
and
(4)
ensure that the claim submitted is for expenses incurred
before the death or ineligibility of the individual.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State on April 4, 2005.
TRD-200501407
Phoebe Knauer
General Counsel
Department of Aging and Disability Services
Earliest possible date of adoption: May 15, 2005
For further information, please call: (512) 438-3734
40 TAC §§51.471, 51.473, 51.475, 51.477, 51.479
The new sections are proposed under Government Code §531.0055,
which provides that the HHSC executive commissioner shall adopt rules for
the operation and provision of services by the health and human services agencies,
including the Department of Aging and Disability Services; Human Resources
Code §161.021, which provides that the Aging and Disability Services
Council shall study and make recommendations to the HHSC executive commissioner
and the DADS commissioner regarding rules governing the delivery of services
to persons who are served or regulated by the department; and Government Code §531.021,
which provides HHSC with the authority to administer federal medical assistance
funds and to plan and direct the Medicaid program in each agency that operates
a portion of the Medicaid program.
The new sections affect the Government Code, §531.0055 and §531.021,
and the Human Resources Code §161.021.
§51.471.General Requirements.
(a)
The provider must obtain all applicable building permits
before starting a minor home modification.
(b)
The provider must complete the minor home modification
according to:
(1)
the written specifications;
(2)
Texas Accessibility Standards; and
(3)
any other agreement signed by all parties before the job
began.
(c)
The provider must not hire or reimburse a spouse, parent,
or guardian of an individual for work related to the modification, including
preparation of the written specifications and the inspection.
§51.473.Time Frames for Completion of Minor Home Modifications.
The provider must:
(1)
ensure completion of the minor home modification within
30 working days of one of the following dates, whichever is later:
(A)
the effective date of the IPC; or
(B)
the date the provider receives and date stamps the service
authorization form; or
(2)
notify the individual and the case manager in writing of
any delay in completion of the modification, the reason for the delay, and
the new proposed date of completion.
(A)
The notification must be received on or before the 30th
working day described in paragraph (1) of this section.
(B)
If DADS determines the documented reason for the delay
is outside the provider's control, the provider is considered to be in compliance
with this section.
§51.475.Inspection and Follow-Up.
(a)
The provider must ensure that someone who did not complete
the minor home modification inspects the minor home modification.
(b)
The inspection must be made on-site within seven working
days of the completion date to determine whether the modification:
(1)
was completed;
(2)
is in compliance with Texas Accessibility Standards and
any other applicable standards or codes; and
(3)
is in compliance with the written specifications, if applicable.
(c)
For requirements concerning reimbursement of the inspection
fee, see §51.477 of this chapter (relating to Reimbursement of Minor
Home Modifications).
(d)
Within seven working days of the date a completed minor
home modification is inspected, the provider must contact the individual to:
(1)
verify the completion of the minor home modification; and
(2)
determine and document the individual's satisfaction or
dissatisfaction with the minor home modification.
(e)
The provider must make a home visit if the individual is
dissatisfied with the minor home modification. If the provider can resolve
the dissatisfaction, the provider must do so within seven working days of
the home visit. If the provider cannot resolve the dissatisfaction, the provider
must contact the case manager within seven working days of the home visit.
(f)
Within 14 working days of the initial contact required
in subsection (d) of this section, the provider must complete the home visit
and document the completion and inspection of the minor home modification
as described in §51.505 of this chapter (relating to Purchase Completion
Documentation).
§51.477.Reimbursement of Minor Home Modifications.
(a)
Reimbursement for inspection. The fee for inspecting a
minor home modification, not to exceed $150, is reimbursable as part of the
modification. The inspection fee must be approved as part of the bid.
(b)
Reimbursement for completed minor home modifications. The
provider must:
(1)
complete and maintain documentation that the modification,
including the inspection, is completed and approved, as described in §51.505
of this chapter (relating to Purchase Completion Documentation);
(2)
submit a claim to the entity designated by HHSC to process
claims payments when the minor home modification is completed and passes the
inspection described in §51.475(a) and (b) of this chapter (relating
to Inspection and Follow-Up); and
(3)
maintain documentation that:
(A)
the claim submitted is for expenses incurred before the
death or ineligibility of the individual; and
(B)
all subcontractors have been paid.
§51.479.Accountability for Minor Home Modifications.
The provider is responsible for all repairs or replacement of a minor
home modification during the first year after completion, unless the individual
or the individual's family members caused the need for repair or replacement.
If the individual or the individual's family members caused the need for repair
or replacement, then the individual or the individual's parent or guardian
is responsible for the repair or replacement.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State on April 4, 2005.
TRD-200501408
Phoebe Knauer
General Counsel
Department of Aging and Disability Services
Earliest possible date of adoption: May 15, 2005
For further information, please call: (512) 438-3734
40 TAC §§51.501, 51.503, 51.505, 51.507, 51.509, 51.511, 51.513, 51.515
The new sections are proposed under Government Code §531.0055,
which provides that the HHSC executive commissioner shall adopt rules for
the operation and provision of services by the health and human services agencies,
including the Department of Aging and Disability Services; Human Resources
Code §161.021, which provides that the Aging and Disability Services
Council shall study and make recommendations to the HHSC executive commissioner
and the DADS commissioner regarding rules governing the delivery of services
to persons who are served or regulated by the department; and Government Code §531.021,
which provides HHSC with the authority to administer federal medical assistance
funds and to plan and direct the Medicaid program in each agency that operates
a portion of the Medicaid program.
The new sections affect the Government Code, §531.0055 and §531.021,
and the Human Resources Code §161.021.
§51.501.Service Delivery Record.
A respite or adjunct support services provider must maintain a service
delivery record that contains the following:
(1)
the individual's name;
(2)
the individual's Medicaid number;
(3)
the IPC year;
(4)
the provider's name and vendor number;
(5)
the name of the person providing services and any applicable
credentials;
(6)
the authorized service and description from the IPC;
(7)
the tasks assigned;
(8)
the dates of service delivery; and
(9)
the units of service delivered.
§51.503.In-Home Record.
(a)
A respite or adjunct support services provider must maintain
an in-home record in the individual's residence that contains:
(1)
service delivery records from the last seven days of service;
(2)
the individual's practitioner's name and telephone number;
(3)
a signed copy of the Client's Rights and Responsibilities
form;
(4)
a written evacuation plan;
(5)
emergency contact numbers;
(6)
an alternative service delivery plan for provider coverage;
(7)
contact numbers for reporting complaints, abuse, or neglect;
(8)
practitioner's orders for any skilled care or tasks, medications,
or delegated tasks, signed within the preceding 12 months, if applicable;
and
(9)
if applicable, signed and dated nursing notes that must
include the following information:
(A)
medication administration or treatment;
(B)
nursing interventions completed according to practitioner's
orders; and
(C)
the nursing assessment completed at the beginning of each
shift.
(b)
If a provider delivers services that will be reimbursed
by a third-party resource, the in-home record must specify the date and time
those services were delivered.
§51.505.Purchase Completion Documentation.
(a)
An adaptive aid or minor home modification provider must
record the completion of purchase for a minor home modification or an adaptive
aid on a single document that includes:
(1)
the name of the individual and the individual's parent
or guardian, if applicable;
(2)
the individual's address;
(3)
a description of the modification or adaptive aid;
(4)
the date of completion or delivery;
(5)
a statement of satisfaction or dissatisfaction with the
minor home modification or adaptive aid; and
(6)
the provider's name and vendor number.
(b)
In addition to the requirements in subsection (a) of this
section, the minor home modification provider must include the following on
the purchase completion document:
(1)
the name and qualifications of the inspector;
(2)
whether the minor home modification was:
(A)
completed according to Texas Accessibility Standards; and
(B)
completed according to any required written specifications;
(3)
the inspector's dated signature; and
(4)
the individual's dated signature.
(c)
In addition to the requirements in subsection (a) of this
section, the adaptive aid provider must include the following on the purchase
completion document:
(1)
the name and title of the person completing the orientation
on the adaptive aid; and
(2)
the date of the orientation on the adaptive aid.
(d)
If the provider must make a home visit to the individual
due to the individual's dissatisfaction or to provide additional orientation,
the provider must send a copy of the purchase completion documentation to
the case manager within seven working days of the home visit.
(e)
After all purchase completion documentation activities
are complete, the provider's representative must sign and date the purchase
completion document referenced in subsection (a) of this section and submit
it to the case manager within seven working days of the dated signature.
§51.507.Reimbursement.
(a)
General billing requirements. The provider must bill DADS
for services provided as described in §49.41 of this title (related to
Billings and Claims Payment).
(b)
Unit rate. The provider must agree to accept and DADS will
pay only the unit rate established by HHSC.
(c)
Documentation. The provider must maintain the documentation
described in this chapter to be eligible for reimbursement.
§51.509.Claims and Service Delivery Records.
(a)
The provider must ensure that the claim for reimbursement
corresponds to the provider's service authorization form and service delivery
records and that the records contain:
(1)
the IPC and attachments; and
(2)
documentation of services delivered.
(b)
In addition to the requirements in subsection (a) of this
section, the minor home modification provider's records must contain:
(1)
receipts from the subcontractor (if applicable) for the
completed minor home modification, documenting the date of completion and
the cost of the modification;
(2)
any applicable building permits;
(3)
written specifications, if required;
(4)
written approval from the homeowner for the minor home
modification made; and
(5)
purchase completion documentation, as described in §51.505
of this chapter (relating to Purchase Completion Documentation).
(c)
In addition to the requirements in subsection (a) of this
section, an adaptive aid provider's records must contain:
(1)
written approval from the vehicle owner for any vehicle
modification made; and
(2)
purchase completion documentation, as described in §51.505
of this chapter.
§51.511.Billable Time and Activities.
The provider may bill for and DADS will approve payment for:
(1)
respite services;
(2)
adjunct support services;
(3)
minor home modifications, including:
(A)
cost of labor;
(B)
materials;
(C)
sales tax;
(D)
actual cost of written specification development up to
$200; and
(E)
actual cost of the inspection up to $150;
(4)
adaptive aids, including:
(A)
invoice cost of the item;
(B)
actual cost, when the item is purchased through a supplier;
and
(C)
sales tax; and
(5)
transition assistance services.
§51.513.Non-billable Time and Activities.
A provider must not bill for and DADS will not approve payment for:
(1)
more than 16 hours of services provided by the same person
within a 24-hour period;
(2)
services provided to any family member other than the individual;
(3)
time spent filing claims for services;
(4)
travel to and from the individual's home;
(5)
processing paperwork or completing records or reports;
(6)
services not approved by authorized DADS staff;
(7)
the cost of making a home visit that is not included in
the bid (for example, to perform orientation or make adjustments to an adaptive
aid);
(8)
the delivery charge for an adaptive aid;
(9)
office equipment, supplies, and other office expenses,
including:
(A)
fax machines;
(B)
printers and copiers;
(C)
scanners; and
(D)
Internet and e-mail services;
(10)
a repair covered under a warranty;
(11)
a minor home modification that does not pass inspection;
(12)
interest or other charges on past due expenses;
(13)
property or income taxes; or
(14)
insurance coverage or benefits payments, such as:
(A)
life insurance;
(B)
accidental insurance;
(C)
death benefits;
(D)
burial policies;
(E)
funeral expenses; or
(F)
home insurance coverage or deductibles.
§51.515.Record Keeping.
(a)
General record-keeping requirements. The provider must
maintain records according to:
(1)
Chapter 49 of this title (relating to Contracting for Community
Care Services);
(2)
Chapter 69 of this title (relating to Contract Administration);
and
(3)
the terms of the contract.
(b)
Program-specific records. The provider must maintain records
that demonstrate compliance with the requirements of this chapter.
(c)
Financial records. The provider must maintain financial
records:
(1)
to support billing for payment under §51.507 of this
chapter (relating to Reimbursement);
(2)
to document the receipt of the reimbursement. The documentation
must include:
(A)
the amount of the reimbursement;
(B)
the voucher number;
(C)
the warrant number;
(D)
the date of receipt; and
(E)
any other information necessary to trace deposits of reimbursements
and payment made from the reimbursements in the provider's accounting system
(if applicable); and
(3)
in accordance with generally accepted accounting principles
(GAAP) and DADS procedures. A provider's financial records must include the
following, as applicable:
(A)
deposit slips, bank statements, cancelled checks, and receipts;
(B)
purchase orders;
(C)
invoices;
(D)
journals and ledgers;
(E)
payroll and tax records;
(F)
service delivery documentation;
(G)
Internal Revenue Service and Department of Labor records
and other government records and forms;
(H)
records of insurance coverage, claims, and payments (for
example, medical, liability, fire and casualty, and workers' compensation);
(I)
equipment inventory records;
(J)
records of the provider's internal accounting procedures;
(K)
chart of accounts, as defined by GAAP; and
(L)
records of the provider's company policies.
(d)
Subcontractor records. The provider must maintain invoices,
contracts, and service delivery records on all subcontractors. Maintenance
of all records to support claims is the responsibility of the provider.
(e)
Failure to maintain records. Failure to maintain records
as required in this section may result in:
(1)
corrective action plans;
(2)
vendor hold as described in §49.61(b) of this title
(relating to Sanctions); or
(3)
other action that DADS deems necessary or appropriate.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State on April 4, 2005.
TRD-200501409
Phoebe Knauer
General Counsel
Department of Aging and Disability Services
Earliest possible date of adoption: May 15, 2005
For further information, please call: (512) 438-3734
40 TAC §§95.101, 95.103, 95.107, 95.109, 95.111, 95.113, 95.115, 95.117, 95.119, 95.121, 95.123, 95.125, 95.127, 95.128
The Texas Health and Human Services Commission (HHSC) proposes,
on behalf of the Department of Aging and Disability Services (DADS), to amend §95.101,
concerning purpose and definitions; §95.103, concerning requirements
for administering medications; §95.107, concerning training requirements,
nursing graduates, and reciprocity; §95.109, concerning application procedures; §95.111,
concerning examinations; §95.113, concerning determination of eligibility; §95.115,
concerning permit renewal; §95.117, concerning notification of changes; §95.119,
concerning training program requirements; §95.121, concerning permitting
of persons with criminal backgrounds; §95.123, concerning violations,
complaints, and disciplinary actions; §95.125, concerning requirements
for correctional institutions; §95.127, concerning application processing;
and §95.128, concerning home health medication aides, in Chapter 95,
Medication Aides--Program Requirements.
The purpose of the proposed amendments is, in part, to implement legislation
enacted by the 78th Texas Legislature regarding medication aides in facilities
and to reflect current DADS procedures. The amendments also correct references
to statutes, other rules, and agency names.
Throughout the proposal, the name of the Texas Department of Human Services
is amended to reflect the name of the agency that now administers the medication
aide permit program, which is the Department of Aging and Disability Services.
The proposal also replaces references to the Board of Vocational Nurse Examiners
with the Board of Nurse Examiners for the State of Texas, and corrects the
statutory citation governing medication aides in facilities from Health and
Safety Code, Chapter 242, Subchapter F, to Health and Safety Code, Chapter
242, Subchapter N.
The amendments to §95.107 and §95.111 amend the due dates for
various actions in the permit application and renewal processes from "within
45 days" to "by the date given" to reflect actual DADS procedures. Proposed §95.109(c)(1)(C)
and §95.115(c)(2) - (5) expand the permit renewal fee structure to institute
late renewal fees for a permit holder who applies to renew his permit less
than one year after his permit has expired or who wishes to reinstate his
permit after working as a medication aide in another state. The amendment
to §95.111 also establishes DADS' procedures for notifying an applicant
of the results of an examination and allows an applicant who fails an exam
to request an analysis of his performance on the exam.
The proposed amendment to §95.115: (1) establishes DADS' procedure
for a staggered licensing renewal system and removes references to all permits
expiring on December 31 of each year; (2) prohibits a person whose permit
has expired from working as a medication aide until the permit has been renewed;
(3) allows a permit holder to renew an unexpired permit by paying the renewal
fee to DADS before the expiration date; (4) provides a time frame and fee
structure for assessing late renewal fees; and (5) changes the permissible
time period for permit renewal from up to two years after expiration to no
more than one year after expiration.
The amendment to §95.123(c) establishes DADS' procedures for revoking,
suspending, or refusing to renew a permit for a permit holder who violates
Health and Safety Code, Chapter 242, Subchapter N, or the rules governing
medication aides, and for placing on probation a person whose permit is suspended.
The proposed amendments to §95.109 and §95.128(n) require payment
of an application fee or a renewal fee by cashier's check or money order only
and delete references in §95.128 to procedures to be followed if a personal
check is not honored by a financial institution.
Gordon Taylor, DADS Chief Financial Officer, has determined that, for each
of the first five years the proposed amendments are in effect, there are fiscal
implications for state government as a result of enforcing or administering
the amended sections. There are no foreseeable implications relating to costs
or revenues of local governments.
The effect on state government for the first five years the sections are
in effect is an estimated additional cost of $16,400 in fiscal year (FY) 2006,
$0 in FY 2007, $0 in FY 2008, $0 in FY 2009, and $0 in FY 2010; and an estimated
increase in revenue of $41,895 in FY 2006, $41,895 in FY 2007, $41,895 in
FY 2008, $41,895 in FY 2009, and $41,895 in FY 2010.
Veronda Durden, DADS Assistant Commissioner for Regulatory Services, has
determined that, for each year of the first five years the amendments are
in effect: (1) the public benefit expected as a result of enforcing the amended
sections is the promulgation of rules that reflect current agency names and
DADS procedures for permitting medication aides, and that are consistent with
Health and Safety Code, Chapter 242, Subchapter N; and (2) the late renewal
fees required in §95.115(c) will impose an economic cost on active medication
aides who are eligible for permit renewal but who fail to renew their permits
by the expiration date.
DADS has determined that: (1) there is no adverse economic effect on small
businesses or micro-businesses as a result of enforcing or administering the
amendments, because the proposal does not affect small businesses or micro-businesses;
(2) the amendments will not affect a local economy; and (3) the proposal does
not restrict or limit an owner's right to his or her property that would otherwise
exist in the absence of government action and, therefore, does not constitute
a taking under Texas Government Code, §2007.043.
Questions about the content of this proposal may be directed to Lynette
Sanders at (512) 231-5810 in DADS' Licensing and Credentialing Section. Written
comments on the proposal may be submitted to Texas Register Liaison, Legal
Services-013, Department of Aging and Disability Services W-615, P.O. Box
149030, Austin, Texas 78714-9030, within 30 days of publication in the
The amendments are proposed under the Texas Government Code, §531.0055,
which provides that the executive commissioner of HHSC shall adopt rules for
the operation and provision of services by the health and human services agencies,
including DADS; Texas Human Resources Code, §161.021, which provides
that the Aging and Disability Services Council shall study and make recommendations
to the HHSC executive commissioner and the DADS commissioner regarding rules
governing the delivery of services to persons who are served or regulated
by DADS; Health and Safety Code, Chapter 142, Subchapter B, which authorizes
DADS to regulate the administration of medication by home and community support
services agencies, including the regulation of medication aides who are employed
by home and community support services agencies; and Health and Safety Code,
Chapter 242, Subchapter N, which authorizes DADS to regulate the administration
of medication in nursing and other facilities, including the regulation of
medication aides in nursing and other facilities.
The amendments implement the Texas Government Code, §531.0055; the
Human Resources Code, §161.021; and the Health and Safety Code, §§142.021
- 142.030 and §§242.601 - 242.614.
§95.101.Introduction.
(a)
Purpose. The purpose of this chapter is to implement the
provisions of the
:
(1)
Health and Safety Code, Chapter 242, Subchapter
N
[
(2)
Health and Safety Code, Chapter
142, Subchapter B, concerning the administration of medication by a home and
community support services agency.
(b)
Definitions. The following words and terms, when used in
this chapter, [
(1)
(No change.)
(2)
BNE--Board of Nurse Examiners
for the State of Texas.
(3)
DADS--Department of Aging and
Disability Services.
(4)
[
(5)
[
(6)
[
(7)
[
(8)
[
(9)
[
(10)
[
(11)
[
(12)
[
(13)
[
(14)
[
(15)
[
§95.103.Requirements for Administering Medications.
(a)
(No change.)
(b)
Supervision and applicable law and rules. A permit holder
must function under the direct supervision of a licensed nurse on duty or
on call by the facility using the permit holder. A permit holder must:
(1)
(No change.)
(2)
comply with
DADS
[
(c)
Governmental employees. Governmental employees may receive
a permit to administer medications under this chapter as authorized by Health
and Safety Code,
§242.610(f)
[
(1)
State school employees and employees of
an intermediate
care facility for persons with mental retardation operated by a community
mental retardation center established under Health and Safety Code, Chapter
534
[
(2)
(No change.)
(d)
(No change.)
(e)
Exemptions
[
(1)
A person may administer medication to a resident in a facility
without the license or permit as required in subsection (a) of this section,
if the person is:
(A) - (B)
(No change.)
(C)
a graduate vocational nurse holding a temporary permit
issued by the
BNE
[
(D)
(No change.)
(E)
a trainee in a medication aide training program approved
by
DADS
[
(2) - (3)
(No change.)
§95.107.Training Requirements; Nursing Graduates; Reciprocity.
(a)
Each applicant for a permit issued under Health and Safety
Code, Chapter 242, Subchapter
N
[
(b)
(No change.)
(c)
A person who is attending or has attended an accredited
school of nursing and who does not hold a license to practice professional
or vocational nursing meets the training requirement for issuance of a permit
under this chapter if the person:
(1)
(No change.)
(2)
successfully completed courses at the nursing school
that
[
(3)
submits a statement on the form provided by
DADS that
[
(4)
(No change.)
(d)
A person who is a graduate of an accredited school of nursing
and who does not hold a license to practice professional or vocational nursing
meets the training requirement for issuance of a permit under this chapter
provided the date of graduation from the nursing school was no earlier than
January 1 of the year immediately preceding the year of application for a
permit under this chapter.
(1)
The graduate must submit an
[
(2) - (3)
(No change.)
(4)
DADS acknowledges
[
(5)
The applicant must complete the open book examination and
return it
to DADS by the date given in the examination notice
[
(6)
The applicant must complete
DADS'
[
(7)
An open-book or written examination
may
[
(8)
Upon successful completion of the two examinations,
DADS evaluates
[
(9)
DADS notifies
[
(e)
A person who holds a valid license, registration, certificate,
or permit as a medication aide issued by another state whose minimum standards
or requirements are substantially equivalent to or exceed the requirements
of this chapter in effect at the time of application, may request a waiver
of the training program requirement
as follows:
[
(1)
The applicant must submit an
[
(2)
The application must be accompanied by the permit application
fee
required
[
(3)
The application must include a current copy of the rules
of the other state governing its licensing and regulation of medication aides,
a copy of the legal authority (law, act, code, or other) for the state's licensing
program, and a certified copy of the license or certificate
for
[
(4)
DADS acknowledges
[
(5)
DADS
[
(6)
The applicant must complete
DADS'
[
(7)
The applicant must complete
DADS'
[
(8)
An open-book or written examination
may
[
(9)
Upon successful completion of the two examinations,
DADS evaluates
[
(10)
DADS notifies
[
§95.109.Application Procedures.
(a)
An applicant under §95.107(a) of this title (relating
to Training Requirements; Nursing Graduates; Reciprocity) must submit to
DADS
[
(b)
DADS considers
[
(c)
Payment of fees must be by
cashier's
check or
money order made payable to the [
(1)
The fee schedule is as follows:
(A)
(No change.)
(B)
renewal fee - $15; [
(C)
late renewal fees for permit
renewals made after the permit expires:
(i)
$22.50 for an expired permit renewed from one
to 90 days after expiration;
(ii)
$30 for an expired permit renewed from 91 days
to one year after expiration;
(iii)
$30 for a former permit holder who meets the
criteria in §95.115(c)(5) of this title (relating to Permit Renewal);
and
(D)
[
(2)
(No change.)
(d)
All applicants must submit the following application materials.
(1)
The general statement enrollment form must contain:
(A) - (D)
(No change.)
(E)
a statement that the applicant understands that it is a
misdemeanor to falsify any information submitted to
DADS
[
(F)
(No change.)
(2)
(No change.)
(e)
DADS sends
[
(f)
DADS sends notice
[
§95.111.Examination.
(a)
DADS gives a
[
(1)
The
[
(2)
The applicant
is
[
(3)
(No change.)
(4)
Staff of a training program must notify
DADS
[
(5)
DADS determines
[
(6)
If DADS grades or reviews the
examination, DADS notifies the applicant of the results of the examination
not later than the 30th day after the date the applicant took the examination.
(7)
If a testing service grades
or reviews the examination:
(A)
DADS notifies the applicant of the results of
the examination not later than the 14th day after the date DADS receives the
results from the testing service; and
(B)
if notice of the examination results will be
delayed for longer than 90 days after the examination date, DADS notifies
the applicant of the reasons for the delay before the 90th day.
(8)
DADS may require a testing
service to notify an applicant of the results of the applicant's examination.
(9)
[
(A)
DADS may give an
[
(B)
A subsequent examination must be completed
by
[
(C)
DADS gives no further examinations
[
(D)
If requested in writing by
an applicant who fails the examination, DADS furnishes the applicant with
an analysis of the applicant's performance on the examination.
(b)
An applicant who is unable to attend the applicant's scheduled
examination due to unforeseen circumstances may be given an examination at
another time without payment of an additional fee upon the applicant's written
request to
DADS
[
(c)
An applicant[
§95.113.Determination of Eligibility.
(a)
DADS approves or denies each application for a permit
[
(b)
(No change.)
(c)
DADS denies an
[
(1)
(No change.)
(2)
failed to pass the examination prescribed by
DADS
[
(3)
failed to or refused to properly complete or submit any
application form or fee or deliberately presented false information on any
form or document required by
DADS
[
(4)
violated or conspired to violate the Health and Safety
Code, Chapter 242, Subchapter
N
[
(5)
(No change.)
(d)
If
,
after review,
DADS
[
§95.115.Permit Renewal.
(a)
General.
(1)
When issued, an initial permit is valid
for 12 months
from the date of issue
[
(2)
(No change.)
(3)
Each permit holder is responsible for renewing the permit
before the expiration date[
(4)
A permit holder must complete a seven-clock-hour continuing
education program approved by
DADS
[
(5)
DADS denies
[
(6)
A person whose permit has expired
may not engage in activities that require a permit until the permit has been
renewed.
(b)
Permit renewal procedures.
(1)
After receiving proof of the successful completion of the
seven-clock-hour continuing education requirement,
DADS sends
[
(2)
The renewal form
includes
[
(3)
DADS issues
[
(4)
A person who is otherwise eligible to renew a permit
may renew an unexpired permit by paying the required renewal fee to DADS before
the expiration date of the permit
[
(c)
Late renewal procedures.
(1)
A person whose permit has been expired for less than
one year
[
(A) - (B)
(No change.)
(C)
proof of having earned, during the expired period, seven
hours in an approved continuing education program for each year, or part of
a year, since the permit [
(D)
(No change.)
(2)
A person whose permit has been expired for 90 days
or less must pay DADS the late renewal fee stated in §95.109(c)(1)(C)(i)
of this title (relating to Permit Renewal)
[
(3)
A person whose permit has been
expired for more than 90 days but less than one year must pay DADS the late
renewal fee stated in §95.109(c)(1)(C)(ii) of this title.
(4)
A person whose permit has been
expired for one year or more may not renew the permit. The person may obtain
a new permit by complying with the requirements and procedures, including
the examination requirements, for obtaining an original permit.
(5)
A person who previously held
a permit in Texas may obtain a new permit without reexamination if the person
holds a permit from another state, practiced in that state for at least the
two years preceding the application date, and pays to DADS the late renewal
fee stated in §95.109(c)(1)(C)(iii) of this title.
(d)
(No change.)
§95.117.Changes.
(a)
A permit holder must notify DADS
[
(b)
DADS replaces
[
§95.119.Training Program Requirements.
(a)
Application. An educational institution accredited by the
Texas
Workforce Commission
[
(1)
All signatures on
DADS
[
(2)
The application must include:
(A) - (D)
(No change.)
(E)
an outline of the program content and curriculum if the
curriculum covers more than
DADS'
[
(3)
DADS
[
(4)
DADS sends notice
[
(5)
An applicant may request in writing a hearing on a proposed
denial within 10 days of receipt of the notice of the proposed denial. The
hearing
is conducted
[
(b)
Basic training program.
(1)
(No change.)
(2)
The program must consist of 140 hours
in the following
sequence
: 100 hours of classroom instruction and training, 20 hours
of return skills demonstration laboratory, 10 hours of clinical experience
including clinical observation and skills demonstration under the direct supervision
of a licensed nurse in a facility, and 10 more hours in the return skills
demonstration laboratory [
(A) - (B)
(No change.)
(3)
Each program must follow the curricula established by
DADS
[
(4)
At least seven days prior to the beginning of each program,
the coordinator must notify
DADS
[
(5)
A change in any information presented by the program in
an approved application including, but not limited to, location, instructorship,
and content must be approved by
DADS
[
(6)
The program instructors of the classroom hours must be
a registered nurse and registered pharmacist.
(A)
The nurse instructor must have a minimum of two years of
experience in caring for
individuals
[
(B)
(No change.)
(7) - (8)
(No change.)
(9)
Each program must inform
DADS on the DADS class roster
form
[
(c)
Continuing education training program.
(1)
(No change.)
(2)
The instructors must meet the requirements in
subsection
(b)(6) of this section
[
(3)
Each program must follow the curricula established by
DADS
[
(4)
Within 15 days after completion of the course, each
[
§95.121.Permitting of Persons with Criminal Backgrounds.
DADS
[
(1)
In considering whether a criminal conviction directly relates
to the occupation of a medication aide,
DADS considers
[
(A) - (C)
(No change.)
(D)
the relationship of the crime to the ability, capacity,
or fitness required to perform the duties and discharge the responsibilities
of a medication aide. In determining the present fitness of a person,
DADS considers
[
(2)
DADS gives
[
(A)
(No change.)
(B)
that the person, after exhausting administrative appeals,
may file an action in a district court of Travis County for review of the
evidence presented to
DADS
[
(C)
that the person must begin the judicial review by filing
a petition with the court within 30 days after
DADS'
[
[
§95.123.Violations, Complaints, and Disciplinary Actions.
(a)
Filing of complaints. Any person may complain to
DADS
[
(1)
Persons who want to file a complaint against a permit holder,
training
program, or another person, must notify
DADS by calling
1-800-458-9858 or by
[
[
(2)
[
(b)
Investigation of complaints. If
DADS'
[
(1)
the complaint does not come within
DADS'
[
(2)
there are insufficient grounds to support the complaint,
DADS dismisses
[
(3)
there are sufficient grounds to support the complaint,
DADS
[
(c)
Disciplinary actions.
DADS revokes, suspends, or refuses
to renew a permit or reprimands a permit holder for a violation of Health
and Safety Code, Chapter 242, Subchapter N, or this chapter. In addition,
DADS may suspend a permit in an emergency or rescind training program approval
[
(1)
DADS may place on probation
a person whose permit is suspended. DADS may require the person on probation:
(A)
to report regularly to DADS on matters that
are the basis of the probation;
(B)
to limit practice to the areas prescribed by
DADS; or
(C)
to continue or pursue professional education
until the person attains a degree of skill satisfactory to DADS in those areas
that are the basis of the probation.
(2)
[
(3)
[
(4)
[
(5)
[
(d)
Suspension, revocation, or nonrenewal. If
DADS
[
(1)
during the time of suspension, the suspended permit holder
must return his permit to
DADS
[
(2)
if a suspension overlaps a permit renewal date, the suspended
permit holder may comply with the renewal procedures in §95.115 of this
title (relating to Permit Renewal); however,
DADS does
[
(3)
if
DADS
[
(4)
if a permit is revoked or not renewed
[
§95.125.Requirements for Correctional Institutions.
(a) - (b)
(No change.)
(c)
Allowable and prohibited practices of a permit holder.
(1)
(No change.)
(2)
Permit holders must not:
(A) - (H)
(No change.)
(I)
violate any provision of the Health and Safety Code, Chapter
242, Subchapter
N
[
(J) - (L)
(No change.)
(d)
Application. An employee of a correctional institution
or an employee of a medical services contractor for a correctional institution
must submit an official application form to
DADS
[
(e)
Examination procedures.
DADS gives a
[
(f)
Determination of eligibility.
DADS determines
[
(g) - (j)
(No change.)
§95.127.Application Processing.
(a)
Time periods.
DADS complies
[
(1) - (2)
(No change.)
(b)
Reimbursement of fees.
(1)
In the event an application is not processed in the time
periods stated in subsection (a) of this section, the applicant has the right
to request reimbursement of all fees paid in that particular application process.
Application for reimbursement must be made to the program administrator for
DADS'
[
(2)
Good cause for exceeding the time period
exists
[
(c)
Appeal. If a request for reimbursement under subsection
(b) of this section is denied by the program administrator, the applicant
may appeal in writing to
the Texas Health and Human Services Commission's
[
[
§95.128.Home Health Medication Aides.
(a)
General.
(1)
A person may not administer medication to a client unless
the person:
(A) - (C)
(No change.)
(D)
administers noninjectable medication under circumstances
authorized by the memorandum of understanding between the Board of Nurse Examiners
and
DADS
[
(2)
(No change.)
(3)
Exemptions
[
(A)
A person may administer medication to a client of an agency
without the license or permit as required in paragraph (1) of this subsection
if the person is:
(i)
(No change.)
(ii)
a student enrolled in an accredited school of nursing
or program for the education of
RNs
[
(iii)
a graduate vocational nurse holding a temporary permit
issued by the
BNE
[
(iv)
(No change.)
(v)
a trainee in a medication aide training program approved
by
DADS
[
(B) - (C)
(No change.)
(b)
Required actions.
(1) - (2)
(No change.)
(3)
The RN must be knowledgeable
of
[
(4)
A permit holder must:
(A) - (B)
(No change.)
(C)
comply with
DADS
[
(D)
comply with this section and
§97.701
[
(5)
(No change.)
(c) - (d)
(No change.)
(e)
Applicant qualifications. Each applicant for a permit issued
under
Health and Safety Code, Chapter 142, Subchapter B
[
(1) - (4)
(No change.)
(5)
must have satisfactorily completed a home health aide training
and competency evaluation program or a competency evaluation program under
§97.701 of this title
[
(f)
Nursing graduates. A person who is a graduate of an accredited
school of nursing and who does not hold a license to practice professional
or vocational nursing meets the training requirements for issuance of a permit
under this section [
(1)
The applicant must submit
a DADS
[
(2) - (3)
(No change.)
(4)
DADS
[
(5)
The applicant must complete the open book examination and
return it
to DADS by the date given in the examination notice
[
(6)
The applicant must complete
DADS'
[
(7)
(No change.)
(8)
Upon successful completion of the two examinations,
DADS
[
(9)
DADS
[
(g)
Nursing students. A person who is attending or has attended
an accredited school of nursing and who does not hold a license to practice
professional or vocational nursing meets the training requirements for issuance
of a permit under this section if the person:
(1)
(No change.)
(2)
successfully completed courses at the nursing school that
cover
DADS'
[
(3)
submits a statement that is signed by the nursing school's
administrator or other authorized individual and certifies that the person
completed the courses specified under paragraph (2) of this subsection. The
administrator is responsible for determining that the courses
that
[
(4)
(No change.)
(h)
Reciprocity. A person who holds a valid license, registration,
certificate, or permit as a home health medication aide issued by another
state whose minimum standards or requirements are substantially equivalent
to or exceed the requirements of this section in effect at the time of application
may request a waiver of the training program requirement
as follows:
[
(1)
The
applicant
[
(2) - (3)
(No change.)
(4)
DADS
[
(5)
DADS
[
(6)
The applicant must complete
DADS'
[
(7)
The applicant must complete
DADS'
[
(8)
(No change.)
(9)
Upon successful completion of the two examinations,
DADS
[
(10)
DADS
[
(i)
Application by trainees. An applicant under subsection
(e) of this section must submit to
DADS
[
(1)
DADS considers
[
(2)
The general statement enrollment form must contain the
following application material that is required of all applicants:
(A) - (D)
(No change.)
(E)
a statement that the applicant understands that it is a
misdemeanor to falsify any information submitted to
DADS
[
(F)
(No change.)
(3)
(No change.)
(4)
DADS
[
(5)
DADS sends notice
[
(j)
Examination.
DADS
[
(1) - (2)
(No change.)
(3)
A training program must notify
DADS
[
(4)
DADS
[
(5)
DADS
[
(A)
DADS may give an
[
(B)
A subsequent examination must be completed
by the
date given on
[
(C)
(No change.)
(6)
An applicant who is unable to attend the applicant's scheduled
examination due to unforeseen circumstances may be given an examination at
another time without payment of an additional fee upon the applicant's written
request to
DADS
[
(7)
(No change.)
(k)
Determination of eligibility.
DADS
[
(1)
DADS denies an
[
(A)
(No change.)
(B)
failed to pass the examination prescribed by
DADS
[
(C)
failed to or refused to properly complete or submit any
application form, endorsement, or fee, or deliberately presented false information
on any form or document required by
DADS
[
(D)
violated or conspired to violate the
Health and Safety
Code, Chapter 142, Subchapter B,
[
(E)
(No change.)
(2)
If, after review,
DADS
[
(l)
Permit renewal. Home health medication aides must comply
with the following permit renewal requirements.
(1) - (3)
(No change.)
(4)
Each permit holder is responsible for renewing the permit
before the expiration date. Failure to receive notification from
DADS
[
(5)
A permit holder must complete a seven clock-hour continuing
education program approved by
DADS
[
(6)
DADS
[
(7)
Home health medication aide permit renewal procedures are
as follows.
(A)
At least 30 calendar days before the expiration date of
a permit,
DADS
[
(B)
(No change.)
(C)
DADS
[
(D)
DADS does
[
(E)
DADS does
[
(F)
If a permit holder fails to timely renew his or her permit
because the permit holder is or was on active duty with the armed forces of
the United States of America serving outside the State of Texas, the permit
holder may renew the permit pursuant to this
subparagraph
[
(i) - (ii)
(No change.)
(iii)
A copy of the official orders or other official military
documentation showing that the permit holder is or was on active military
duty serving outside the State of Texas
must
[
(iv)
A copy of the power of attorney from the permit holder
must be filed with
DADS
[
(v)
A permit holder renewing under this
subparagraph
[
(vi)
(No change.)
(vii)
A permit holder renewing under this
subparagraph
[
(8)
A person whose permit has expired for not more than two
years may renew the permit by submitting to
DADS
[
(A) - (D)
(No change.)
(9) - (10)
(No change.)
(m)
Changes.
(1)
A permit holder must notify DADS
[
(2)
DADS
[
(n)
Fees.
(1) - (2)
(No change.)
(3)
An applicant or permit holder must pay the required
fee by cashier's check or money order made payable to the Department of Aging
and Disability Services. All fees are nonrefundable, except as provided by
Government Code, Chapter 2005
[
[
(o)
Training program requirements.
(1)
An educational institution accredited by the Texas
Workforce Commission
[
(A)
All signatures on
DADS
[
(B)
The application includes:
(i) - (iv)
(No change.)
(v)
an outline of the program content and curriculum if the
curriculum covers more than
DADS'
[
(C)
DADS
[
(D)
DADS sends notice
[
(E)
(No change.)
(2)
(No change.)
(3)
The program consists of 140 hours
in the following
order
: 100 hours of classroom instruction and training, 20 hours of
return skills demonstration laboratory, ten hours of clinical experience including
clinical observation and skills demonstration under the supervision of a RN
in an agency, and ten more hours in the return skills demonstration laboratory
[
(A) - (B)
(No change.)
(C)
Each program must follow the curricula established by
DADS
[
(4)
At least seven calendar days prior to the commencement
of each program, the coordinator must notify
DADS
[
(5)
A change in any information presented by the program in
an approved application including, but not limited to, location, instructorship,
and content must be approved by
DADS
[
(6) - (8)
(No change.)
(9)
Within 15 calendar days after completion of the course,
each
[
(p)
Continuing education. The continuing education training
program is as follows.
(1) - (2)
(No change.)
(3)
Each program must follow the curricula established by
DADS
[
(4)
Within 15 days after completion of the course, each
[
(q)
Processing procedures.
DADS
[
(1) - (3)
(No change.)
(4)
Good cause for exceeding the time period
exists
[
(5)
If a request for reimbursement under paragraph (3) of this
subsection is denied by the director of the Home Health Medication Aide Permit
Program, the applicant may appeal to the commissioner of
DADS
[
[
(r)
Denial, suspension, or revocation.
(1)
DADS
[
(2)
DADS
[
(3)
DADS
[
(4)
If
DADS
[
(A)
The permit holder or home health medication aide program
must request a hearing within 15 calendar days of receipt of the notice. Receipt
of notice is presumed to occur on the tenth calendar day after the notice
is mailed to the last address known to
DADS
[
(B)
The request must be in writing and submitted to the [
(C)
(No change.)
(5)
DADS
[
(6)
All hearings
are
[
(7)
(No change.)
(8)
If
DADS
[
(A)
During the time of suspension, the suspended permit holder
must return his or her permit to
DADS
[
(B)
If a suspension overlaps a renewal date, the suspended
permit holder may comply with the renewal procedures in this chapter; however,
DADS does
[
(9)
If
DADS
[
(A)
DADS
[
(B)
When a permit is revoked or not renewed
[
This agency hereby certifies that the proposal
has been reviewed by legal counsel and found to be within the agency's legal
authority to adopt.
Filed with the Office of
the Secretary of State on April 4, 2005.
TRD-200501410
Phoebe Knauer
General Counsel
Department of Aging and Disability Services
Earliest possible date of adoption: May 15, 2005
For further information, please call: (512) 438-3734
Chapter 802.
TEXAS WORKFORCE COMMISSION LOCAL WORKFORCE DEVELOPMENT BOARD ADVISORY COMMITTEE
The Texas Workforce Commission (Commission) proposes new Chapter 802,
relating to the Texas Workforce Commission Local Workforce Development Board
Advisory Committee (TWC Advisory Committee), comprising the following subchapters:
Subchapter A. General Provisions
Subchapter B. Requirements for TWC Advisory Committee Members
Subchapter C. Requirements for TWC Advisory Committee Meetings
Subchapter D. Reporting to the Commission
Subchapter E. Agency Evaluation of the TWC Advisory Committee and Report
to the Legislative Budget Board
PART I. PURPOSE AND BACKGROUND
PART II. EXPLANATION OF INDIVIDUAL PROVISIONS
PART III. IMPACT STATEMENTS
PART IV. COORDINATION ACTIVITIES
PART V. PROPOSED RULES
PART I. PURPOSE AND BACKGROUND
Purpose
Senate Bill 280 (SB 280), enacted by the 78th Texas Legislature, Regular
Session, (2003), added §302.013 to the Texas Labor Code. This new provision
requires the creation of a Local Workforce Development Board (Board) advisory
committee at the Texas Workforce Commission to "advise the commission and
commission staff regarding the programs, policies, and rules of the commission
that affect the operations of local workforce development boards and the local
workforce delivery system."
Background
Texas Government Code, Chapter 2110 governs state agency advisory committees
that are either created by state or federal law or established by a state
agency pursuant to state or federal law. Chapter 2110 requires a state agency
that establishes an advisory committee to develop rules that state the purpose
and tasks of the advisory committee and describe the manner in which the advisory
committee will report to the agency. Moreover, it permits the agency to designate
the date on which the advisory committee will automatically be abolished unless
the agency by rule establishes a different date.
Additionally, Chapter 2110 establishes minimum requirements for state agency
advisory committees regarding the composition of the advisory committee, the
selection of a presiding officer, the reimbursement of members' expenses,
the agency evaluation of the advisory committee's cost and effectiveness,
and the state agency report to the Legislative Budget Board regarding the
effectiveness of the advisory committee.
The Commission proposes adoption of a new Chapter 802 to its rules to incorporate
the requirements of Texas Labor Code, §302.013 and Texas Government Code,
Chapter 2110.
PART II. EXPLANATION OF INDIVIDUAL PROVISIONS
SUBCHAPTER A. GENERAL PROVISIONS
§802.1. Requirements for the Texas Workforce Commission Local Workforce
Development Board Advisory Committee
Proposed §802.1 describes the statutory authority for the establishment
of the TWC Advisory Committee. The TWC Advisory Committee shall be governed
by Chapter 802 and is established under Texas Labor Code, §302.013 and
is subject to Texas Government Code, Chapter 2110.
§802.2. Purpose and Tasks
The Commission proposes in §802.2(a) that the purpose of the TWC Advisory
Committee will be to serve as the Commission's primary point of contact for
Board chairs, Board members, and Board executive directors for the discussion
of policy issues that affect the operations of Boards and the local workforce
delivery system that may serve as a basis for rulemaking and policy development
by the Commission.
Even though the TWC Advisory Committee will be the primary entity for discussion
of policy affecting Board operations and the workforce delivery system, the
Commission will continue to welcome and encourage input from Board chairs,
Board members, Board executive directors, and the public.
Texas Government Code, §2110.005(1) requires state agencies to provide
by rule the purpose and tasks of an advisory committee. The Commission proposes
that the required tasks of the TWC Advisory Committee mirror the tasks stipulated
in Texas Labor Code, §302.013(e)(3). Therefore, §802.2(b) states
that the TWC Advisory Committee shall meet at least quarterly; report to the
Commission at least annually; and advise the Commission and Commission staff
regarding the programs, policies, and rules of the Commission that affect
the operations of Boards and the local workforce delivery system.
Further, the Commission proposes in §802.2(c) the tasks that the TWC
Advisory Committee may perform, which include providing a statewide perspective
of the workforce system to the Commission; advising the Commission on policy
or rule concept papers; recommending to the Commission items for improving
the operations of the local workforce delivery system; and requesting information
from the Commission regarding existing rules, policies, or other topics the
TWC Advisory Committee wants to study.
§802.3. Duration of the TWC Advisory Committee
Texas Government Code, §2110.008(a) provides that a state agency may
designate the date on which its advisory committee will automatically be abolished.
The advisory committee may continue in existence after the abolishment date
if the state agency amends its rule to establish a different date. For advisory
committees established by law, the date of creation is the effective date
of the law. In the case of the TWC Advisory Committee, the effective date
of the law (SB 280) was September 1, 2003. Therefore, unless the Commission
establishes a different date, the automatic abolishment date of the TWC Advisory
Committee is September 1, 2007.
The Commission proposes in §802.3 that the TWC Advisory Committee
be abolished on September 1, 2007, unless the Commission by rule determines
a different abolishment date.
§802.4. Agency Contact
To facilitate effective and efficient communication, the Commission proposes
to designate in §802.4 the Agency's executive director as the single
point of contact for the TWC Advisory Committee.
SUBCHAPTER B. REQUIREMENTS FOR TWC ADVISORY COMMITTEE MEMBERS
§802.11. Appointment and Composition
Texas Labor Code, §302.013(b) provides that the executive officers
of "the organization composed of a member of and the staff director of each
local workforce development board" appoint the TWC Advisory Committee members.
The statute does not specifically identify the organization whose executive
officers are required, pursuant to §302.013(b), to appoint the TWC Advisory
Committee members.
The Commission reviewed the legislative history of SB 280, including legislative
bill analyses and committee meeting hearings and notes. No version of the
bill specified the name of the organization. However, every version of the
bill analysis-from the introduced version to the enrolled version-stated that
the bill "requires the executive committee of the Workforce Leadership of
Texas (WLT) to appoint the committee members, consisting of nine representatives
from WLT."
Additionally, the Commission reviewed the testimony at the April 9, 2003,
Senate Government Organization Committee hearing on SB 280. At the hearing,
a member of WLT (now named the Texas Association of Workforce Boards or TAWB)
testified that it is in a position to appoint the members of the TWC Advisory
Committee. Therefore, the Commission proposes that §802.11(a) of this
subchapter specifically designate the Executive Committee of TAWB, or its
successor organization, as the entity to appoint TWC Advisory Committee members.
Section 802.11(a) further requires that the Executive Committee of TAWB, or
its successor organization, provide due notice of the meeting at which appointments
to the TWC Advisory Committee will be made to the Agency executive director
in time for the Agency to provide a seven-day public notice of the meeting.
Texas Labor Code, §302.013 requires that the TWC Advisory Committee
be composed of six Board members and three Board executive directors. The
Commission proposes to mirror this requirement in §802.11(b). To align
with the principle in Texas Government Code, §2308.256(a) that Boards
shall have a majority of their members represent the private sector, the Commission
proposes a requirement in §802.11(b) that the six Board members be private
sector employers.
Further, Texas Labor Code, §302.013(b) provides that members of the
TWC Advisory Committee shall represent different geographic areas of the state.
The Commission proposes to mirror this requirement in §802.11(c).
The Commission also proposes §802.11(d) to prohibit a member of the
TAWB Executive Committee, or its successor organization, from serving as a
member of the TWC Advisory Committee. Texas Labor Code, §302.013(b) provides
that the organization representing Boards appoint the TWC Advisory Committee.
The statute reflects the premise that the TWC Advisory Committee should present
a variety of ideas and membership. Consequently, the Commission finds that
those members of the Executive Committee of TAWB appointing the TWC Advisory
Committee should not also serve on the TWC Advisory Committee. Drawing from
differing geographic regions and different TAWB membership for the TWC Advisory
Committee offers the best opportunity for diverse voices and ideas to reach
the Commission for consideration. Having greater a number of participants
from the Boards offering recommendations is in the best interest of the workforce
system as a whole. It is the Commission's desire that the TWC Advisory Committee
will bring consensus recommendations and innovative ideas for improvements
to the workforce system. One way to achieve that goal is to have a variety
of members presenting information to the Commission.
The Commission also takes notice of a longstanding common-law doctrine
generally prohibiting public self-appointment (
Ehlinger
v. Clark,
8 S.W.2d 666, 674 (Tex. 1928)). While this doctrine is not
directly applicable, the Commission finds its premise useful. As generally
stated by the Texas Supreme Court, this doctrine holds that a member of a
body making an appointment should not also serve as a member of the appointed
body (Tex. Att'y Gen. Op. LO-93-070 at 3 (1993)). Because the TAWB Executive
Committee has the power of appointment, the Commission believes that members
of the TAWB Executive Committee should not also appoint themselves to the
TWC Advisory Committee.
§802.12. Vacancies
In §802.12(a), the Commission proposes that if a vacancy occurs, the
TAWB Executive Committee, or its successor organization, shall have 90 days
following the date on which the vacancy occurred to appoint a person to serve
the unexpired portion of that term. Section 802.12(a) further requires that
the TAWB Executive Committee, or its successor organization, provide due notice
of meetings at which vacancies on the TWC Advisory Committee will filled to
the Agency executive director in time for the Agency to provide a seven-day
public notice of the meeting.
Additionally, proposed §802.12(b) states that a vacancy shall occur
if, during the member's term, the TWC Advisory Committee member is no longer
a Board member of or an executive director for the Board represented when
the person was initially appointed to the TWC Advisory Committee. The Commission
proposes this provision in order to maintain the geographical representation
as required by Texas Labor Code, §302.13(b) and provided in proposed §802.11(c).
For example, the geographical representation of the TWC Advisory Committee
membership could change should an executive director of a Board located in
one area of the state be appointed to the TWC Advisory Committee and during
the member's term resigns as that Board's executive director to become the
executive director of a Board in a different area of the state. In order to
avoid this situation, proposed §802.12(b) would require the executive
director to resign from the TWC Advisory Committee and the TAWB Executive
Committee would have 90 days to fill the vacancy. When appointing new members
to fill vacancies, the TAWB Executive Committee must adhere to the geographical
requirements in §802.11(c).
§802.13. Terms of Office
The Commission proposes in §802.13(a) that the term of a TWC Advisory
Committee member shall be two years. Because, it is important to have experienced
TWC Advisory Committee members as well as to allow for new perspective through
rotation of membership, §802.13(b) provides that a member may serve multiple
terms, but shall serve no more than two consecutive terms. The ability to
have TWC Advisory members serve multiple terms allows for experienced members
to continue to participate on the TWC Advisory Committee. However, the provision
also requires a break in membership after two consecutive terms, to afford
new and fresh perspectives on the TWC Advisory Committee.
The Commission proposes that TWC Advisory Committee members serve staggered
terms. It is important that the terms of office allow for new TWC Advisory
Committee members to serve along with experienced members. It is also important
not to have all terms expire at the same time, which would require the entire
TWC Advisory Committee to reconstitute every two years. Section 802.13(c)
provides that in order to establish the staggered terms, TAWB shall initially
appoint three Board members and one executive director for a one-year term
and three Board members and two executive directors for a two-year term. Following
the expiration of the initial four members' one-year term, TAWB or its successor
organization shall appoint four members to two-year terms. Subsequent appointments
for all members shall be for two-year terms. In this manner, TWC Advisory
Committee members' terms will expire every year. Four terms will expire in
one year, then five terms will expire the next year. The four members appointed
for a one-year term will fulfill a one-time, one-year appointment that will
occur during the first year the TWC Advisory Committee is in existence.
§802.14. Selection and Role of a Presiding Officer
Texas Government Code, §2110.003 states that an advisory committee
shall select from among its members a presiding officer to preside over the
advisory committee. The Commission proposes to mirror this language in §802.14,
which states that the TWC Advisory Committee shall elect a presiding officer
from among its members. The Commission proposes that the presiding officer
be a Board member in order to emphasize the importance of the private sector
perspective in the work of the TWC Advisory Committee. The Commission also
proposes that the presiding officer be designated to report to the Commission,
as required in §2110.003(b) of the Texas Government Code.
§802.15. Legislative Activity
The provisions of Texas Government Code, Chapter 556 regarding the use
of state appropriations for political activities apply to officers and employees
of Boards. By extension, the TWC Advisory Committee members are also covered
by Chapter 556. Therefore, the Commission proposes to include in §802.15(a)
that TWC Advisory Committee members are subject to the lobbying provisions
of Texas Government Code, Chapter 556. Individual members are not restricted
from representing themselves, their Boards, their businesses, or any other
entities to the Texas Legislature, subject to state law restrictions on lobbying.
SUBCHAPTER C. REQUIREMENTS FOR TWC ADVISORY COMMITTEE MEETINGS
§802.21. Open Meetings
The TWC Advisory Committee is not a "governmental body" as defined in the
Open Meetings Act in Texas Government Code, Chapter 551. However, research
on various Texas state agencies' advisory committees shows that several state
agencies, such as the Texas Department of State Health Services, require their
advisory committees to conduct meetings in accordance with the Texas Open
Meetings Act.
Therefore, in order to promote public participation, the Commission proposes
in §802.21(a) that meetings of the TWC Advisory Committee be conducted
in accordance with the Open Meetings Act requirements in Texas Government
Code, Chapter 551. Subsection 802.21(b) proposes that the Agency's executive
director, as the central point of contact for the TWC Advisory Committee,
shall be responsible for posting the meetings, in accordance with §551.044
of the Texas Government Code, which requires a seven-day posting for meetings
with statewide jurisdiction. The Commission anticipates and expects that the
TWC Advisory Committee will notify the Agency's executive director about its
meetings and agendas in a timely manner so that statewide Open Meetings Act
requirements are met. Subsection 802.21(c) proposes that the Agency's executive
director also be responsible for preparing and keeping the meeting minutes,
as set forth in Chapter 551, Subchapter B of the Texas Government Code. This
subchapter requires that minutes or a tape recording of each open meeting
be kept and available to the public upon request. To implement this requirement,
the Agency will record each meeting and transcribe the minutes of the TWC
Advisory Committee to serve as the approved minutes, and will maintain a file
of all meeting minutes.
Additionally, the Commission proposes in §802.21(d) that a quorum
shall be present for TWC Advisory Committee meetings. In keeping with the
requirements of the Open Meetings Act in the Texas Government Code, §551.001(6),
a quorum is defined as six members of the TWC Advisory Committee. In order
to conduct business, a quorum must be present. In §802.21(e), the Commission
proposes that the approval of five members of the TWC Advisory Committee be
required on any advice, recommendations, or reports. The Commission proposes
these two provisions in order to emphasize the importance of soliciting input
and achieving consensus from a majority of the members of the TWC Advisory
Committee.
§802.22. Open Records
The TWC Advisory Committee is not a "governmental body" for purposes of
the Open Meetings Act; however, the TWC Advisory Committee does meet the definition
of a governmental body in §552.003 of the Public Information Act. Therefore,
the Commission proposes in §802.22(a) that TWC Advisory Committee records
be subject to the Public Information Act, Texas Government Code, Chapter 552.
In order to implement the requirements of the Public Information Act, the
Commission proposes in §802.22(b) that the Agency's executive director
be responsible for responding to requests for information filed under the
Public Information Act, Texas Government Code, Chapter 552.
SUBCHAPTER D. REPORTING TO THE COMMISSION
§802.31. Annual Report
Texas Government Code, §2110.005(2) requires state agencies with advisory
committees to adopt rules that "describe the manner in which the committee
will report to the agency." Texas Labor Code, §302.013(e)(2) states that
the TWC Advisory Committee shall "report to the commission at least annually."
In §802.31(a), the Commission proposes that the presiding officer
of the TWC Advisory Committee submit an annual report to the Commission on
or before July 1 of each year in order for the Agency to complete its annual
evaluation of the TWC Advisory Committee, as required by Texas Government
Code, §2110.006, by the end of a fiscal year. The Commission proposes
in §802.31(b) that the annual report shall delineate the TWC Advisory
Committee's activities over the previous 12 months, specifically from June
1 of the previous year to May 31, and include, at a minimum:
(1) a description of how the TWC Advisory Committee has accomplished its
purpose and tasks;
(2) a brief description of advice, recommendations, and reports made by
the TWC Advisory Committee;
(3) the costs related to the TWC Advisory Committee's existence and the
source of funds used to support its activities;
(4) a list of the meeting dates, including subcommittee meetings;
(5) the attendance records of its members; and
(6) the TWC Advisory Committee bylaws.
SUBCHAPTER E. AGENCY EVALUATION OF THE TWC ADVISORY COMMITTEE AND REPORT
TO THE LEGISLATIVE BUDGET BOARD
§802.41. Agency Annual Evaluation
Texas Government Code, §2110.006 provides that a state agency that
has established an advisory committee shall evaluate annually the advisory
committee's work and usefulness, and the costs related to the advisory committee's
existence, including the cost of agency staff time spent in support of the
committee's activities. The Commission proposes to mirror this language in §802.41.
§802.42. Commission Report to the Legislative Budget Board
Texas Government Code, §2110.007 requires that the Commission report
to the Legislative Budget Board the information developed in the evaluation
required by §2110.006 and file the report biennially in connection with
the Commission's request for appropriations. The Commission proposes language
in §802.42 to fulfill this requirement.
PART III. IMPACT STATEMENTS
Randy Townsend, Chief Financial Officer of the Texas Workforce Commission,
has determined that for each year of the first five years the rules will be
in effect, the following statements will apply:
There are no additional estimated costs to the state and to local governments
expected as a result of enforcing or administering the rules.
There are no estimated reductions in costs to the state and to local governments
as a result of enforcing or administering the rules.
There are no estimated losses or increases in revenue to the state or to
local governments as a result of enforcing or administering the rules.
There are no foreseeable implications relating to costs or revenue of the
state or local governments as a result of enforcing or administering the rules.
Mr. Townsend has also determined that there is no anticipated adverse impact
on small businesses or microbusinesses as a result of enforcing or administering
the rules because the proposed rules do not add new regulatory requirements
or change existing regulatory requirements on small businesses or microbusinesses.
Mark Hughes, Director of Labor Market Information of the Texas Workforce
Commission, has determined that there is no significant negative impact on
employment conditions in this state as a result of the proposed rules. Mr.
Hughes does not expect any significant impact on overall employment conditions
in the state as a result of the proposed rules.
Luis M. Macias, Director of Workforce Development Division of the Texas
Workforce Commission, has determined that for each year of the first five
years the rules are in effect, the public benefit anticipated as a result
of enforcing the proposed rules will be to facilitate Board input and provide
a statewide perspective on policies of the Texas Workforce Commission that
affect the operations of Boards and the local workforce development system.
Mr. Macias has also determined that for each year of the first five years
the rules are in effect, there will be no economic cost to persons required
to comply with these rules as a result of enforcing the proposed rules.
PART IV. COORDINATION ACTIVITIES
In the development of these rules for publication and public comment, the
Commission sought the involvement of Texas' twenty-eight Boards and the Texas
Association of Workforce Boards. The Commission provided a policy concept
paper to the Boards for consideration and review pursuant to Texas Labor Code, §302.064
and the Commission's Resolution Regarding Board Coordination in Policy Development,
which was adopted on September 24, 2002. During the development of these proposed
rules, the Commission considered the information gathered in order to develop
rules that provide clear and concise direction to the parties involved.
Comments on the proposed rules may be submitted to TWC Policy Comments,
Policy and Development, 101 East 15th Street, Room 440T, Austin, Texas 78778;
fax 512-475-3577; or e-mailed to TWCPolicyComments@twc.state.tx.us. The Commission
must receive comments no later than 30 days from the date this proposal is
published in the
Texas Register
.
Subchapter A. GENERAL PROVISIONS
40 TAC §§802.1 - 802.4
These rules are proposed pursuant to Texas Labor Code, §301.0015
and §302.002(d), which provide the Commission with the authority to adopt
rules necessary to administer the Commission's policies in compliance with
Texas Government Code, Chapter 2001; Texas Labor Code, §302.013, which
provides specific authority regarding establishment of an advisory committee
to the Commission; and Texas Government Code, Chapter 2110, relating to state
agency advisory committees.
The proposed rules will affect Texas Labor Code, Title 4, particularly
Chapters 301 and 302, as well as Texas Labor Code, §302.013 and Texas
Government Code, Chapter 2110.
PART V. PROPOSED RULES
§802.1.Requirements for the Texas Workforce Commission Local Workforce Development Board Advisory Committee.
(a)
The Texas Workforce Commission Local Workforce Development
Board Advisory Committee (TWC Advisory Committee) shall be appointed pursuant
to and governed by this chapter.
(b)
The TWC Advisory Committee is established under Texas Labor
Code, §302.013 and is subject to Texas Government Code, Chapter 2110.
§802.2.Purpose and Tasks.
(a)
The purpose of the TWC Advisory Committee is to serve as
the Commission's primary point of contact for Local Workforce Development
Board (Board) chairs, Board members, and Board executive directors in the
discussion of policy issues affecting the operations of Boards and the local
workforce delivery system that may serve as a basis for rulemaking and policy
development by the Commission.
(b)
The TWC Advisory Committee shall:
(1)
meet at least quarterly;
(2)
report to the Commission at least annually; and
(3)
advise the Commission and Commission staff regarding the
programs, policies, and rules of the Commission that affect the operations
of Boards and the local workforce delivery system.
(c)
The TWC Advisory Committee may:
(1)
provide a statewide perspective of the workforce system;
(2)
advise the Commission on policy or rule concept papers
that affect the operations of Boards and the local workforce delivery system;
(3)
make recommendations to the Commission to improve the operations
of Boards and the local workforce delivery system; and
(4)
request information from the Commission regarding existing
rules or policies, or other topics the TWC Advisory Committee wants to study.
§802.3.Duration of the TWC Advisory Committee.
The TWC Advisory Committee shall be abolished on September 1, 2007,
unless the Commission by rule determines a different abolishment date.
§802.4.Agency Contact.
The Agency's executive director shall serve as the single point of
contact for the TWC Advisory Committee.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on March 30, 2005.
TRD-200501361
Donna Garrett
Deputy Director for Policy and Development
Texas Workforce Commission
Earliest possible date of adoption: May 15, 2005
For further information, please call: (512) 475-0829
40 TAC §§802.11 - 802.15
These rules are proposed pursuant to Texas Labor Code, §301.0015
and §302.002(d), which provide the Commission with the authority to adopt
rules necessary to administer the Commission's policies in compliance with
Texas Government Code, Chapter 2001; Texas Labor Code, §302.013, which
provides specific authority regarding establishment of an advisory committee
to the Commission; and Texas Government Code, Chapter 2110, relating to state
agency advisory committees.
The proposed rules will affect Texas Labor Code, Title 4, particularly
Chapters 301 and 302, as well as Texas Labor Code, §302.013 and Texas
Government Code, Chapter 2110.
§802.11.Appointment and Composition.
(a)
The executive committee of the Texas Association of Workforce
Boards (TAWB), or its successor organization, shall appoint members of the
TWC Advisory Committee in a meeting for which notice is given to the Agency's
executive director in time for a seven-day public meeting notification.
(b)
The TWC Advisory Committee shall be composed of:
(1)
six Board members who are private sector employers that
serve as members of the organization described in subsection (a) of this section;
and
(2)
three Board executive directors who serve as members of
the organization described in subsection (a) of this section.
(c)
The TWC Advisory Committee members shall represent different
geographic areas of the state.
(d)
A member of the executive committee of the organization
described in subsection (a) of this section shall not serve as a member of
the TWC Advisory Committee.
§802.12.Vacancies.
(a)
In 90 days or less following the date on which a vacancy
occurs, the executive committee of the organization, as described in §802.11(a)
of this subchapter, shall, in a meeting for which notice is given to the Agency's
executive director in time for a seven-day public meeting notification, appoint
a person to serve the unexpired portion of that member's term.
(b)
A vacancy shall occur if during the member's term, the
TWC Advisory Committee member is no longer a Board member of or an executive
director for the Board represented when the person was initially appointed
to the TWC Advisory Committee.
§802.13.Terms of Office.
(a)
Notwithstanding the provisions in subsection (c) of this
section, a term of a TWC Advisory Committee member shall be two years.
(b)
A member may serve multiple terms, but shall serve no more
than two consecutive terms.
(c)
TWC Advisory Committee members shall serve staggered terms.
In order to establish the staggered terms, the executive committee of the
organization, as described in §802.11(a) of this subchapter, shall initially
appoint three Board members and one executive director for a one-year term
and three Board members and two executive directors for a two-year term. Following
the expiration of the initial four members' one-year term, the organization
shall appoint four members to two-year terms. Subsequent appointments for
all members shall be for two-year terms.
§802.14.Selection and Role of a Presiding Officer.
The TWC Advisory Committee shall elect a presiding officer who is a
Board member and shall preside over the TWC Advisory Committee and report
to the Commission.
§802.15.Legislative Activity.
(a)
The TWC Advisory Committee and its members are subject
to the lobbying provisions in Texas Government Code, Chapter 556.
(b)
Individual TWC Advisory Committee members are not restricted
from representing themselves, their Boards, their businesses, or any other
entities to the Texas Legislature.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State on March 30, 2005.
TRD-200501362
Donna Garrett
Deputy Director for Policy and Development
Texas Workforce Commission
Earliest possible date of adoption: May 15, 2005
For further information, please call: (512) 475-0829
40 TAC §802.21, §802.22
These rules are proposed pursuant to Texas Labor Code, §301.0015
and §302.002(d), which provide the Commission with the authority to adopt
rules necessary to administer the Commission's policies in compliance with
Texas Government Code, Chapter 2001; Texas Labor Code, §302.013, which
provides specific authority regarding establishment of an advisory committee
to the Commission; and Texas Government Code, Chapter 2110, relating to state
agency advisory committees.
The proposed rules will affect Texas Labor Code, Title 4, particularly
Chapters 301 and 302, as well as Texas Labor Code, §302.013 and Texas
Government Code, Chapter 2110.
§802.21.Open Meetings.
(a)
TWC Advisory Committee meetings shall be conducted in accordance
with open meetings requirements pursuant to Texas Government Code, Chapter
551.
(b)
The responsibility for posting the meetings pursuant to
the open meetings requirements of Texas Government Code, §551.044, will
be carried out by the Agency's executive director.
(c)
The responsibility for preparing and keeping the minutes
pursuant to the open meetings requirements of Texas Government Code, Chapter
551, Subchapter B, will be carried out by the Agency's executive director.
(d)
Six members of the TWC Advisory Committee shall be present
to constitute a quorum for the purpose of conducting business.
(e)
Any advice, recommendations, or reports made by the TWC
Advisory Committee must be approved by five members of the TWC Advisory Committee.
§802.22.Open Records.
(a)
TWC Advisory Committee records are subject to the Public
Information Act, Texas Government Code, Chapter 552.
(b)
The responsibility for responding to requests for information
under the Public Information Act, Texas Government Code, Chapter 552, will
be carried out by the Agency's executive director.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State on March 30, 2005.
TRD-200501363
Donna Garrett
Deputy Director for Policy and Development
Texas Workforce Commission
Earliest possible date of adoption: May 15, 2005
For further information, please call: (512) 475-0829
Texas
] Department of
Aging and Disability Services (DADS)
[
Mental Health and Mental
Retardation or its successor
].
of this title (relating to Definitions)
],
a hospital of more than 16 beds that is primarily engaged in providing psychiatric
diagnosis, treatment, and care of individuals with mental diseases, including
medical care, nursing care, and related services.
As defined
in THSC, §531.002, an entity to which the Texas Mental Health and Mental
Retardation Board delegates its authority and responsibility within a specified
region for planning, policy development, coordination, and resource development
and allocation, and for supervising and ensuring the provision of mental retardation
services to persons in one or more local service areas.
]
40 TAC
] Chapter 108
of this title
(relating to Early Childhood Intervention Services).
department
].
annual
] resident review (PASARR) assessment to require
specialized services; and
§412.556(a)
] of this title (relating
to MRA's Responsibilities).
the Office of Long Term Services
and Supports, Texas
] Department of
Aging and Disability Services
(DADS) W-354, P.O. Box 149030, Austin, Texas 78714-9030, or by accessing the
DADS website at www.dads.state.tx.us
[
Mental Health and Mental
Retardation, P.O. Box 12668, Austin, Texas 78711 or by accessing the department's
website at www.mhmr.state.tx.us
].
§412.555(a)
] of
this title (relating to Assessing an Individual's Need for Service Coordination);
419
], Subchapter
N of this title (relating to Texas Home Living (TxHmL) Program).
§412.554
] of this title (relating to Eligibility); or
§401.464
] of this title (relating to Notification and Appeals Process).
Chapter 48.
COMMUNITY CARE FOR AGED AND DISABLED
Chapter 51.
WAIVER PROGRAM FOR MEDICALLY DEPENDENT CHILDREN
Chapter 51.
MEDICALLY DEPENDENT CHILDREN PROGRAM
Subchapter B. ELIGIBILITY, ENROLLMENT, AND SERVICES
2.
ENROLLMENT
3.
SERVICES
4.
APPEALS
Subchapter C. RESPONSIBILITIES OF THE INDIVIDUAL IN SECURING ADAPTIVE AIDS AND MINOR HOME MODIFICATIONS
2.
MINOR HOME MODIFICATIONS
Subchapter D. PROVIDER REQUIREMENTS
2.
SERVICE DELIVERY REQUIREMENTS FOR ALL PROVIDERS
3.
SERVICE DELIVERY REQUIREMENTS FOR RESPITE AND ADJUNCT SUPPORT SERVICES
4.
SERVICE DELIVERY REQUIREMENTS FOR HOST FAMILIES
5.
SERVICE DELIVERY REQUIREMENTS FOR CONSUMER DIRECTED SERVICES
6.
SERVICE DELIVERY REQUIREMENTS FOR TRANSITION ASSISTANCE SERVICES
7.
SERVICE DELIVERY REQUIREMENTS FOR ADAPTIVE AIDS
8.
SERVICE DELIVERY REQUIREMENTS FOR MINOR HOME MODIFICATIONS
Subchapter E. CLAIMS PAYMENT AND DOCUMENTATION
Chapter 95.
MEDICATION AIDES--PROGRAM REQUIREMENTS
F
], concerning the administration of medications to facility
residents
; and
must
] have the following meanings, unless the context
clearly indicates otherwise.
(2)
] Examination--A written competency
evaluation for medication aides administered by
DADS
[
the
Texas Department of Human Services (DHS)
].
(3)
] Facility--An institution licensed
under the Health and Safety Code, Chapter 242; a state school as defined in
the
Health and Safety Code, §531.002(17)
[
Texas Civil
Statutes, Article 5547-201, §1.02(16)
]; a correctional institution
as established under the jurisdiction of the Texas Department of Criminal
Justice;
an intermediate care facility for persons with mental retardation
operated by a community mental retardation center established under Health
and Safety Code, Chapter 534
[
a mental health and mental retardation
program that is operated under the jurisdiction of the Texas Department of
Mental Health and Mental Retardation (TDMHMR) and that meets the criteria
in §95.103(b) of this title (relating to Requirements for Administering
Medications)
];
or an assisted living facility
[
and a
personal care facility
] licensed under the Health and Safety Code, Chapter
247[
, that meets the criteria in §95.103(b) of this title (relating
to Requirements for Administering Medications)
].
(4)
] Licensed nurse--
A
[
An individual licensed as a
] licensed vocational nurse or a licensed
registered nurse.
(5)
] Licensed vocational nurse--A
person licensed by the BNE, or who holds a license from another state recognized
by the BNE, to practice vocational nursing in Texas
[
nurse who
is currently licensed by the Board of Vocational Nurse Examiners for the State
of Texas
].
(6)
] Medication aide--A person permitted
by
DADS
[
DHS
] to administer medications to facility
residents
or to persons served by home and community support services
agencies
.
(7)
] Misappropriation of resident
property--The deliberate misplacement, exploitation, or wrongful [
,
]
temporary or permanent use of a resident's belongings or money without the
resident's consent.
(8)
] Neglect--The failure to provide
goods and services necessary to avoid physical harm, mental anguish, or mental
illness.
(9)
] Non-licensed direct care staff--Employees
of facilities other than Medicare- skilled nursing facilities or Medicaid
nursing facilities who are primarily involved in the delivery of services
to assist with residents' activities of daily living
or
[
and/or
] active treatment programs.
(10)
] Nurse aide--An individual
who
[
certified to provide nursing or nursing-related services to
residents in a facility under the supervision of a licensed nurse. This individual
] has completed a nurse aide training and competency evaluation program
(NATCEP) approved by the state as meeting the requirements of the Code of
Federal Regulations (CFR), Chapter 42, §§483.151 - 483.154, or has
been determined competent as provided in 42 CFR, §483.150(a) and (b),
and is listed as certified on
DADS'
[
the
] nurse aide
registry [
of DHS
]. [
This definition does not include an individual
who is a licensed health professional, a registered dietitian, a non-licensed
direct staff person, or who volunteers such services without monetary compensation.
]
(11)
] Registered nurse (RN)--
A person licensed by the BNE, or who holds a license from another state recognized
by the BNE,
[
An individual currently licensed by the Texas Board
of Nurse Examiners
] to practice professional nursing
in Texas
.
(12)
] Registered pharmacist--An
individual currently licensed by the Texas Board of Pharmacy to practice pharmacy.
(13)
] Training program--A program
approved by
DADS
[
DHS
] to instruct individuals to act
as medication aides.
Texas Department of Human
Services (DHS)
] rules applicable to personnel used in a facility.
§242.154(f)
]:
mental health and mental retardation programs operated under
the jurisdiction of the Texas Department of Mental Health and Mental Retardation
(TDMHMR)
] must comply with subsection (b) of this section and §§95.105,
95.107, 95.109, 95.111, 95.113, 95.115, 95.117, 95.119, 95.121, and 95.123
of this title (relating to Allowable and Prohibited Practices of a Permit
Holder; Training Requirements, Nursing Graduates, Reciprocity; Application
Procedures; Examination; Determination of Eligibility; Permit Renewal; Changes;
Training Program Requirements; Permitting of Persons with Criminal Backgrounds;
and
Violations, Complaints, and Disciplinary Actions).
Other exemptions
].
Board of Vocational Nurse Examiners
];
DHS
] under this chapter who is administering
medications as part of the trainee's clinical experience.
F
], must complete a
training program unless the applicant meets the requirements of subsection
(c) or (d) of this section.
which
] cover
DADS'
[
the Texas Department
of Human Services' (DHS's)
] curriculum for a medication aide training
program;
DHS which
] is signed by the nursing school's administrator
or other authorized individual and certifies that the person completed the
courses specified in paragraph (2) of this subsection. The administrator is
responsible for determining that the courses he certifies cover
DADS'
[
DHS's
] curriculum. The statement must be submitted with
the person's application for a permit and permit application fee as provided
in §95.109 of this title (relating to Application Procedures); and
An
]
official application form [
must be submitted
] to
DADS
[
DHS by the graduate
]. The applicant must meet the requirements of subsection
(b)(1) - (4) of this section.
DHS must acknowledge
] receipt of the application by
sending
[
forwarding
to
] the applicant a copy of this chapter and
DADS'
[
DHS's
] open book examination.
within 45 days to DHS
].
DHS's
] written examination.
DADS denies the application of an
[
Any
] applicant failing to schedule and take the examination
by
the date given in
[
within 45 days of
] the examination notice
[
may have his application voided
].
must
] not be retaken if the applicant fails.
DHS must evaluate
] all application documents
submitted by the applicant.
DHS must notify
] the
applicant in writing of the examination results.
.
]
An
]
official application form [
must be submitted
] to
DADS
[
DHS by the applicant
]. The applicant must meet the requirements of subsection
(b)(1) - (4) of this section.
as set out
] in §95.109(c) of this
title [
(relating to Application Procedures)
].
by
] which the reciprocal permit is requested.
DHS must acknowledge
] receipt of the application by
sending
[
forwarding
to
] the applicant a copy of this chapter and
DADS'
[
DHS's
] open book examination.
DHS
] may contact the issuing
agency to verify the applicant's status with the agency.
DHS's
] open-book examination and return it
to DADS by the date given
in the examination notice
[
within 45 days to DHS
].
DHS's
] written examination. The site of the examination
is
[
will be
] determined by
DADS
[
DHS
].
DADS denies
the application of an
[
Any
] applicant failing to schedule
and take the examination
by the date given in
[
within 45 days
of
] the examination notice [
may have his application voided
].
must
] not be retaken if the applicant fails.
DHS must evaluate
] all application documents
submitted by the applicant.
DHS must notify
]
the applicant in writing of the examination results.
the Texas Department of Human Services (DHS)
], no later
than 30 days after enrollment in a training program,
an application,
including
all required information and documentation on
DADS
[
official DHS
] forms.
DHS will consider
]
an application under subsection (a) of this section as officially submitted
when
DADS receives
[
the applicant submits
] the permit
application and examination fee.
Texas
] Department of
Aging
and Disability
[
Human
] Services. All fees are nonrefundable,
except as provided by
Government Code, Chapter 2005
[
Texas
Civil Statutes, Article 6252-13(b)(1)
].
and
]
(C)
] permit replacement fee - $5.00.
DHS
]; and
DHS will send
] a notice
listing the additional materials required to an applicant who does not complete
the application [
in a timely manner
]. An application not completed
by the day of the medication aide final exam must be voided.
Notice
] of application
acceptance or ineligibility, disapproval, or deficiency [
must be
]
in accordance with §95.127 of this title (relating to Application Processing).
A
] written examination
[
must be given by the Texas Department of Human Services (DHS)
]
to each applicant at a site determined by
DADS
[
DHS
].
A final examination may not be given
to an applicant until the
] applicant
must meet
[
has
met
] the requirements of §95.107 of this title (relating to Training
Requirements; Nursing Graduates; Reciprocity) and §95.109 of this title
(relating to Application Procedures)
before taking the written examination
.
must be
] tested
on the subjects taught in the training program curricula and clinical experience.
The examination
covers
[
must cover
] an applicant's knowledge
of accurate and safe drug therapy
that will
[
as it is to
]
be administered to a facility's residents.
DHS
] at least four weeks prior to its requested examination date.
DHS must determine
]
the passing grade on the examination.
(6)
]
DADS notifies in writing
an
[
An
] applicant who fails the examination [
must be
notified in writing by DHS
].
An
] applicant under §95.107(a)
of this title
one
[
(relating to Training Requirements, Nursing
Graduates; Reciprocity) may be given a
] subsequent examination, without
additional payment of a fee, upon the applicant's written request to
DADS
[
DHS
].
within 45 days from
] the date
given in
[
of
] the
failure notification. The site of the examination
is
[
must
be
] determined by
DADS
[
DHS
].
Another
examination must not be permitted
] if the student fails the subsequent
examination, unless the student enrolls
in
and successfully completes
another training program.
DHS
]. The examination must be completed
within 45 days from the date of the originally scheduled examination. The
rescheduled examination must be at a site determined by
DADS
[
DHS
].
,
] whose application for a permit
must be denied under §95.113 of this title (relating to Determination
of Eligibility) [
,
] is ineligible to take the examination.
The Texas Department of Human Services (DHS) must receive and
approve or deny all applications
].
An
] application for
a permit [
must be denied
] if the person has:
DHS
], as set out in §95.111 of this chapter (relating
to Examination);
DHS
];
F
], or any provision
of this chapter; or
DHS
] determines that the application should not be approved,
DADS
gives
[
DHS must give
] the applicant written notice of the
reason for the proposed decision and of the opportunity for a formal hearing
in accordance with
§95.123(c)(3)
[
§95.123(e)
]
of this title (relating to Violations, Complaints, and Disciplinary Actions).
until the end of the calendar year (December
31st)
].
, the last day of December
]. Failure
to receive notification from
DADS
[
the Texas Department of
Human Services (DHS)
] prior to the expiration date of the permit
does
[
must
] not excuse
the permit holder's
failure
to file for timely renewal.
DHS
] prior to expiration
of the permit in order to renew the permit. Continuing education hours are
not required for the first renewal. After a permit is renewed for the first
time, the permit holder must
earn
[
begin earning
] approved
continuing education hours
to have the permit renewed again
.
DHS must deny
] renewal
of the permit of a permit holder who is in violation of Health and Safety
Code, Chapter 242, Subchapter
N
[
F
], or this chapter
at the time of application for renewal.
DHS will send
] to the permit holder, at the address listed in
DADS'
[
DHS's
] records, notice of the expiration date of the
permit and the amount of the renewal fee due and a renewal form
that
[
which
] the permit holder must complete and return with
the required renewal fee. If
DADS
[
DHS
] does not receive
proof of the successful completion of the continuing education requirement,
DADS sends
[
DHS will send
] the permit holder a reminder notice
about the required continuing education hours.
must include
] the preferred mailing address of the permit holder and information
on certain misdemeanor and felony convictions. It must be signed by the permit
holder.
DHS must issue
] a renewal
permit to a permit holder who has met all requirements for renewal.
A permit must not be renewed
if the permit holder does not complete the required seven-clock-hour continuing
education requirement. Successful completion must be determined by the student's
instructor. An individual who does not meet the continuing education requirement
must complete a new program, application, and examination in accordance with
the requirements of this chapter
].
two years
] may renew the permit by submitting to
DADS
[
DHS
]:
was last renewed or
] expired; and
A permit that is not
renewed during the two years after expiration may not be renewed
].
Notification
of changes must be reported to the Texas Department of Human Services (DHS)
] within 30 days after
changing his or her
[
a change
of
] address or name.
DHS must replace
]
a lost, damaged, or destroyed permit upon receipt of a completed duplicate
permit request form and permit replacement fee as set out in §95.109(c)
of this title (relating to Application Procedures).
Education Agency
] or Texas
Higher Education Coordinating Board
that
[
which
] desires
to offer a training program must file an application for approval on
a DADS
[
an official
] form. Programs sponsored by state agencies
for the training and preparation of their own employees are exempt from the
accreditation requirement. An approved institution may offer the training
program and a continuing education program.
official
]
forms and supporting documentation must be originals.
the Texas Department of
Human Services' (DHS's)
] established curricula.
DHS
] may conduct an inspection
of the classroom site.
Notice
] of approval
or proposed denial of the application [
must be given
] to the program
within 30 days of the receipt of a complete application. If
DADS proposes
to deny
the application [
is proposed to be denied
] due to
noncompliance with the requirements of Health and Safety Code, Chapter 242,
Subchapter
N
[
F
], or this chapter, the reasons for denial
are
[
must be
] given in the notice.
must be
] in accordance with
1 TAC §§357.481 - 357.490
[
DHS's formal hearing procedures
under §§79.1601 - 79.1614 of this title (relating to Formal Hearings)
] and [
the Administrative Procedures Act (APA), Title 10 of the
] Texas Government Code,
Chapter 2001
[
§§2001.051
et seq
]. If no request is made, the applicant
has
[
is deemed to have
] waived the opportunity for a hearing, and the proposed
action may be taken.
in the preceding order
]. A classroom
or laboratory hour must
include
[
constitute
] 50 clock
minutes of actual classroom or laboratory time.
DHS
].
DHS
] in writing of
the dates and daily hours of the program, and the projected number of students.
DHS
] prior to
the program's effective date of the change.
the elderly, chronically
ill, mentally retarded, and/or other persons
] in a long-term care setting
or be an
[
. An
] instructor in a school of nursing [
may
request a waiver of the experience requirement
].
DHS
] of the final grade results for each student within
15 days
after
[
of
] completion of the course. [
The official DHS class roster form must be used and signed by the coordinator.
]
§95.119(b)(6) of this title (relating
to Training Program Requirements)
].
DHS
].
Each
] program must inform
DADS on the DADS class roster
form
[
DHS
] of the name of each permit holder who
has
completed
[
completes
] the course [
within 15 days. The
official DHS class roster form must be used and signed by the coordinator
].
The Texas Department of Human Services (DHS)
] may suspend or revoke an existing permit, disqualify a person from
receiving a permit, or deny to a person the opportunity to be examined for
a permit because of a person's conviction of a felony or misdemeanor if the
crime directly relates to the duties and responsibilities of a medication
aide.
DHS
must consider
]:
DHS must consider
] the evidence described
in
the Occupations Code, §53.023
[
Texas Civil Statutes,
Article 6252-13c, §4(c)
].
DHS must give
] written
notice to the person that
DADS
[
DHS
] proposes to deny
the application or suspend or revoke the permit after a hearing in accordance
with the provisions of
§95.123(c)(3)
[
§95.123(e)
] of this title (relating to Violations, Complaints, and Disciplinary
Actions). If
DADS
[
DHS
] denies, suspends, or revokes
an application or permit under this chapter,
DADS gives
[
DHS must give
] the person written notice:
DHS
] and its decision;
and
DHS's
] action is final and appealable
.
[
; and
]
(D)
of the earliest date that
the person may appeal.]
the Texas Department of Human Services (DHS)
] alleging
that a person or program has violated the
Health and Safety Code, Chapter
242, Subchapter N,
[
code
] or this chapter.
DHS in
] writing
the
[
. The mailing address is
] Medication Aide Permit Program, [
Texas
] Department of
Aging and Disability
[
Human
] Services,
P.O. Box 149030, Mail Code Y-979, Austin, Texas 78714-9030.
(2)
Upon receipt of a complaint,
DHS must send to the complainant DHS's complaint form, which the complainant
must complete and return to DHS before further action can be taken.]
(3)
] Anonymous complaints may be
investigated by
DADS
[
DHS
] if the complainant provides
sufficient information.
DHS's
] initial investigation determines:
DHS's
] jurisdiction,
DADS advises
[
DHS must advise
]
the complainant and, if possible,
refers
[
refer
] the
complainant to the appropriate governmental agency for handling the complaint;
DHS must dismiss
] the complaint and
gives
[
give
] written notice of the dismissal to the permit
holder or person against whom the complaint has been filed and the complainant;
or
[
and
]
DHS
] may propose to deny, suspend, emergency suspend,
revoke, or not renew a permit or to rescind program approval.
DHS may deny an application or permit renewal, suspend or revoke
a permit, or rescind program approval for any violation of the code or this
chapter
].
(1)
] Prior to institution of formal
proceedings to revoke or suspend a permit or rescind program approval,
DADS gives
[
DHS must give
] written notice to the permit holder
or program of the facts or conduct alleged to warrant revocation, suspension,
or rescission, and the permit holder or program must be given an opportunity,
as described in the notice, to show compliance with all requirements of the
Health and Safety Code, Chapter 242,
Subchapter N,
and this chapter.
When there is a finding of an alleged act of abuse, neglect, or misappropriation
of resident property by a permit holder employed at a Medicaid-certified nursing
facility or a Medicare-certified skilled nursing facility,
DADS complies
[
DHS must comply
] with the hearings process as provided
in 42 Code of Federal Regulations
§488.335
[
488.335
].
(2)
] If denial, revocation, or suspension
of a permit or rescission of program approval is proposed,
DADS gives
[
DHS must give
] written notice that the permit holder or
program must request, in writing, a formal hearing within 30 days of receipt
of the notice, or the right to a hearing
is
[
must be
]
waived and the permit
is
[
must be
] denied, revoked,
or suspended or the program approval
is
[
must be
] rescinded.
(3)
] The formal hearing
is
[
must be
] conducted according to [
DHS's
] formal
hearing procedures
at 1 TAC §§357.481 - 357.490
[
under §§79.1601 - 1614 of this title (relating to Formal Hearings)
and §§76.101 - 76.108 of this title (relating to Criminal History
Check of Employees in Facilities for Care of the Aged and Persons with Disabilities),
if applicable
].
(4)
] If an alleged act of abuse,
neglect, or misappropriation by a medication aide who also is a certified
nurse aide under the provisions of Chapter 94 of this title (relating to Nurse
Aides) violates the rules in this chapter and Chapter 94,
DADS complies
[
DHS must comply
] with the formal hearing process
described
[
as required
] in paragraph
(4)
[
(3)
] of this subsection. Through the formal hearing, determinations
will be made on both the permit for medication aide practice and the certificate
for nurse aide practice.
DHS
] suspends a permit, the suspension
remains
[
must
remain
] in effect until
DADS
[
DHS
] determines
that the reason for suspension no longer exists
or DADS revokes or determines
not to renew the permit
.
DADS investigates
[
DHS must
investigate
] prior to making a determination, and:
DHS
];
DHS
may
] not renew the permit until
DADS
[
DHS
] determines
that the reason for suspension no longer exists;
DHS
] revokes or does not
renew a permit, a person may reapply for a permit by complying with the requirements
and procedures in this chapter at the time of reapplication.
DADS
[
DHS
] may refuse to issue a permit if the reason for revocation or nonrenewal
continues to exist; and
upon revocation or nonrenewal
], a permit holder must
immediately
return the permit to
DADS
[
DHS
].
F
], or this chapter;
the Texas
Department of Human Services (DHS)
]. An application for a permit must
be made in accordance with §95.109(b) and (c) of this title (relating
to Application Procedures).
A
] written examination [
must be given by DHS
] to each applicant
at a site determined by
DADS
[
DHS
]. Examination provisions
for employees of correctional institutions must comply with §95.111 of
this title (relating to Examination).
DHS must determine
] eligibility according to §95.113(a), (b), (c)(3)
- (5), and (d) of this title (relating to Determination of Eligibility) and
subsections
(d)
[
(d)(2)
] and
(e)
[
(e)(2)
] of this section.
The Texas
Department of Human Services (DHS) must comply
] with the following procedures
in processing applications for a permit and renewal.
DHS's
] Medication Aide Permit Program. If the program
administrator does not agree that the time period has been violated or finds
that good cause existed for exceeding the time period, the request must be
denied.
is considered to exist
] if the number of applications for a permit and
permit renewal exceeds by 15% or more the number of applications processed
in the same calendar quarter the preceding year; another public or private
entity relied upon by
DADS
[
DHS
] in the application
process caused the delay; or any other condition exists giving
DADS
[
DHS
] good cause for exceeding the time period.
DHS's
] hearings section to request a fair hearing on the
reimbursement denial. The hearing will be held pursuant to applicable provisions
of
the
[
DHS's
] formal hearing procedures
at 1 TAC §§357.481
- 357.490
[
as provided in §§79.1601 - 79.1614 of this
title (relating to Formal Hearings). The program administrator must submit
a written report of the facts related to the processing of the application
and of any good cause for exceeding the applicable time period to DHS. DHS
must provide written notice of the decision to the applicant and the program
administrator. If the appeal is decided in favor of the applicant, full reimbursement
of all fees paid in that particular application process must be made
].
(d)
Contested cases. The time
periods for contested cases related to the denial of a permit or permit renewals
are not included within the time periods stated in subsection (a) of this
section. The time period for conducting a contested case hearing runs from
the date DHS receives a written request for a hearing and ends when DHS's
decision is final and appealable. A hearing may be completed within one to
four months, but may extend for a longer period of time depending on the particular
circumstances of the hearing.]
the Texas Department of Human Services (DHS)
].
Other exemptions
] are
as follows.
Rns
] who is administering
medications as part of the student's clinical experience;
Board of Vocational Nurse Examiners
];
DHS
] under this chapter who is administering
medications as part of the trainee's clinical experience.
regarding
] the rules of
DADS
[
DHS
] governing home health
medication aides and must assure that the home health medication aide is in
compliance with the
Health and Safety Code, Chapter 142, Subchapter B
[
statute
].
DHS
] rules applicable
to personnel used in an agency; and
§97.61
] of this title (relating to Home Health Aides) if the person
will be used as a home health aide and a home health medication aide.
the statute
] must complete a training program. Prior to enrollment in
a training program and prior to application for a permit under this section,
all persons:
Chapter §97.61 (relating Home
Health Aides)
].
;
] if the date of graduation from the nursing
school was no earlier than January 1 of the year immediately preceding the
year of application for a permit under this section.
an official
] application form to
DADS
[
DHS
]. The applicant
must meet the requirements of subsection (e)(1) - (4) of this section.
DHS
] acknowledges receipt of
the application by
sending
[
forwarding to
] the applicant
a copy of this chapter and
DADS'
[
DHS's
] open book examination.
within 45 calendar days to DHS
].
DHS's
] written examination.
DADS
[
DHS
] determines the
site of the examination.
DADS denies the application of an
[
Any
] applicant failing to schedule and take the examination
by
the date given in
[
within 45 calendar days of
] the examination
notice [
may have his or her application voided
].
DHS
] evaluates all application documents submitted
by the applicant.
DHS
] notifies the applicant
in writing of the examination results.
DHS's
] curriculum for a home health medication
aide training program;
to which
] he or she certifies cover
DADS'
[
DHS's
]
curriculum. The statement must be submitted with the person's application
for a permit under this section; and
.
]
graduate
] must submit
a DADS
[
an official
] application form to
DADS
[
DHS
]. The applicant must meet the requirements of subsection (e)(1)
- (4) of this section.
DHS
] acknowledges receipt of
the application by
sending
[
forwarding to
] the applicant
a copy of this chapter and of
DADS'
[
DHS's
] open book
examination.
DHS
] may contact the issuing
agency to verify the applicant's status with the agency.
DHS's
] open book examination and return it
to DADS by the date given
in the examination notice
[
within 45 calendar days to DHS
].
DHS's
] written examination. The site of the examination
is
[
shall be
] determined by
DADS
[
DHS
].
DADS
denies the application of an
[
Any
] applicant failing to schedule
and take the examination
by the date given in
[
within 45 calendar
days of
] the examination notice [
may have his or her application
voided
].
DHS
] evaluates all application documents submitted
by the applicant.
DHS
] notifies the applicant
in writing of the examination results.
DHS
], no later
than 30 calendar days after enrollment in a training program,
an application,
including
all required information and documentation on
DADS
[
official DHS
] forms.
DHS does not consider
]
an application as officially submitted
when DADS receives
[
until the applicant submits
] the nonrefundable combined permit application
and examination fee payable to the [
Texas
] Department of
Aging and Disability
[
Human
] Services. The fee required by
subsection (n) of this section must accompany the application form.
DHS
]; and
DHS
] sends a notice listing
the additional materials required to an applicant who does not complete the
application [
in a timely manner
]. An application not completed
within 30 calendar days after the date of the notice will be void.
Notice
] of application
acceptance, disapproval, or deficiency [
must be
] in accordance
with subsection (q) of this section.
DHS
] gives a written
examination to each applicant at a site
DADS determines
[
determined DHS
].
DHS
] at least four weeks prior to its requested examination date.
DHS
] determines the passing
grade on the examination.
DHS
] notifies in writing an
applicant who fails the examination.
An
] applicant under
subsection (e) of this section
one
[
may be given a
]
subsequent examination, without additional payment of a fee, upon the applicant's
written request to
DADS
[
DHS
].
within 45 calendar days from the date of
]
the failure notification.
DADS
[
DHS
] determines the
site of the examination.
DHS
]. The examination must be completed
within 45 calendar days from the date of the originally scheduled examination.
DADS
[
DHS
] determines the site for the rescheduled examination.
DHS
receives and
] approves or disapproves all applications.
DADS sends
notices
[
Notices
] of application approval, disapproval, or
deficiency [
must be
] in accordance with subsection (q) of this
section.
An
] application for
a permit [
is disapproved
] if the person has:
DHS
] as set out in subsection (j) of this section;
DHS
];
statute
] or any provision
of this chapter; or
DHS
] determines
that the application should not be approved,
DADS
[
the director
] gives the applicant written notice of the reason for the proposed
decision and of the opportunity for a formal hearing in accordance with subsection
(r) of this section.
DHS
] before the expiration date of the permit does not
excuse
the permit holder's
failure to file for timely renewal.
DHS
] prior to expiration
of the permit in order to renew the permit. Continuing education hours are
not
required for the first renewal.
After a permit is renewed for
the first time, the permit holder must earn approved continuing education
hours to have the permit renewed again.
DHS
] denies renewal of the
permit of a permit holder who is in violation of the
Health and Safety
Code, Chapter 142, Subchapter B,
[
statute
] or this chapter
at the time of application for renewal.
DHS
] sends to the permit holder at the
address in
DADS'
[
DHS's
] records notice of the expiration
date of the permit and the amount of the renewal fee due and a renewal form
that the permit holder must complete and return with the required renewal
fee.
DHS
] issues a renewal permit
to a permit holder who has met all requirements for renewal.
DHS will
] not renew a
permit if the permit holder does not complete the required seven-hour continuing
education requirement. Successful completion is determined by the student's
instructor. An individual who does not meet the continuing education requirement
must complete a new program, application, and examination in accordance with
the requirements of this section.
DHS will
] not renew a
permit if renewal is prohibited by the Texas Education Code, §57.491,
concerning defaults on guaranteed student loans.
subsection
].
should
]
be filed with
DADS
[
DHS
] along with the renewal form.
DHS
] along with the renewal
form if the individual having the power of attorney executes any of the documents
required in this
subparagraph
[
subsection
].
subsection
] must pay the applicable renewal fee.
subsection
] is not required to submit any continuing education
hours.
DHS
]:
Notification
of changes shall be reported to DHS
] within 30 calendar days after
changing his or her
[
a change of
] address or name.
DHS
] replaces a lost, damaged,
or destroyed permit upon receipt of a completed duplicate permit request form
and permit replacement fee.
An applicant whose personal check
for the combined permit application and examination fee is not honored by
the financial institution may reinstate the application by remitting to DHS
a money order or cashier's check for the amount within 30 calendar days of
the date of the applicant's receipt of DHS's notice. An application will be
considered incomplete until the fee has been received and cleared through
the appropriate financial institution
].
(4)
A permit holder whose personal
check for the renewal fee is not honored by the financial institution must
remit to DHS a money order or cashier's check within 30 calendar days of the
date of the licensee's receipt of DHS's notice. If proper payment is not received,
the permit will not be renewed. If a renewal card has already been issued,
it will be void.]
Education Agency
] or Texas Higher Education
Coordinating Board that desires to offer a training program must file an application
for approval on
a DADS
[
an official
] form. Programs
sponsored by state agencies for the training and preparation of its own employees
are exempt from the accreditation requirement. An approved institution may
offer the training program and a continuing education program.
official
]
forms and supporting documentation must be originals.
DHS's
] established
curricula.
DHS
] may conduct an inspection
of the classroom site.
Notice
] of approval
or proposed disapproval of the application [
will be given
] to the
program within 30 calendar days of the receipt of a complete application.
If the application is proposed to be disapproved due to noncompliance with
the requirements of the
Health and Safety Code, Chapter 142, Subchapter
B,
[
statute
] or of this chapter, the reasons for disapproval
are
[
must be
] given in the notice.
in the preceding order
]. A classroom or laboratory hour
is
[
constitutes
] 50 clock-minutes of actual classroom or
laboratory time.
DHS
].
DHS
]
in writing of the starting date, the ending date, the daily hours of the program,
and the projected number of students.
DHS
] prior to
the program's effective date of the change.
Each
] program must inform
DADS on the DADS class
roster form
[
DHS
] of the satisfactory completion for each
student [
within 15 calendar days of completion of the course. The official
department class roster form must be used and signed by the coordinator
].
DHS
].
Each
] program must inform
DADS on the DADS class roster
form
[
DHS
] of the name of each permit holder who
has
completed
[
completes
] the course [
within 15 calendar
days. The official department class roster form must be used and signed by
the coordinator
].
DHS
]
complies with the following procedures in processing applications of home
health medication aide permits and renewal of permits.
is considered to exist
] if the number of applications for initial home
health medication aide permits and renewal permits exceeds by 15% or more
the number of applications processed in the same calendar quarter of the preceding
year; another public or private entity relied upon by
DADS
[
DHS
] in the application process caused the delay; or any other condition
exists giving
DADS
[
DHS
] good cause for exceeding the
time period.
DHS
] for a timely resolution of any dispute arising from a violation
of the time periods. The applicant must give written notice to the commissioner
at the address of
DADS
[
DHS
] that he or she requests
full reimbursement of all fees paid because his or her application was not
processed within the applicable time period. The director of the Home Health
Medication Aide Permit Program must submit a written report of the facts related
to the processing of the application and of any good cause for exceeding the
applicable time period. The commissioner provides written notice of the commissioner's
decision to the applicant and the director of the Home Health Medication Aide
Permit Program. An appeal is decided in the applicant's favor if the applicable
time period was exceeded and good cause was not established. If the appeal
is decided in favor of the applicant, full reimbursement of all fees paid
in that particular application process are made.
(6)
The time periods for contested
cases related to the denial of initial home health medication aide permits
or renewal permits are not included within the time periods stated in this
subsection. The time period for conducting a contested case hearing runs from
the date DHS receives a written request for a hearing and ends when the decision
of DHS is final and appealable. A hearing may be completed within one to four
months but may extend for a longer period of time depending on the particular
circumstances of the hearing.]
DHS
] may deny, suspend, emergency
suspend, or revoke a permit or program approval if the permit holder or program
fails to comply with any provision of the
Health and Safety Code, Chapter
142, Subchapter B,
[
statute
] or this chapter.
DHS
] may also take action under
paragraph (1) of this subsection for fraud, misrepresentation, or concealment
of material fact on any documents required to be submitted to
DADS
[
DHS
] or required to be maintained or complied by the permit holder or
program pursuant to this chapter.
DHS
] may suspend or revoke
an existing permit or program approval or disqualify a person from receiving
a permit or program approval because of a person's conviction of a felony
or misdemeanor if the crime directly relates to the duties and responsibilities
of a home health medication aide or training program. In determining whether
a conviction directly relates,
DADS considers
[
DHS must consider
] the elements set forth in
§97.601
[
§97.52(c)
] of this title (relating to
License Denial, Suspension or Revocation
[
Enforcement Action
]).
DHS
] proposes to deny, suspend,
or revoke a home health medication aide permit or to rescind a home health
medication aide program approval,
DADS
[
the director
]
notifies the permit holder or home health medication aide program by certified
mail, return receipt requested, of the reasons for the proposed action and
offers
[
offer
] the permit holder or home health medication
aide program an opportunity for a hearing.
DHS
] unless
another date is reflected on a United States Postal Service return receipt.
Texas
] Department of
Aging and Disability
[
Human
]
Services, Medication Aide
Permit
Program, Mail Code
Y-979
[
979
], P.O. Box 149030, Austin, Texas 78714-9030.
DHS
] may suspend a permit to
be effective immediately when the health and safety of persons are threatened.
DADS
[
DHS
] notifies the permit holder of the emergency action
by certified mail, return receipt requested, or personal delivery of the notice
and of the effective date of the suspension and the opportunity for the permit
holder to request a hearing.
must be
] conducted
pursuant to [
the Administrative Procedure Act,
] Texas Government
Code, Chapter 2001, and
the
[
DHS's
] formal hearing procedures
at 1 TAC §§357.481 - 357.490
[
in Chapter 79 of this title
(relating to Legal Services)
].
DHS
] suspends a home health
medication aide permit, the suspension remains in effect until
DADS
[
DHS
] determines that the reason for suspension no longer exists
, revokes the permit, or determines not to renew the permit
.
DADS
[
DHS
] investigates prior to making a determination.
DHS
].
DHS may
] not renew the permit until
DADS
[
DHS
] determines that the reason for suspension no longer
exists.
DHS
] revokes or does not
renew a permit, a person may reapply for a permit by complying with the requirements
and procedures in this chapter at the time of reapplication.
DHS
] may refuse to issue a
permit if the reason for revocation or nonrenewal continues to exist.
Upon revocation or nonrenewal
], a permit holder must
immediately
return the license or permit to
DADS
[
DHS
].
Part 20.
TEXAS WORKFORCE COMMISSION
Subchapter B. REQUIREMENTS FOR TWC ADVISORY COMMITTEE MEMBERS
Subchapter C. REQUIREMENTS FOR TWC ADVISORY COMMITTEE MEETINGS
Subchapter D. REPORTING TO THE COMMISSION