The Health and Human Services Commission (HHSC), on behalf of the Department of Aging and Disability Services (DADS), adopts the repeals of §§51.1-51.5, 51.7, 51.31, and 51.39; and adopts new §§51.101, 51.103, 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, 51.251, 51.301, 51.303, 51.305, 51.307, 51.309, 51.321, 51.323, 51.325, 51.327, 51.329, 51.331, 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, 51.479, 51.501, 51.503, 51.505, 51.507, 51.509, 51.511, 51.513, and 51.515, in Chapter 51, governing the Medically Dependent Children Program (MDCP). New §§51.419, 51.421, 51.503, and 51.515 are adopted with changes to the proposed text published in the April 15, 2005, issue of the Texas Register (30 TexReg 2170). The repeals of §§51.1-51.5, 51.7, 51.31, and 51.39; and new §§51.101, 51.103, 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, 51.251, 51.301, 51.303, 51.305, 51.307, 51.309, 51.321, 51.323, 51.325, 51.327, 51.329, 51.331, 51.401, 51.403, 51.405, 51.407, 51.411, 51.413, 51.415, 51.417, 51.431, 51.433, 51.441, 51.451, 51.461, 51.463, 51.465, 51.471, 51.473, 51.475, 51.477, 51.479, 51.501, 51.505, 51.507, 51.509, 51.511, and 51.513 are adopted without changes to the proposed text.

The current rules are repealed and new rules are adopted so that the rules will be better organized and easier for the public, including individuals and providers, to locate and understand. The new rules govern eligibility, the enrollment process, individual responsibilities, and provider requirements under MDCP. New definitions were included to provide clarity to the meaning of terms used in the rules. References to the Texas Department of Human Services were replaced with references to DADS or to HHSC, as appropriate, to ensure that the new rules reflect changes resulting from the consolidation of health and human services agencies in 2004. At the request of providers, the new rules offer greater flexibility in the provision of information; rather than require that providers use specific DADS forms, the new rules give specific elements that must be included when providers give information to DADS. Rules concerning transition assistance services and the consumer directed services option were added as a result of those services being approved by the Centers for Medicare and Medicaid Services as part of the service array under MDCP.

DADS received six oral comments from the Texas Association for Health Care, Advocacy, Inc., and the Texas Center for Disability Studies. A summary of each comment and the responses follow.

Comment: Concerning §51.419(b), one commenter asked that paragraph (2) of subsection (b), which would allow a provider to suspend services to an individual if the individual refuses to follow the practitioner's orders, be removed. A situation could arise in which the individual or the individual's parent or guardian observes that the medication or treatment ordered by a practitioner was not working. The rule should not allow an agency to suspend services if the individual stopped following the practitioner's orders while waiting for new orders.

Response: The agency agrees that a situation such as the one given by the commenter, or a similar situation, could arise and that the rule language should not allow for an agency to suspend services if the individual refuses to follow the practitioner's orders. The requested language was deleted from §51.419(b) in response to the comment.

Comment: One commenter was concerned that the notification period for service suspensions in §51.419(c) is five days instead of the seven days currently called for in the provider manual.

Response: The agency wants to keep the time frame for notification of service suspensions consistent with its other rules and policies, including the licensing standards for home and community support services agencies in 40 TAC Chapter 97. The rule language was not changed in response to this comment.

Comment: Concerning §51.421(a), one commenter asked that the agency encourage a home and community support services agency (HCSSA) provider to hire an attendant whom the individual has selected by changing the phrase "may hire that attendant" to "must make a good faith effort to hire that attendant."

Response: The decision was made, after discussion with provider and advocacy groups regarding this comment, to leave the rule unchanged from the proposal. Providers were concerned about potential administrative burdens the suggested change might impose, while advocates thought the change would help promote a philosophy of individual self-determination. The agency agrees that the change may impose additional administrative burdens and did not change the rule in response to the comment. However, DADS will consider alternative ways and a variety of approaches to promote a philosophy of individual self-determination throughout its programs.

Comment: One commenter asked that the agency remove the prohibition in §51.421(b) against a provider hiring a person who lives in the individual's residence as an attendant, because that language would prohibit someone such as a sibling over the age of 18 from serving as the individual's attendant.

Response: The intent of the proposed rule was to prohibit a person who is legally responsible for caring for an individual from being hired as the individual's attendant. Therefore, the agency agrees to remove the requested language but has added the managing conservator of the individual if the individual is under age 18 and the individual's spouse as persons who must not be hired as an attendant.

Comment: Concerning §51.503(b), one commenter stated that requiring the provider to document the funding sources used to deliver services in the in-home record is not feasible, because the nurse or the attendant who documents services for the in-home record will not know the funding source for the services provided. The provider keeps that documentation in the billing records.

Response: The agency agrees with this comment and moved the requirement to document funding sources from §51.503(b), concerning the in-home record, to §51.515(b), concerning record keeping.

Comment: Concerning §51.511(3), one commenter wanted to make sure that the cost of a building permit is allowed as a billable item for a minor home modification.

Response: The agency affirms that the cost of a building permit is an allowable cost that the provider includes in its bid for the total cost of the minor home modification. No change in the rule is needed in response to this comment.