Subchapter D. HOME AND COMMUNITY-BASED SERVICES (HCS) PROGRAM

The Health and Human Services Commission (HHSC), on behalf of the Department of Aging and Disability Services (DADS), adopts amendments to §§9.203, 9.222, and 9.244, and new §9.250 in Chapter 9, Subchapter E, governing ICF/MR Programs--Contracting, without changes to the proposed text published in the June 2, 2006, issue of the Texas Register (31 TexReg 4585).

The amendments and new section are adopted to implement Texas Government Code, Chapter 531, Subchapter D-1, which was amended by Senate Bill 40 and House Bill 2579, 79th Legislature, Regular Session, 2005. Subchapter D-1 governs permanency planning procedures for individuals under 22 years of age seeking or receiving services in an institution, including an intermediate care facility for persons with mental retardation or a related condition (facility), and requires that DADS help ensure involvement of the legally authorized representatives (LARs) of individuals under 22 years of age admitted to a facility. Specifically, Subchapter D-1 requires DADS to delegate the development of a permanency plan to a mental retardation authority (MRA), to a private entity other than an entity providing long-term institutional care, or to DADS personnel and to ensure the provision of certain information to an individual's LAR prior to the individual's admission. Also, Subchapter D-1 authorizes DADS to require an LAR to provide detailed contact information and agree to make reasonable efforts to participate in the individual's life and planning activities. In addition, Subchapter D-1 requires that LAR consent be obtained before the transfer of an individual from an institution. Further, Subchapter D-1 requires that certain processes be followed if an LAR cannot be located.

To comply with Subchapter D-1, the adopted rules require the MRA for an individual under 22 years of age to conduct permanency planning activities for the individual, and set forth the requirements of both the program provider and the MRA regarding permanency planning. These requirements include 1) notifying LARs of all available community-based services, the benefits of living in a family or community setting, that the placement is considered temporary, and that an ongoing permanency planning process is required; 2) obtaining contact information and an acknowledgement of responsibility from an LAR; 3) convening a permanency planning meeting; and 4) developing a permanency plan. Further, the adopted rules require that the program provider provide notice to DADS if an LAR cannot be located and state that DADS will refer the case to the Department of Family and Protective Services if DADS' own search for the LAR is unsuccessful. In addition, the adopted rules require that, before an individual is transferred to another facility operated by the transferring program provider, the program provider must attempt to obtain consent for the transfer from the LAR unless the transfer is made because of a serious risk to the health and safety of the individual or another person.

The amendments and new section are also adopted to update and clarify permanency planning requirements, and update or correct the definitions that are used in this subchapter. The adopted amendments correct rule cross-references and agency names that were rendered incorrect from the consolidation of several state agencies, including the Texas Department of Human Services and part of the Texas Department of Mental Health and Mental Retardation, to create DADS.

DADS received no comments regarding adoption of the amendments and new section.

The Health and Human Services Commission (HHSC), on behalf of the Department of Aging and Disability Services (DADS), adopts new §§10.101, 10.103, 10.201, 10.203, 10.205, 10.301, 10.303, 10.305, 10.307, 10.309, 10.311, 10.313, 10.315, 10.317, 10.319, 10.321, 10.323, 10.325, 10.327, 10.329, 10.331, 10.401, 10.403, 10.405, 10.501, 10.503, 10.505, 10.507, and 10.509 in new Chapter 10, governing Guardianship Services. New §10.315 and §10.507 are adopted with changes to the proposed text published in the May 26, 2006, issue of the Texas Register (31 TexReg 4370). New §§10.101, 10.103, 10.201, 10.203, 10.205, 10.301, 10.303, 10.305, 10.307, 10.309, 10.311, 10.313, 10.317, 10.319, 10.321, 10.323, 10.325, 10.327, 10.329, 10.331, 10.401, 10.403, 10.405, 10.501, 10.503, 10.505, and 10.509 are adopted without changes to the proposed text.

The new sections are adopted to implement Texas Human Resources Code, §§161.101 - 161.113, which authorizes DADS to accept referrals for guardianship services from the Department of Family and Protective Services (DFPS) for individuals who have been found to be in a state of abuse, neglect or exploitation; to assess the individuals for capacity; to apply for guardianship if guardianship is determined to be appropriate; and to serve as guardian of the individual for as long as guardianship services are required. Sections 161.101 - 161.113 were added to the Texas Human Resources Code as part of Senate Bill 6, 79th Legislature, Regular Session, 2005, which transferred responsibility for guardianship services and contracting for those services from DFPS to DADS and required that the HHSC executive commissioner adopt rules to govern the administration of DADS' assessment of the conditions and circumstances of an elderly or disabled person referred to DADS to determine whether guardianship is appropriate for that person.

In addition to adopting rules governing the assessment of individuals referred to DADS for guardianship, the HHSC executive commissioner, on behalf of DADS, also is adopting rules governing the requirements for contractors under the DADS Guardianship Program. A contractor is an entity that operates a guardianship program as defined by Texas Probate Code, §601, that contracts with DADS to serve as guardian of the person or guardian of the estate or both for individuals who become wards of DADS. The contracting requirements are adopted to place current contracting practices in rule. The contracting rules, found in new Chapter 10, Subchapters C - E, govern contractor eligibility and performance requirements, records management, and contract monitoring and compliance.

DADS received no comments regarding adoption of the new sections.

Minor changes have been made to the text of proposed §10.315(b) to provide consistent terminology within the section and to the text of proposed §10.507(a) to clarify the list of examples of contractor failures for which DADS may impose a sanction.

Subchapter A. GENERAL PROVISIONS

Subchapter I. RESIDENT ASSESSMENT

The Texas Board of Occupational Therapy Examiners adopts amendments to §376.3 and §376.6, concerning registration of facilities and renewal of facility registration, without changes to the proposed text as published in the June 30, 2006, issue of Texas Register (31 TexReg 5276) and will not be republished.

The sections were amended to remove the waiver for OT facilities where a PT facility was already registered by the same owner in the same location. A large number of waived OT facilities received all the agency services and privileges of a regular OT facility without paying any fee. A new discounted fee for this category will be created which will allow the application to be through the state's Texas Online process.

No comments were received regarding adoption of the amendments.