Part 1.
DEPARTMENT OF AGING AND DISABILITY SERVICES
Chapter 7.
DADS ADMINISTRATIVE RESPONSIBILITIES
Subchapter A. STANDARD OPERATING PROCEDURES
The Health and Human Services Commission (HHSC) proposes, on behalf
of the Department of Aging and Disability Services (DADS), amendments to §§7.1,
7.6, and 7.7, concerning the subchapter's purpose, the assignment and use
of pooled vehicles, and inscriptions on state vehicles; new §7.3, concerning
definitions; and the repeal of §§7.2 - 7.4, concerning application
of the subchapter, compliance with nondiscrimination laws, and definitions,
all of which are in Chapter 7, DADS Administrative Responsibilities, which
has been renamed.
Background and Purpose
The amendments are proposed to update rules governing management of agency
vehicles to comply with the State Vehicle Fleet Management Plan, as required
by Government Code, §2171.1045. The amendments are also proposed to correct
agency names, delete obsolete terms, and reflect new procedures and organizational
structures resulting from the consolidation of health and human services agencies
in compliance with Acts 2003, 78th Legislature, Regular Session, Chapter 198
(House Bill 2292).
The new section is proposed to establish a definitions section that contains
words and terms currently appearing in the subchapter and to update the definitions
of those terms to reflect current procedures and organizational structures.
The repeal is proposed to delete unnecessary or duplicative sections in
the subchapter.
Section-by-Section Summary
The amendment to §7.1 updates the purpose of the subchapter and deletes
a reference to state mental health facilities. The amendment to §7.6
replaces references to the Texas Department of Mental Health and Mental Retardation
(TDMHMR) with references to DADS and updates the names of state agencies and
offices in which written documentation required by DADS' vehicle fleet management
plan must be maintained. The amendment to §7.7 replaces a reference to
individuals receiving services from TDMHMR with a more specific reference
to individuals receiving services from DADS' mental retardation facilities,
removes a reference to mental illness, and adds a reference to the law that
governs inscriptions on state vehicles.
New §7.3 governs the definitions of words and terms appearing in the
subchapter.
The repeal of §7.2 deletes a duplicative rule, since the entities
to which the subchapter applies are listed in the proposed amendment to §7.1.
The repeal of §7.3 deletes a rule that is not necessary because oversight
of civil rights compliance in health and human services agencies has been
transferred to HHSC. The repeal of §7.4 deletes references to obsolete
agency names and definitions and allows the definitions section to be proposed
with a new section number.
Fiscal Note
Gordon Taylor, DADS Chief Financial Officer, has determined that, for the
first five years the proposed sections are in effect, enforcing or administering
the proposed sections does not have foreseeable implications relating to costs
or revenues of state or local governments.
Small Business and Micro-business Impact Analysis
DADS has determined that there is no adverse economic effect on small businesses,
micro-businesses, or on businesses of any size as a result of enforcing or
administering the proposed sections, because the sections apply to a state
agency and have no effect on businesses.
Public Benefit and Costs
Lawrence M. Parker, DADS Chief Operating Officer, has determined that,
for each year of the first five years the proposed sections are in effect,
the public benefit expected as a result of enforcing the sections is that
DADS will remain in compliance with the State Vehicle Fleet Management Plan
as required by Government Code, §2171.1045 and the public will have access
to rules that accurately reflect DADS procedures and organizational structure.
Mr. Parker anticipates that there will not be an economic cost to persons
who are required to comply with the proposed sections. The proposed sections
will not affect a local economy.
Takings Impact Assessment
DADS has determined that this 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.
Public Comment
Questions about the content of this proposal may be directed to Keith Romel
at (512) 438-5140 in DADS' Administrative Management Services section. Written
comments on the proposal may be submitted to Texas Register Liaison, Legal
Services-034, 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 §§7.1, 7.3, 7.6, 7.7
Statutory Authority
The amendments and new section are proposed under Texas 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 DADS, and §2171.1045, which directs state agencies to adopt
rules consistent with the management plan adopted under Texas Government Code, §2171.104,
relating to the assignment and use of agency vehicles; and 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.
The amendments and new section implement Texas Government Code, §531.0055
and §2171.104, and Texas Human Resources Code, §161.021.
§7.1.Purpose.
The purpose of this subchapter is to describe
certain
[
[
[
[
§7.3.Definitions.
The following words and terms, when used in this subchapter, have the
following meanings unless the context clearly indicates otherwise:
(1)
CEO--The superintendent of a facility.
(2)
DADS--The Department of Aging and Disability Services.
(3)
Department--The Department of Aging and Disability Services.
(4)
Facility--A state mental retardation facility operated
by DADS.
(5)
Individual--A person receiving services from a facility.
(6)
LAR (legally authorized representative)--A person authorized
by law to act on behalf of an individual with regard to a matter described
in this subchapter and may include a parent, guardian, or managing conservator
of a minor individual, a guardian of an adult individual, or a personal representative
of a deceased individual.
(7)
Mental retardation--Subaverage general intellectual functioning
existing concurrently with deficits in adaptive behavior and originating during
the developmental period.
(8)
Material safety data sheet--The document provided by a
manufacturer that describes a material's or part's chemical properties along
with guidelines for proper use, storage, and disposal.
(9)
Non-commercial group--A group of people associated with
an organization (for example, a civic, fraternal, religious, social, service,
community, or public employee organization).
(10)
Sales receipt--A written statement issued by the seller
that includes the date it was created and the cost of the item or service.
(11)
Trust fund--An account at a financial institution in a
facility's control that contains funds of an individual.
(12)
Unauthorized departure that may have unusual consequences--The
unauthorized departure of an individual that causes a reasonably prudent staff
member who has knowledge of the individual's condition to believe that harm
or injury to the individual or to others may occur as a result of the unauthorized
departure, for example, the unauthorized departure of an individual whom the
treatment staff believes to be a danger to self or to others or the unauthorized
departure of an individual who requires maintenance medication such as insulin.
§7.6.Assignment and Use of Pooled Vehicles.
(a)
The DADS motor pool consists of agency
vehicles permanently assigned to state office, a regional office, or a facility.
(b)
[
(c)
[
§7.7.Inscription on State Vehicles.
A state vehicle
[
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 February 15, 2006.
TRD-200600831
Phoebe Knauer
General Counsel
Department of Aging and Disability Services
Earliest possible date of adoption: April 2, 2006
For further information, please call: (512) 438-3734
Subchapter A. STANDARD OPERATING PROCEDURES
40 TAC §§7.2 - 7.4
(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.)
Statutory Authority
The repeal is proposed under Texas 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
DADS, and 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.
The repeal implements Texas Government Code, §531.0055 and §2171.104,
and Texas Human Resources Code, §161.021.
§7.2.Application.
§7.3.Compliance with Nondiscrimination Laws.
§7.4.Definitions.
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 February 15, 2006.
TRD-200600832
Phoebe Knauer
General Counsel
Department of Aging and Disability Services
Earliest possible date of adoption: April 2, 2006
For further information, please call: (512) 438-3734
Subchapter I. RESIDENT ASSESSMENT
40 TAC §19.801
The Health and Human Services Commission (HHSC) proposes,
on behalf of the Department of Aging and Disability Services (DADS), an amendment
to §19.801, concerning resident assessments, in Chapter 19, Nursing Facility
Requirements for Licensure and Medicaid Certification.
Background and Purpose
The purpose of the amendment is to require all nursing facilities to submit
comprehensive resident assessments, including the Minimum Data Set (MDS) Resident
Assessment, to DADS. Currently, DADS requires all nursing facilities to perform
the MDS Resident Assessment on all nursing facility residents; however, only
those facilities certified to participate in Medicaid (Medicaid-certified
facilities) are required to submit the MDS data to DADS. Senate Bill 48, 79th
Texas Legislature, amended Texas Health and Safety Code, §242.403, to
authorize DADS to require all nursing facilities to submit information necessary
to ensure the quality of care in the facilities, including the MDS Resident
Assessment. Under the new authority granted by state law, DADS will require
non-Medicaid-certified facilities to submit the MDS data.
The amendment is also proposed to clarify and update language in the section.
Section-by-Section Summary
The proposed amendment to §19.801 removes language that requires the
submittal of comprehensive resident assessments by Medicaid-certified and
dually certified nursing facilities only, thus requiring all nursing facilities,
regardless of Medicaid certification, to submit the resident assessments.
Throughout the proposed amendment, references to the Texas Department of
Human Services or DHS are changed to the Department of Aging and Disability
Services or DADS to reflect the current name of the state agency that licenses
and regulates nursing facilities in Texas.
In paragraph (5), a federal regulation citation is clarified.
In paragraph (11), the phrase "and dually certified facilities" is added
to clarify that the use of independent assessors, which is a federal law creation,
does not apply to licensed-only nursing facilities.
In paragraph (12)(B), a cross-referenced section title is corrected, and
in paragraph (12)(D), the name of the Texas Department of Health is corrected
to the Department of State Health Services to accurately reflect its current
name.
Fiscal Note
Gordon Taylor, DADS Chief Financial Officer, has determined that, for the
first five years the proposed amendment is in effect, enforcing or administering
the amendment does not have foreseeable implications relating to costs or
revenues of state or local governments.
Small Business and Micro-business Impact Analysis
DADS has determined that there is no adverse economic effect on small businesses,
micro-businesses, or on businesses of any size as a result of enforcing or
administering the amendment, because nursing facilities affected by the amendment
are already required to perform the MDS Resident Assessment and, therefore,
are expected to have the automation resources necessary to meet the new requirement
to submit the MDS data to DADS.
Public Benefit and Costs
Adelaide Horn, DADS Commissioner, has determined that, for each year of
the first five years the amendment is in effect, the public benefit expected
as a result of enforcing the amendment is that more complete and accurate
information will be available to consumers and family members on the quality
of care given in licensed-only facilities and in facilities with distinct,
private-pay wings. The additional data will also allow DADS to give these
facilities better feedback for their use in improving services and resident
care.
Ms. Horn anticipates that there will not be an economic cost to persons
who are required to comply with the amendment. The amendment will not affect
a local economy.
Takings Impact Assessment
DADS has determined that this 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.
Public Comment
Questions about the content of this proposal may be directed to Leslie
L. Cortes, M.D., at (512) 438-2567 in DADS' Medical Quality Assurance section.
Written comments on the proposal may be submitted to Texas Register Liaison,
Legal Services-044, Department of Aging and Disability Services W-615, P.O.
Box 149030, Austin, Texas 78714-9030, within 30 days of publication in the
Statutory Authority
The amendment is proposed under Texas 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 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; Texas Government Code, §531.021, which provides HHSC with the
authority to administer federal funds and plan and direct the Medicaid program
in each agency that operates a portion of the Medicaid program; and Texas
Health and Safety Code, §242.403, which requires DADS to adopt standards
for quality of life and quality of care for residents of convalescent and
nursing facilities and related institutions.
The amendment affects Texas Government Code, §531.0055 and §531.021,
Texas Human Resources Code, §161.021, and Texas Health and Safety Code, §242.403.
§19.801.Resident Assessment.
A
[
(1)
Admission orders. At the time each resident is admitted,
the facility must have physician orders for the resident's immediate care.
(2)
Comprehensive assessments.
(A)
A facility must make a comprehensive assessment of a resident's
needs, using the Resident Assessment Instrument (RAI), including the Minimum
Data Set (MDS), specified by
DADS
[
(B)
The assessment must include at least the following information:
(i)
identification and demographic information;
(ii)
customary routine;
(iii)
cognitive patterns;
(iv)
communication;
(v)
vision;
(vi)
mood and behavior patterns;
(vii)
psychosocial well-being;
(viii)
physical functioning and structural problems;
(ix)
continence;
(x)
disease diagnoses and health conditions;
(xi)
dental and nutritional status;
(xii)
skin condition;
(xiii)
activity pursuit;
(xiv)
medications;
(xv)
special treatments and procedures;
(xvi)
discharge potential;
(xvii)
documentation of summary information regarding the additional
assessment performed through the resident assessment protocols; and
(xviii)
documentation of participation in assessment. The assessment
process must include direct observation and communication with the resident,
as well as communication with licensed and nonlicensed direct care staff members
on all shifts.
(C)
A facility must conduct a comprehensive assessment of a
resident as follows:
(i)
within 14 calendar days after admission, excluding readmissions
in which there is no significant change in the resident's physical or mental
condition. For purposes of this section, "readmission" means a return to the
facility following a temporary absence for hospitalization or for therapeutic
leave.
(ii)
within 14 calendar days after the facility determines,
or should have determined, that there has been a significant change in the
resident's physical or mental condition. For purposes of this section, a "significant
change" means a major decline or improvement in the resident's status that
will not normally resolve itself without further intervention by staff or
by implementing standard disease-related clinical interventions, that has
an impact on more than one area of the resident's health status, and requires
interdisciplinary review or revision of the care plan, or both.
(iii)
not less often than once every 12 months.
(3)
Quarterly review assessment. A facility must assess a resident
using the quarterly review instrument specified by
DADS
[
(4)
Use. A facility must maintain all resident assessments
completed within the previous 15 months in the resident's active record and
use the results of the assessments to develop, review, and revise the resident's
comprehensive plan of care as specified in §19.802 of this title (relating
to Comprehensive Care Plans).
(5)
Preadmission Screening and Resident Review (PASARR). A
Medicaid-certified facility must coordinate assessments with the PASARR program
under Medicaid in
42 CFR,
Part 483, Subpart C to the maximum extent
practicable to avoid duplicative testing and effort.
(6)
Automated data processing requirement [
(A)
Encoding data. Within seven days after a facility completes
a resident's assessment, a facility must encode the following information
for each resident in the facility:
(i)
admission assessment;
(ii)
annual assessment updates;
(iii)
significant change in status assessments;
(iv)
quarterly review assessments;
(v)
a subset of items upon a resident's transfer, reentry,
discharge, and death, using the reentry tracking form and/or discharge tracking
form; and
(vi)
background (face-sheet) information, if there is no admission
assessment.
(B)
Transmitting data. Within seven days after a facility completes
a resident's assessment, a facility must be capable of transmitting to
DADS
[
(C)
Monthly transmittal requirements. A facility must electronically
transmit, at least monthly (within 31 days of the lock date), encoded, accurate,
complete MDS data to
DADS
[
(i)
admission assessment;
(ii)
annual assessment;
(iii)
significant change in status assessment;
(iv)
significant correction of prior full assessment;
(v)
significant correction of prior quarterly assessment;
(vi)
quarterly review;
(vii)
a subset of items upon a resident's transfer, reentry,
discharge, and death; and
(viii)
background (face-sheet) information, for an initial
transmission of MDS data on a resident that does not have an admission assessment.
(D)
Data format. The facility must transmit data in the format
specified by
DADS
[
(E)
Resident-identifiable information.
(i)
A facility may not release information that is resident-identifiable
to the public.
(ii)
The facility may release information that is resident-identifiable
to an agent only in accordance with a contract under which the agent agrees
not to use or disclose the information except to the extent the facility itself
is permitted to do so.
(7)
Accuracy of assessments. The assessment must accurately
reflect the resident's status.
(8)
Coordination. A registered nurse must conduct or coordinate
each assessment with the appropriate participation of health professionals.
(9)
Certification.
(A)
A registered nurse must sign and certify that the assessment
is completed.
(B)
Each individual who completes a portion of the assessment
must sign and certify the accuracy of that portion of the assessment.
(10)
Penalty for falsification in Medicaid-certified and dually
certified facilities.
(A)
An individual who willfully and knowingly:
(i)
certifies a material and false statement in a resident
assessment is subject to a civil money penalty of not more than $1,000 for
each assessment; or
(ii)
causes another individual to certify a material and false
statement in a resident assessment is subject to a civil money penalty of
not more than $5,000 for each assessment.
(B)
Clinical disagreement does not constitute a material and
false statement.
(11)
Use of independent assessors in Medicaid-certified facilities
and dually certified facilities
. If
DADS
[
(12)
Pediatric resident assessment.
(A)
Pediatric assessments should be performed by licensed facility
staff experienced in the care and assessment of children. Parents or guardians
should be included in the assessment process. The potential for community
transition should be discussed with the parents or guardians whenever an assessment
occurs.
(B)
The comprehensive assessment for children must include
a record of immunizations, blood screening for lead, and developmental assessment.
The local school district's developmental assessment may be used if available.
See §19.1934 of this title (relating to Educational Requirements for
Persons Under
Age
22).
(C)
Licensed facility staff should assess the child's functional
status in relation to pediatric developmental levels, rather than adult developmental
levels.
(D)
The facility staff must ensure pediatric residents receive
services in accordance with the guidelines established by the [
(13)
PASARR referrals for a
resident
[
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 February 16, 2006.
TRD-200600838
Phoebe Knauer
General Counsel
Department of Aging and Disability Services
Earliest possible date of adoption: April 2, 2006
For further information, please call: (512) 438-3734
40 TAC §19.910
The Health and Human Services Commission (HHSC) proposes,
on behalf of the Department of Aging and Disability Services (DADS), an amendment
to §19.910, concerning quality assurance early warning systems, in Chapter
19, Nursing Facility Requirements for Licensure and Medicaid Certification.
Background and Purpose
The purpose of the amendment is to implement the provisions of Senate Bill
(SB) 874, 79th Texas Legislature, which amended Texas Health and Safety Code, §255.003.
SB 874 deleted the requirement in §255.003 for DADS' quality-of-care
monitors to make unannounced monitoring visits to long-term care facilities.
As a result, the proposed amendment provides an option for DADS' quality-of-care
monitors to give a facility prior notice of their monitoring visits.
Section-by-Section Summary
The proposed amendment to §19.910(1) states that monitoring visits
to long-term care facilities may be announced or unannounced. The amendment
also replaces the term "aperiodic" with clearer language explaining that monitoring
visits may occur on any day and at any time, including nights, weekends, and
holidays.
Throughout the section, references to the Texas Department of Human Services
or DHS are replaced with references to the Department of Aging and Disability
Services or DADS.
Fiscal Note
Gordon Taylor, DADS Chief Financial Officer, has determined that, for the
first five years the proposed amendment is in effect, enforcing or administering
the amendment does not have foreseeable implications relating to costs or
revenues of state or local governments.
Small Business and Micro-business Impact Analysis
DADS has determined that there is no adverse economic effect on small businesses
or micro-businesses or on businesses of any size as a result of enforcing
or administering the amendment, because the amendment places no new requirements
on nursing facilities.
Public Benefit and Costs
Adelaide Horn, DADS Commissioner, has determined that, for each year of
the first five years the amendment is in effect, the public benefit expected
as a result of enforcing the amendment is improved resident care in nursing
facilities. Providing the facility with prior notice of a monitoring visit
means that key staff at the facility will more likely be present when the
visit is conducted and thus be more readily aware of the need for improvement
as issues are identified.
Ms. Horn anticipates that there will not be an economic cost to persons
who are required to comply with the amendment. The amendment will not affect
a local economy.
Takings Impact Assessment
DADS has determined that this 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.
Public Comment
Questions about the content of this proposal may be directed to Leslie
L. Cortes, M.D., at (512) 438-2567 in DADS' Medical Quality Assurance section.
Written comments on the proposal may be submitted to Texas Register Liaison,
Legal Services-042, Department of Aging and Disability Services W-615, P.O.
Box 149030, Austin, Texas 78714-9030, within 30 days of publication in the
Statutory Authority
The amendment is proposed under Texas 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 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; and Texas Health and Safety Code, Chapter 255, which authorizes DADS
to establish a quality assurance early warning system for long-term care facilities
and to create rapid response teams.
The amendment implements Texas Government Code, §531.0055, Texas Human
Resources Code, §161.021; and Texas Health and Safety Code, §§255.001
- 255.005.
§19.910.Quality Assurance Early Warning System.
The [
(1)
Quality-of-care monitors are based in regional offices
and monitor long-term care (LTC) facilities on
visits that may be announced
or unannounced and may occur on any day and at any time
[
(2) - (7)
(No change.)
(8)
Conditions observed by the quality-of-care monitor that
may constitute an immediate threat to the health or safety of a resident will
be immediately reported to the regional office supervisor for appropriate
action and, as appropriate or as required by law, to law enforcement, adult
protective services, other divisions of
DADS
[
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 February 16, 2006.
TRD-200600836
Phoebe Knauer
General Counsel
Department of Aging and Disability Services
Earliest possible date of adoption: April 2, 2006
For further information, please call: (512) 438-3734
40 TAC §19.911
The Health and Human Services Commission (HHSC) proposes,
on behalf of the Department of Aging and Disability Services (DADS), an amendment
to §19.911, concerning rapid response teams, in Chapter 19, Nursing Facility
Requirements for Licensure and Medicaid Certification.
Background and Purpose
The purpose of the amendment is to allow a rapid response team to be comprised
of one quality-of-care monitor, rather than at least two quality-of-care monitors
as the rule currently requires. A quality-of-care monitor is a registered
nurse, pharmacist, or dietician employed by DADS who is trained and experienced
in long-term care facility regulation, standards of practice, and evaluation
of resident care. Rapid response teams visit long-term care facilities at
the request of the facility. The amendment will permit nursing facilities
in Texas to request a specific type of quality-of-care monitor (that is, a
nurse, a pharmacist, or a dietician) to address a specific issue identified
through DADS' quality assurance early warning system.
Section-by-Section Summary
The amendment to §19.911 changes the composition of a rapid response
team from two or more quality-of-care monitors to one or more quality-of-care
monitors. The amendment also replaces references to the Texas Department of
Human Services (DHS) with references to DADS.
Fiscal Note
Gordon Taylor, DADS Chief Financial Officer, has determined that, for the
first five years the proposed amendment is in effect, enforcing or administering
the amendment does not have foreseeable implications relating to costs or
revenues of state or local governments.
Small Business and Micro-business Impact Analysis
DADS has determined that there is no adverse economic effect on small businesses
or micro-businesses or on businesses of any size as a result of enforcing
or administering the amendment, because the amendment places no new requirements
on businesses.
Public Benefit and Costs
Adelaide Horn, DADS Commissioner, has determined that, for each year of
the first five years the amendment is in effect, the public benefit expected
as a result of enforcing the amendment is that DADS will be able to use its
resources more effectively by providing a discipline-specific response to
a nursing facility's request for assistance. Such a response should have a
positive impact on quality improvement efforts in the facility, with a resulting
benefit to resident health and safety.
Ms. Horn anticipates that there will not be an economic cost to persons
who are required to comply with the amendment. The amendment will not affect
a local economy.
Takings Impact Assessment
DADS has determined that this 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.
Public Comment
Questions about the content of this proposal may be directed to Leslie
L. Cortes, M.D., at (512) 438-2567 in DADS' Medical Quality Assurance section.
Written comments on the proposal may be submitted to Texas Register Liaison,
Legal Services-043, Department of Aging and Disability Services W-615, P.O.
Box 149030, Austin, Texas 78714-9030, within 30 days of publication in the
Statutory Authority
The amendment is proposed under Texas 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 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; and Texas Health and Safety Code, Chapter 255, which authorizes DADS
to establish a quality assurance early warning system for long-term care facilities
and to create rapid response teams.
The amendment implements Texas Government Code, §531.0055, Texas Human
Resources Code, §161.021, and Texas Health and Safety Code, §§255.001
- 255.005.
§19.911.Rapid Response Teams.
(a)
Rapid response teams are
comprised
[
(b)
Rapid response teams may visit facilities that request
DADS'
[
(c)
(No change.)
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 February 16, 2006.
TRD-200600837
Phoebe Knauer
General Counsel
Department of Aging and Disability Services
Earliest possible date of adoption: April 2, 2006
For further information, please call: (512) 438-3734
40 TAC §19.1917
The Health and Human Services Commission (HHSC) proposes,
on behalf of the Department of Aging and Disability Services (DADS), an amendment
to §19.1917, concerning quality assessment and assurance, in Chapter
19, Nursing Facility Requirements for Licensure and Medicaid Certification.
Background and Purpose
The purpose of the amendment is to comply with the requirement of Senate
Bill 1525, 79th Legislature, which amended the Texas Health and Safety Code
by adding Chapter 256 concerning safe patient handling and movement practices.
Under existing rules, a Quality Assessment and Assurance Committee (QAAC)
is maintained by a nursing facility to identify issues regarding quality assessment
and assurance activities and develop and implement appropriate plans to correct
identified quality deficiencies.
Section-by-Section Summary
The amendment to §19.1917 adds a requirement that a nursing facility's
Quality Assessment and Assurance Committee adopt and ensure implementation
of a policy that addresses safe resident handling and movement practices.
The policy must identify, assess, and develop strategies to control risk of
injury to residents and nurses associated with the lifting, transferring,
respositioning, or moving of a resident.
Fiscal Note
Gordon Taylor, DADS Chief Financial Officer, has determined that, for the
first five years the proposed amendment is in effect, enforcing or administering
the amendment does not have foreseeable implications relating to costs or
revenues of state or local governments.
Small Business and Micro-business Impact Analysis
DADS has determined that there is no adverse economic effect on small businesses
or micro-businesses or on businesses of any size as a result of enforcing
or administering the amendment because a nursing facility already provides
training regarding safe resident handling and, therefore, implementing the
QAAC policy will not put an undue burden on the nursing facilty.
Public Benefit and Costs
Veronda Durden, DADS Assistant Commissioner for Regulatory Services, has
determined that, for each year of the first five years the amendment is in
effect, the public benefit expected as a result of enforcing the amendment
is the nursing facility's QAAC will have a policy in place to reduce the risk
of injury to residents and nurses.
Ms. Durden anticipates that there will not be an economic cost to persons
who are required to comply with the amendment. The amendment will not affect
a local economy.
Takings Impact Assessment
DADS has determined that this 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.
Public Comment
Questions about the content of this proposal may be directed to Hannah
Ndika at (512) 438-2133 in DADS' Regulatory Services Policy Development and
Support Unit. Written comments on the proposal may be submitted to Texas Register
Liaison, Legal Services-040, 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
.
Statutory Authority
The amendment is proposed under Texas 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 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; Texas Health and Safety Code, Chapter 242, which authorizes DADS
to license and regulate nursing facilities; and Texas Health and Safety Code,
Chapter 256, which requires a policy for safe resident handling and movement
practices.
The amendment affects Texas Government Code, §531.0055, Texas Human
Resources Code, §161.021, and Texas Health and Safety Code, §§242.001-242-852,
256.001, and 256.002.
§19.1917.Quality Assessment and Assurance.
(a) - (d)
(No change.)
(e)
The Quality Assessment and Assurance Committee
must adopt and ensure implementation of a policy to identify, assess, and
develop strategies to control risk of injury to residents and nurses associated
with the lifting, transferring, repositioning, or moving of a resident. The
policy must establish a process that includes:
(1)
analysis of the risk of injury to both
residents and nurses posed by the resident handling needs of the resident
populations served by the nursing facility and the physical environment in
which resident handling and moving occurs;
(2)
annual in-service education of nurses in
the identification, assessment, and control of risk of injury to residents
and nurses during resident handling;
(3)
evaluation of alternative ways to reduce
risks associated with resident handling, including evaluation of equipment
and the environment;
(4)
restriction, to the extent feasible with
existing equipment and aids, of manual resident handling or moving of all
or most of a resident's weight to emergency, life-threatening, or otherwise
exceptional circumstances;
(5)
collaboration with and an annual report
to the nurse staffing committee;
(6)
specific procedures for nurses to refuse
to perform or be involved in resident handling or moving that the nurse believes
in good faith will expose a resident or a nurse to an unacceptable risk of
injury;
(7)
submission of an annual report by the nursing
staff to the Quality Assessment and Assurance Committee on activities related
to the identification, assessment, and development of strategies to control
risk of injury to residents and nurses associated with the lifting, transferring,
repositioning, or moving of a resident; and
(8)
in developing architectural plans for constructing
or remodeling a nursing facility or a unit of a nursing facility in which
resident handling and moving occurs, consideration of the feasibility of incorporating
resident handling equipment or the physical space and construction design
needed to incorporate that equipment at a later date.
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 February 15, 2006.
TRD-200600803
Phoebe Knauer
General Counsel
Department of Aging and Disability Services
Earliest possible date of adoption: April 2, 2006
For further information, please call: (512) 438-3734
The Health and Human Services Commission (HHSC) proposes, on behalf
of the Department of Aging and Disability Services (DADS), amendments to §§30.32,
30.62, 30.82, and 30.100, concerning disclosure, claims processing, sanctions,
and additional requirements; new §§30.2, 30.30, 30.34, and 30.36,
concerning purpose, general contracting, termination of a contract, and written
information; and the repeal of §§30.2, 30.30, 30.34, and 30.36 concerning
program basis, requirements for participation, change of ownership, and effective
date of contracts, in Chapter 30, Medicaid Hospice Program.
Background and Purpose
The purpose of the amendments, new sections, and repeal is to require hospice
contracts to follow additional requirements in the Contracting for Community
Care Services chapter, clarify current hospice rules, and add a new rule covering
voluntary termination of a contract. The rules will clarify that a hospice
must have a contract before billing for Medicaid services and identify the
requirements for general contracting, disclosure, contract termination, processing
claims, and sanctions.
Section-by-Section Summary
New §30.2 establishes the purpose of the Medicaid Hospice Program
chapter, which includes the contracting requirements for a hospice and the
eligibility requirements for an individual electing Medicaid hospice.
The repeal of §§30.2, 30.30, 30.34, and 30.36 deletes requirements
and contracting procedures that have been moved to the Contracting for Community
Care Services chapter or reorganized within the Medicaid Hospice Program chapter.
New §30.30 requires a hospice to meet federal and state regulations
in order to be approved for participation in the Medicaid Hospice Program.
The new section also adds a requirement that a hospice must have a contract
with DADS and an individual must elect the Medicaid hospice benefit before
payment is made to the hospice. A hospice must also have a written contract
with a nursing facility or intermediate care facility for persons with mental
retardation or related conditions before payment is made to the hospice, if
services are provided in such a facility. The amendment to §30.32 moves
the procedures for requesting a hearing and sanction requirement to §30.82.
New §30.34 requires a hospice to notify DADS in writing at the address
provided at least 10 days before the hospice terminates its contract. The
new section also states the steps that a hospice must follow to help ensure
the needs of individuals served by the hospice are met if the hospice terminates
its contract. New §30.36 defines the acceptable methods for submitting
written information to DADS.
The amendment to §30.62 requires a hospice to have a contract with
DADS and to submit a complete and accurate claim. The amendment also adds
that DADS will deny claims for hospice services and for room and board provided
to an individual before the effective date of the Medicaid hospice contract.
The amendment to §30.82 removes the details of sanctions DADS may
take against a hospice and adds a cross-reference to the rule governing sanctions
in the Contracting for Community Care Services chapter. The amendment also
updates the procedures for requesting a hearing. The amendment to §30.100
requires a hospice to document hospice services provided to an individual
within the clinical or client record and removes a reference to the solicitation
rule in the Contracting for Community Services chapter because a hospice must
comply with the solicitation requirements in this chapter.
Fiscal Note
Gordon Taylor, DADS Chief Financial Officer, has determined that, for the
first five years the proposed amendments, new sections, and repeal are in
effect, enforcing or administering the amendments, new sections, and repeal
does not have foreseeable implications relating to costs or revenues of state
or local governments.
Small Business and Micro-business Impact Analysis
DADS has determined that there is no adverse economic effect on small businesses
or micro- businesses or on businesses of any size as a result of enforcing
or administering the amendments, new sections, and repeal, because the rules
are being updated to reflect the reorganization of DADS contracting duties
without adding requirements that will have an adverse economic effect on a
hospice.
Public Benefit and Costs
Barry Waller, DADS Assistant Commissioner for Provider Services, has determined
that, for each year of the first five years the amendments, new sections,
and repeal are in effect, the public benefit expected as a result of enforcing
the amendments, new sections, and repeal is that the rules will clearly describe
to a hospice the contract and claims procedures that DADS will monitor. The
new rules will make it clear to a hospice that DADS will not make Medicaid
payments until requirements within this chapter are met.
Mr. Waller anticipates that there will not be an economic cost to persons
who are required to comply with the amendments, new sections, and repeal.
The amendments, new sections, and repeal will not affect a local economy.
Takings Impact Assessment
DADS has determined that this 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.
Public Comment
Questions about the content of this proposal may be directed to Maxcine
Tomlinson at (512) 438-3169 in DADS' Community Services Policy Development
and Support Unit. Written comments on the proposal may be submitted to Texas
Register Liaison, Legal Services-021, 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
.
Subchapter A. INTRODUCTION
40 TAC §30.2
(Editor's note: The text of the following section proposed for
repeal will not be published. The section 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.)
Statutory Authority
The repeal is proposed under Texas 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
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; and
Texas Government Code, §531.021, which provides HHSC with the authority
to administer federal funds and plan and direct the Medicaid program in each
agency that operates a portion of the Medicaid program.
The repeal affects Texas Government Code, §531.0055 and §531.021,
and Texas Human Resources Code, §161.021.
§30.2.Program Basis.
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 February 15, 2006.
TRD-200600823
Phoebe Knauer
General Counsel
Department of Aging and Disability Services
Earliest possible date of adoption: April 2, 2006
For further information, please call: (512) 438-3734
40 TAC §30.2
Statutory Authority
The new section is proposed under Texas 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 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; and Texas Government Code, §531.021, which provides HHSC with
the authority to administer federal funds and plan and direct the Medicaid
program in each agency that operates a portion of the Medicaid program.
The new section affects Texas Government Code, §531.0055 and §531.021,
and Texas Human Resources Code, §161.021.
§30.2.Purpose.
This chapter establishes the requirements for the Medicaid Hospice
Program in Texas, both for hospices contracting with the Department of Aging
and Disability Services to provide hospice services and for Medicaid-eligible
individuals who elect the Medicaid Hospice Program.
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 February 15, 2006.
TRD-200600824
Phoebe Knauer
General Counsel
Department of Aging and Disability Services
Earliest possible date of adoption: April 2, 2006
For further information, please call: (512) 438-3734
40 TAC §§30.30, 30.34, 30.36
(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.)
Statutory Authority
The repeal is proposed under Texas 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
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; and
Texas Government Code, §531.021, which provides HHSC with the authority
to administer federal funds and plan and direct the Medicaid program in each
agency that operates a portion of the Medicaid program.
The repeal affects Texas Government Code, §531.0055 and §531.021,
and Texas Human Resources Code, §161.021.
§30.30.Requirements for Participation as a Medicaid Hospice Provider.
§30.34.Change of Ownership.
§30.36.Effective Dates of Provider Contracts.
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 February 15, 2006.
TRD-200600825
Phoebe Knauer
General Counsel
Department of Aging and Disability Services
Earliest possible date of adoption: April 2, 2006
For further information, please call: (512) 438-3734
40 TAC §§30.30, 30.32, 30.34, 30.36
Statutory Authority
The new sections and amendment are proposed under Texas 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 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; and Texas Government Code, §531.021, which provides HHSC with
the authority to administer federal funds and plan and direct the Medicaid
program in each agency that operates a portion of the Medicaid program.
The new sections and amendment affect Texas Government Code, §531.0055
and §531.021, and Texas Human Resources Code, §161.021.
§30.30.General Contracting Requirements.
(a)
A hospice participating in the Medicaid Hospice Program
must comply with the requirements in this chapter and with all federal and
state regulations that govern the Medicaid Hospice Program, including the
federal regulations in 42 Code of Federal Regulations Part 418 (Hospice Care).
(b)
To be approved by the Department of Aging and Disability
Services (DADS) for participation in the Medicaid Hospice Program and be awarded
a contract, a hospice must:
(1)
meet the provisions described in Chapter 49 of this title
(relating to Contracting for Community Care Services), except for:
(A)
§49.13(b) and (f)(1) of this title (relating to General
Contractual Requirements);
(B)
§49.14 of this title (relating to Provisional Contracts);
(C)
§49.15(d)(2)(B) of this title (relating to Contract
Assignment);
(D)
§49.31(e) of this title (relating to Record Requirements);
(E)
§49.41(c)(1) and (12) of this title (relating to Billings
and Claims Payment);
(F)
§49.42 of this title (relating to Method of Payment);
(G)
§49.43 of this title (relating to Expedited Payments
System);
(H)
§49.61(a)(4) and (11) of this title (relating to Sanctions);
and
(I)
§49.63(a), (c), and (d) of this title (relating to
Recontracting);
(2)
be licensed in Texas as a home and community support services
agency to provide hospice services; and
(3)
maintain Medicare certification to provide hospice services
through the Centers for Medicare and Medicaid Services.
(c)
A hospice participating in the Medicaid Hospice Program
must not have restrictive policies or practices, including:
(1)
requiring an individual to execute a will with the hospice
named as legatee or devisee;
(2)
assigning an individual's life insurance to the hospice;
(3)
transferring an individual's property to the hospice;
(4)
requiring an individual to pay a lump sum or make any other
payment or concession to the hospice beyond the recognized Medicaid rate;
(5)
controlling or restricting an individual or legal representative
in using the individual's personal needs allowance while in a nursing facility
or an intermediate care facility for persons with mental retardation or related
conditions (ICF/MR-RC);
(6)
restricting an individual from transferring or withdrawing
from the Medicaid Hospice Program at will, except as provided by state law;
(7)
denying appropriate hospice care to an individual on the
basis of the individual's race, religion, color, national origin, sex, age,
disability, marital status, or source of payment; and
(8)
preventing or requiring the execution of written or unwritten
directives to reject life-sustaining procedures by an adult individual.
(d)
If a hospice provides services to a resident of a nursing
facility or an ICF/MR-RC, the hospice must have a written contract for the
provision of services with the nursing facility or ICF/MR-RC.
(e)
DADS does not pay for hospice services before the date:
(1)
the hospice has a Medicaid hospice contract with DADS;
(2)
the individual makes a valid election of the Medicaid hospice
benefit as provided under subsection (f) of this section; and
(3)
the hospice has a contract with a nursing facility or an
ICF/MR-RC if hospice services are provided in a nursing facility or an ICF/MR-RC.
(f)
For purposes of subsection (e)(2) of this section, a valid
Medicaid hospice election must be dated on or after the requirements listed
in subsection (e)(1) and (3) of this section have been met.
(g)
If a hospice assigns its contract, it must be assigned
in accordance with §49.15 of this title and the hospice to which the
contract has been assigned must submit an updated Texas Medicaid Hospice Program
Recipient Election/Cancellation/Discharge Notice form for each individual
receiving Medicaid hospice services from the hospice.
(h)
A hospice must allow legal representatives of DADS, the
Texas Attorney General's Medicaid Fraud Control Unit, and the Texas Health
and Human Services Commission to enter the premises at any time to make inspections
or privately interview the individuals receiving Medicaid hospice services.
§30.32.Disclosure Requirements [
[
[
§30.34.Voluntary Termination of Hospice Contract.
(a)
If a hospice wishes to voluntarily terminate its contract
with the Department of Aging and Disability Services (DADS), regardless of
the reason, the hospice must notify DADS in writing at least 10 days before
the contract is terminated. The written notification must be sent to the Department
of Aging and Disability Services, Community Services, Attention: Contracts,
P.O. Box 149030, Mail Code W-517, Austin, Texas 78714-9030. Notification sent
by overnight mail must be sent to the Department of Aging and Disability Services,
Community Services, Attention: Contracts, 701 West 51st Street, Mail Code
W-517, Austin, Texas 78751.
(b)
At least 10 days before a hospice terminates its contract
as provided in subsection (a) of this section:
(1)
for each individual receiving Medicaid hospice services,
the hospice must submit a Texas Medicaid Hospice Program Recipient Election/Cancellation/Discharge
Notice form to DADS' claims processor indicating the individual has changed
his designated hospice or revoked his election of hospice care; and
(2)
for each individual receiving Medicaid hospice services
who is changing his designated hospice, the hospice must ensure that a copy
of the individual's active record is sent to the receiving hospice in order
to ensure continuity of care and services to the individual.
(c)
Submission of the Texas Medicaid Hospice Program Recipient
Election/Cancellation/Discharge Notice form to DADS' claims processor is governed
by §30.20 of this chapter (relating to Change of the Designated Hospice)
and §30.18 of this chapter (relating to Revoking the Election of Hospice
Care).
§30.36.Submission of Written Information.
A hospice must submit by mail, fax, or hand-delivery any written information
that DADS requires of the hospice. DADS does not accept e-mail 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 February 15, 2006.
TRD-200600826
Phoebe Knauer
General Counsel
Department of Aging and Disability Services
Earliest possible date of adoption: April 2, 2006
For further information, please call: (512) 438-3734
40 TAC §30.62
Statutory Authority
The amendment is proposed under Texas 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 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; and Texas Government Code, §531.021, which provides HHSC with
the authority to administer federal funds and plan and direct the Medicaid
program in each agency that operates a portion of the Medicaid program.
The amendment affects Texas Government Code, §531.0055 and §531.021,
and Texas Human Resources Code, §161.021.
§30.62.Medicaid Hospice Claims [
(a)
Requirement for payment.
(1)
To receive Medicaid hospice payments,
a hospice
[
(2)
To receive
[
[
[
[
[
[
(b)
Submittal and forms completion requirements. To receive
Medicaid
hospice
[
(1)
Texas Medicaid Hospice Program Recipient
Election/Cancellation/Discharge
[
(2)
Medicaid/Medicare
[
(3)
Texas Index for Level of Effort (TILE) Assessment form,
if applicable; and
(4)
level of need (LON) form, if available.
(c)
Denials.
DADS denies
[
(1)
claims for hospice services provided before
the effective date of the Medicaid hospice contract;
(2)
claims for room and board provided before
the effective date of the Medicaid hospice contract;
(3)
[
(4)
[
(5)
[
(6)
[
(7)
[
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 February 15, 2006.
TRD-200600827
Phoebe Knauer
General Counsel
Department of Aging and Disability Services
Earliest possible date of adoption: April 2, 2006
For further information, please call: (512) 438-3734
40 TAC §30.82
Statutory Authority
The amendment is proposed under Texas 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 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; and Texas Government Code, §531.021, which provides HHSC with
the authority to administer federal funds and plan and direct the Medicaid
program in each agency that operates a portion of the Medicaid program.
The amendment affects Texas Government Code, §531.0055 and §531.021,
and Texas Human Resources Code, §161.021.
§30.82.Sanctions.
(a)
The [
(b)
To appeal a sanction, a hospice must request
a hearing from the Texas Health and Human Services Commission according to
the provisions outlined in 1 TAC, Chapter 357, Subchapter I.
[
[
[
[
[
[
[
[
[
[
[
[
[
[
[
[
[
[
[
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 February 15, 2006.
TRD-200600828
Phoebe Knauer
General Counsel
Department of Aging and Disability Services
Earliest possible date of adoption: April 2, 2006
For further information, please call: (512) 438-3734
40 TAC §30.100
Statutory Authority
The amendment is proposed under Texas 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 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; and Texas Government Code, §531.021, which provides HHSC with
the authority to administer federal funds and plan and direct the Medicaid
program in each agency that operates a portion of the Medicaid program.
The amendment affects Texas Government Code, §531.0055 and §531.021,
and Texas Human Resources Code, §161.021.
§30.100.Additional Requirements.
(a)
A hospice
[
(b)
A
[
(c)
An 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 February 15, 2006.
TRD-200600829
Phoebe Knauer
General Counsel
Department of Aging and Disability Services
Earliest possible date of adoption: April 2, 2006
For further information, please call: (512) 438-3734
Subchapter E. FLEET MANAGEMENT
40 TAC §68.501
(Editor's note: The text of the following section proposed for
repeal will not be published. The section 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 Health and Human Services Commission (HHSC)
proposes, on behalf of the Department of Aging and Disability Services (DADS),
the repeal of Chapter 68, Business Services, consisting of §68.501, concerning
restrictions on assignment of vehicles.
Background and Purpose
The purpose of the repeal is to delete a rule that is duplicative and,
therefore, is no longer necessary. The consolidation of health and human services
agencies in September 2004 and the resulting transfer of certain rules from
Title 25 to Title 40 of the Texas Administrative Code (TAC) left DADS with
two rules governing the assignment of vehicles. Texas Government Code, §2171.1045,
requires a state agency to promulgate rules relating to the assignment and
use of the agency's vehicles.
Section-by-Section Summary
The repeal is proposed to delete a duplicative rule governing the assignment
of agency vehicles. The remaining section governing assignment of vehicles
is found at 40 TAC §7.6. An amendment to 40 TAC §7.6 is proposed
elsewhere in this issue of the
Texas Register
.
Fiscal Note
Gordon Taylor, DADS Chief Financial Officer, has determined that, for the
first five years after the repeal, there are no foreseeable implications relating
to costs or revenues of state or local governments.
Small Business and Micro-business Impact Analysis
DADS has determined that the proposed repeal will have no adverse economic
effect on small businesses or micro-businesses, or on businesses of any size,
because the rule affects a state agency and imposes no requirements on businesses.
Public Benefit and Costs
Lawrence M. Parker, DADS Chief Operating Officer, has determined that,
for each year of the first five years after the repeal, the public benefit
expected as a result of repealing the section is that DADS will no longer
have two rules governing the assignment and use of its vehicles.
Mr. Parker anticipates that there will not be an economic cost to persons
who are affected by the repeal. The repeal will not affect a local economy.
Takings Impact Assessment
DADS has determined that this 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.
Public Comment
Questions about the content of this proposal may be directed to Keith Romel
at (512) 438-5140 in DADS' Administrative Management Services section. Written
comments on the proposal may be submitted to Texas Register Liaison, Legal
Services-034, Department of Aging and Disability Services W-615, P.O. Box
149030, Austin, Texas 78714-9030, within 30 days of publication in the
Statutory Authority
The repeal is proposed under Texas 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
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.
The repeal implements Texas Government Code, §531.0055, and Texas
Human Resources Code, §161.021.
§68.501.Restrictions on Assignment of Vehicles.
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 February 15, 2006.
TRD-200600833
Phoebe Knauer
General Counsel
Department of Aging and Disability Services
Earliest possible date of adoption: April 2, 2006
For further information, please call: (512) 438-3734
:
]
(1)
]
[
the
] standard operating policies
and procedures for
DADS
[
state mental health facilities and
state mental retardation
] facilities
, regional offices, and state
office.
[
(SMHMRFs);
]
(2)
requirements and rights of facilities;
and
]
(3)
rights protections for individuals receiving
services from a facility.
]
(a)
] Except as provided by subsection
(c)
[
(b)
] of this section,
a vehicle in the motor pool
is
[
state-owned vehicles under the TDMHMR's control are assigned
to the facility's motor vehicle pool and made
] available for use as
needed.
A vehicle
[
Some of the vehicles
] in the motor
[
vehicle
] pool may be [
organized in subpools and
] assigned
to
a specific division or function (for example
[
divisions
or functions (e.g.
], building services, security, food services) [
within the facility. The subpooled vehicles are available only to staff in
that division or who perform job duties related to that function
].
(b)
]
A
[
If a state-owned
] vehicle
in the motor pool may be
[
under the department's
control is
] assigned to an employee
on a regular basis, if a facility
superintendent, regional director, or the Administrative Management Services
manager documents
[
, then the facility CEO or designee must document
] in writing that the assignment [
and use of the vehicle
]
is critical to
the needs and
[
TDMHMR's
] mission
of DADS
. The
facility superintendent, regional director, or Administrative
Management Services manager must maintain the
written documentation
and send a copy to the Health and Human Services Commission's Facilities Fleet
Management Office, the DADS Business Management Office, and the Texas Building
and Procurement
[
must be maintained at the facility, sent to and
maintained in the Central Office transportation office, and sent to the General
Services
] Commission, Office of Vehicle Fleet Management.
State vehicles
] used primarily
for transporting individuals receiving services from
a facility is exempt
from the requirement in Texas Transportation Code, §721.002,
[
TDMHMR are not required
] to have
"Texas Department of Aging and
Disability Services"
[
its inscription
] printed on the vehicle.
The purpose served by this exemption is to provide confidentiality, safety,
and normalization for individuals receiving services and to reduce the stigma
associated with [
mental illness and
] mental retardation.
Chapter 7.
TDMHMR AND FACILITY RESPONSIBILITIES
Chapter 19.
NURSING FACILITY REQUIREMENTS FOR LICENSURE AND MEDICAID CERTIFICATION
The
] facility must conduct initially and periodically
a comprehensive, accurate, standardized, reproducible assessment of each resident's
functional capacity.
The facility must electronically transmit
[
In Medicaid-certified and dually certified nursing facilities,
] admission,
annual, quarterly, and significant change assessments [
must be transmitted
electronically
] to the [
Texas
] Department of
Aging and
Disability
[
Human
] Services
(DADS)
[
(DHS)
].
DHS. Licensed-only facilities
do not have to complete Medicaid-specific sections
].
DHS
] and approved by the Centers for Medicare & Medicaid Services
(CMS) not less frequently than once every three months.
for Medicaid-certified
and dually certified facilities only
].
DHS
] information for each resident contained in the
MDS in a format that conforms to standard record layouts and data dictionaries,
and that passes standardized edits defined by CMS and
DADS
[
DHS
].
DHS
] for all assessments
conducted during the previous month, including the following:
DHS
] and approved by CMS.
DHS
]
determines, under a certification survey or otherwise, that there has been
a knowing and willful certification of false statements under paragraph (10)
of this section,
DADS
[
DHS
] may require (for a period
specified by
DADS
[
DHS
]) that resident assessments under
this paragraph be conducted and certified by individuals who are independent
of the facility and who are approved by
DADS
[
DHS
].
Texas
] Department of
State Health Services'
[
Health's
]
Texas Health Steps (THSteps). For Medicaid-eligible pediatric residents between
the ages of six months and six years, screening for lead poisoning must be
done in accordance with THSteps guidelines.
client
] making a transition to a community-based setting. Each resident considered
for transition to a community-based care setting must be identified to determine
the presence of mental illness or mental retardation, regardless of whether
the resident is receiving treatment or services for a mental illness or mental
retardation. If the resident making the transition has ever been determined
to meet the PASARR eligibility criteria, the facility must promptly notify
the PASARR unit of
DADS
[
DHS
] and the mental retardation
authority in accordance with §19.2500(c) of this title (relating to Preadmission
Screening and Resident Review (PASARR)) before the transition.
Subchapter J. QUALITY OF CARE
Texas
] Department of
Aging and Disability
[
Human
] Services
(DADS)
[
(DHS)
] uses an early warning
system to detect conditions that could be detrimental to the health, safety,
and welfare of residents.
a regular,
unannounced, aperiodic basis
], including nights, weekends, and holidays.
DHS
],
or other responsible agencies.
composed
] of
one
[
two
] or more quality-of-care monitors
who can visit long-term care (LTC) facilities identified through the [
Texas
] Department of
Aging and Disability
[
Human
]
Services'
(DADS')
[
(DHS's)
] early warning system.
DHS's
] assistance. A visit under this subsection may
not occur before the 60th day after the date of an exit interview following
an annual or follow-up survey or inspection.
Subchapter T. ADMINISTRATION
Chapter 30.
MEDICAID HOSPICE PROGRAM
Subchapter C. PROVIDER REQUIREMENTS FOR ENTRANCE INTO THE TEXAS MEDICAID HOSPICE PROGRAM; DISCLOSURE REQUIREMENTS
Subchapter C. CONTRACTING AND DISCLOSURE REQUIREMENTS for a Medicaid Hospice Provider ].
(a)
]
A hospice
[
Medicaid providers
] must disclose
information
in accordance with 42 CFR Part
455, Subpart B.
(b)
Failure to comply with 42 CFR Part 455.
Subpart B, may result in suspension, termination, or other contract action
including but not limited to holding Medicaid payments. To appeal a sanction,
a Medicaid hospice provider must submit a written request for an appeal hearing
to the Texas Department of Human Services (DHS), P.O. Box 149030, Mail Code
W-613, Austin, Texas, 78714-9030. Hearings will be held in Austin, Texas.
]
Subchapter F. REIMBURSEMENT Processing ] Requirements.
an entity
] must
have a Medicaid hospice contract with the Department
of Aging and Disability Services (DADS)
[
be licensed as a hospice,
Medicare certified by the Centers for Medicare and Medicaid Services (CMS)
as a hospice, and Medicaid certified by the Texas Department of Human Services
(DHS)
].
A hospice that seeks
]
payment for
providing
Medicaid hospice services
, a hospice
must submit a complete and accurate claim for
those services to
DADS'
[
which the hospice is entitled to payment that must be received
by DHS's
] claims processor
. The claim must be received by DADS'
claims processor
within 12 months after the date of service. For purposes
of this section,
the
date of service is [
defined as
]
the last day of the month in which the service was provided.
(A)
]
If
an individual's
Medicaid eligibility
for benefits is established after the provision of services, the 12-month
period for submission of claims starts on the date
the individual's Medicaid
eligibility
was
[
is
] established.
(B)
Medicaid hospice payments are subject
to availability of state and federally appropriated funds.
]
(C)
Claims for services delivered before the
effective date of this section must be submitted within 12 months of the effective
date of this section.
]
(D)
Adjustment to claims must be received
by DHS's claims processor during the applicable 12- month period. Claims and
adjustments rejected or denied during the 12-month period through no fault
of the hospice may be paid upon approval by DHS.
]
(E)
The requirement to submit claims within
12 months of the date of service does not prohibit a provider from re-billing
in the case of state-generated retroactive adjustments.
]
Hospice
] payments, the
hospice
[
provider
] must submit the following documents to
DADS' claims processor
[
Provider Claims Payment
]:
Election/Cancellation
] Notice form
, which must not
have an election date that is earlier than the effective date of the hospice's
Medicaid contract
;
Texas Medicaid
]
Hospice Program Physician Certification of Terminal Illness form;
DHS will deny
]
the following [
provider
] claims
submitted by a hospice
[
to the Medicaid Hospice Program and/or other DHS programs
]:
(1)
] claims for hospice
services
provided before the election date on the Texas
[
service days prior
to a valid
] Medicaid Hospice
Program Election/Cancellation/Discharge
[
Election
] Notice
form
and
the Medicaid/Medicare
[
a
] Physician Certification of Terminal
Illness form
[
Illness(es)
];
(2)
] claims
for services provided
after the individual has revoked his
[
which have been returned
to the provider or recipients who have revoked the
] election of the
Medicaid Hospice Program;
(3)
] claims for
individuals
[
recipients
] who have been denied Medicaid eligibility
and who were not eligible for Medicaid services when hospice services were
provided
;
(4)
] claims for
individuals
who are dually eligible for Medicaid and Medicare and were
[
Medicare-Medicaid
recipients who are
] covered by the Medicare
hospice
[
Hospice
] benefit
when services were provided
; and
(5)
] claims
for hospice services
provided
by
a
hospice
after its
[
providers
whose
] Medicaid hospice contract has been
terminated
[
cancelled
].
Subchapter H. ENFORCEMENT
Texas
] Department of
Aging and Disability
[
Human
] Services [
(DHS)
] may take sanctions against
a hospice for failure to comply with the terms of the contract
,
[
or
] program rules
,
or both
, as described in §49.61
of this title (relating to Sanctions)
.
(b)
Sanctions may include one or more of the
following at the discretion of DHS:
]
(1)
Vendor hold.
]
(A)
DHS may place a vendor hold upon one or
all of a hospice provider's DHS contracts for reasons including, but not limited
to:
]
(i)
the hospice's failure to follow an agreed
upon audit resolution payment plan;
]
(ii)
the hospice's failure to provide service
according to contract or program requirements;
]
(iii)
the hospice's failure to comply with
their corrective action plan;
]
(iv)
DHS's recoupment of overpayments to a
hospice and restitution of audit exceptions assessed against a hospice; or
]
(v)
DHS's determination that client health
and safety is jeopardized by the hospice's failure to comply with the terms
of the contract or program requirements or both.
]
(B)
DHS may accept an irrevocable letter of
credit, in a format and an amount approved by DHS, to allow the release of
all or a portion of vendor payments on hold. Vendor holds are released after
resolution of all the reasons cited for the vendor hold.
]
(C)
Held funds may be offset against any overpayments
or audit exceptions attributable to the hospice.
]
(2)
Contract termination. DHS may initiate
contract termination for one or more reasons including, but not limited to:
]
(A)
the hospice's failure to comply with the
terms of the contract, rules, or program requirements;
]
(B)
the hospice's failure to maintain a current
required license;
]
(C)
DHS's determination that client health
and safety is jeopardized by the hospice's failure to comply with the terms
of the contract or program requirements or both;
]
(D)
the hospice's failure to comply with corrective
action plans after receiving a warning from DHS that continued failure to
comply with the corrective action plan, within 30 days of receiving the warning
letter, could jeopardize their contract;
]
(E)
the hospice's exclusion from contracting
for Medicare or Medicaid services; or
]
(F)
the hospice having validated reports of
abuse, neglect, or exploitation when the perpetrator is an employee, volunteer,
or owner who has or will have access to clients served through the contract.
]
(c)
If the hospice has outstanding overpayments
or audit exceptions upon termination of its contract, DHS can place vendor
hold upon one or all of the hospice contracts that DHS has with a hospice
that have the same owner as the terminated hospice contract and take the balance
owed from funds being held.
]
(d)
The provider agency has the right to appeal
any adverse action against its contract by filing a written request for a
hearing so that DHS receives the request within 15 calendar days after the
provider agency receives DHS's written notification of adverse action. The
provider must send the request for a hearing to the Hearings Department, Texas
Department of Human Services (DHS), P.O. Box 149030, Mail Code W-613, Austin,
Texas 78714-9030. Hearings will be held in Austin, Texas. Overnight mail must
be sent to the Hearings Department, Texas Department of Human Services, 701
West 51st Street, Mail Code W-613, Austin, Texas 78751.
]
Subchapter J. MISCELLANEOUS
Hospice providers
] must
document hospice services provided to an individual in a nursing facility
or an intermediate care facility for persons with mental retardation or related
conditions (ICF/MR-RC)
[
chart procedures
] in the nursing
facility clinical record or the
ICF/MR-RC
[
intermediate care
facility for persons with mental retardation or related conditions (ICF/MR-RC)
] client record, and advise the nursing facility or ICF/MR-RC staff
of changes in the
individual's
[
recipient's
] condition
as necessary.
The
] hospice [
provider
]
must have joint procedures with the nursing facility or ICF/MR-RC for ordering
medications that ensure the proper payer is billed and for reconciling billing
between the nursing facility or ICF/MR-RC and hospice [
provider
].
The recipient
] has
the right to refuse any service provided by a nursing facility, ICF/MR-RC,
or [
a
] hospice [
provider
].
(d)
The provider shall comply with the provisions
of §49.23 of this title (relating to Advertising and Solicitation of
Clients).
]
Chapter 68.
BUSINESS SERVICES
Chapter 76.
CRIMINAL HISTORY CHECK OF EMPLOYEES IN FACILITIES FOR CARE OF THE AGED AND PERSONS WITH DISABILITIES