Part 19. DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES
Chapter 711. INVESTIGATIONS IN DADS MENTAL RETARDATION AND DSHS MENTAL HEALTH FACILITIES AND RELATED PROGRAMS
The Health and Human Services Commission proposes, on behalf of the Department of Family and Protective Services (DFPS), amendments to §§711.1, 711.3, 711.7, 711.11, 711.23, 711.201, 711.401, 711.403, 711.405, 711.415, 711.417, 711.603, 711.605, 711.607, 711.611, 711.613, 711.801, 711.1001, 711.1003, 711.1005, 711.1007, 711.1009, 711.1011, 711.1013, 711.1203, 711.1205, 711.1207, 711.1401, 711.1405, 711.1407, 711.1411, 711.1413, 711.1415, 711.1417, 711.1419, 711.1421, 711.1425, 711.1427, 711.1429, 711.1431, 711.1433, 711.1435; new §711.1002; and the repeal of §711.1209, in its Investigations in DADS Mental Retardation and DSHS Mental Health Facilities and Related Programs. The purpose of rule changes is to clarify investigator responsibilities when the administrator or CEO of a state-operated mental health or mental retardation facility or related program is the perpetrator or alleged perpetrator in an investigation. The changes also update references to agency names and affected sections of the Texas Administrative Code resulting from the consolidation of the Health and Human Services agencies.
The amendment to §711.3: (1) clarifies that the Texas Home Living Medicaid waiver program is considered a Home and Community Services Waiver (HCSW) program; (2) adds a definition for HCSW CEO/Administrator Designee; (3) updates statutory references to the various professional groups that are Mental Health Service Providers; and (4) clarifies which definitions apply only to community centers and HCSW programs, and which definitions apply only to DADS and DSHS state-operated facilities.
The amendments to §§711.11, 711.23, 711.405, 711.611, and 711.613 update references to the Texas Administrative Code as a result of the consolidation of the Health and Human Services agencies.
Section 711.201 clarifies that allegations may be reported to Statewide Intake via the Internet, in addition to the toll-free number.
Section 711.401 clarifies investigator responsibilities for making notifications at the start of an investigation when the alleged perpetrator is the administrator or CEO.
Section 711.605 clarifies to whom the investigator releases the investigative report when the administrator is the perpetrator or alleged perpetrator.
The title of §711.607 is revised for clarity.
Section 711.1001 clarifies who may request a review of the finding when the administrator or contractor CEO is the perpetrator or alleged perpetrator.
New §711.1002 is added to clarify how a request for review by the administrator is affected by the perpetrator's request for an Employee Misconduct Registry Hearing.
Sections 711.1003, 711.1007, 711.1009, 711.1011, 711.1203, and 711.1207 are revised to change the term "Director" to "Assistant Commissioner." Also, the title of §711.1003 is revised and §711.1207(4)(B) adds language that was repealed in §711.1209, concerning who is notified of an appeal decision.
In addition to the changes already listed above, the other rules in this package are revised to: (1) update the agency name to Department of Family and Protective Services (DFPS); (2) update the agency name of the Texas Department of Mental Health and Mental Retardation (TDMHMR) to Texas Department of Aging and Disability Services (DADS) and Texas Department of State Heath Services (DSHS), as appropriate; (3) update the Consumer Services and Rights Protection (TDMHMR) to Consumer Rights and Services (DADS) and Consumer Services and Rights Protection (DSHS); and (4) update the term "executive director" of DFPS to "commissioner."
Cindy Brown, Chief Financial Officer of DFPS, has determined that for the first five-year period the proposed sections will be in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the sections.
Ms. Brown also has determined that for each year of the first five years the sections are in effect the public benefit anticipated as a result of enforcing the sections will be that investigations conducted in DADS Mental Retardation and DSHS Mental Health Facilities and Related Programs will be conducted more efficiently and provide greater protection to persons being served by these facilities and programs. There will be no effect on large, small, or micro-businesses because the proposed changes do not impose new requirements on any business and do not require the purchase of any new equipment or any increased staff time in order to comply. There is no anticipated economic cost to persons who are required to comply with the proposed sections.
HHSC has determined that the proposed amendments, new section, and repeal do 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, do not constitute a taking under §2007.043, Government Code.
Questions about the content of the proposal may be directed to Leti Guevara at (512) 438-5763 in DFPS's Adult Protective Services Division. Electronic comments may be submitted to Marianne.Mcdonald@dfps.state.tx.us. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-366, Department of Family and Protective Services E-611, P.O. Box 149030, Austin, Texas 78714-9030, within 30 days of publication in the Texas Register.
Subchapter A. INTRODUCTION
40 TAC §§711.1, 711.3, 711.7, 711.11, 711.23
The amendments are proposed under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services; and HRC §40.021, which provides that the Family and Protective Services Council shall study and make recommendations to the Executive Commissioner and the Commissioner regarding rules governing the delivery of services to persons who are served or regulated by the department.
The amendments implement HRC, Chapter 48, Subchapters F, H, and I.
§711.1.What is the purpose of this chapter?
The purpose of this chapter is to:
(1) implement the Human Resources Code (HRC) §48.255(a)
and (c) and §48.355(c), and Texas Family Code §261.404,
which require the Texas Department of
Family and
Protective
[
and Regulatory
] Services
(DFPS)
[
(PRS)
]
to develop joint rules with the Texas Department of
Aging and
Disability Services (DADS) and the Texas Department of State Health
Services (DSHS)
[
Mental Health and Mental Retardation (TDMHMR)
] to facilitate investigations in
DADS and DSHS
[
TDMHMR
] facilities and related programs;
(2) describe Adult Protective Services investigations of allegations involving adults and children in the following programs:
(A)
DADS and DSHS
[
TDMHMR
] facilities;
(B) - (E) (No change.)
(3) - (4) (No change.)
(5) implement Human Resources Code, Chapter 48, Subchapter
I, relating to the Employee Misconduct Registry maintained by the
Texas Department of
Aging and Disability
[
Human
]
Services, as described in Subchapter O of this chapter (relating to
Employee Misconduct Registry).
§711.3.How are the terms in this chapter defined?
The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
(1) - (2) (No change.)
(3) APS--Adult Protective Services, a division of
DFPS
[
PRS
].
(4) - (8) (No change.)
(9) Consumer Rights and Services--The unit at DADS' state office charged with protecting the rights of persons served.
(10) Consumer Services and Rights Protection--The unit at DSHS' central office charged with protecting the rights of persons served.
(11)
[
(9)
] Contractor--Any organization,
entity, or individual who contracts with a facility, local authority,
community center, or HCSW to provide mental health and/or mental retardation
services directly to a person served. The term includes a local independent
school district with which a facility, local authority, or community
center has a memorandum of understanding (MOU) for educational services.
(12)
[
(10)
] Contractor CEO--The
person in charge of a contractor that has one or more employees, excluding
the CEO.
[(11) CSRP or Consumer Services and Rights Protection - Ombudsman Office--The office at TDMHMR's Central Office charged with protecting the rights of persons served.]
(13) DADS--Department of Aging and Disability Services.
(14) DFPS--Department of Family and Protective Services.
(15) DSHS--Department of State Health Services.
(16)
[
(12)
] Emergency order for
protective services--A court order for protective services obtained
under Human Resources Code, §48.208.
(17)
[
(13)
] Emergency services--Services
necessary to immediately protect a person served by an HCSW from serious
physical harm or death. Examples include, but are not limited to,
arranging for:
(A) an emergency order for protective services;
(B) shelter;
(C) medical and psychiatric assessments and/or treatment; and
(D) food, medication, or other supplies.
(18)
[
(14)
] Facility--A state
hospital, state school, or state center that is operated by
DADS
or DSHS
[
TDMHMR
].
(19)
[
(15)
] Home and community-based
services waiver
(HCSW) programs
[
program (HCSW)
]--
The Home and
Community-based
Services and the Texas Home
Living
Medicaid waiver programs authorized under the Social
Security Act, §1915(c), operated by
DADS
[
TDMHMR
]
under the authority of the Texas Health and Human Services Commission,
that are exempt from licensure in accordance with Health and Safety
Code, §142.003(a)(19).
(20) HCSW CEO/Administrator Designee--The person designated by a CEO or administrator of a HCSW to perform the duties of the CEO/Administrator for the purposes of the investigation when the CEO/Administrator is the alleged perpetrator in an investigation.
(21)
[
(16)
] Incitement--To spur
to action or instigate into activity; implies responsibility for initiating
another's actions.
(22)
[
(17)
] Individual with a
disability receiving services--A disabled person as defined in the
Human Resources Code, Chapter 48, receiving services from a:
(A) facility, local authority, community center, HCSW; or
(B) contractor or agent of one of the programs listed in subparagraph (A) of this paragraph.
(23)
[
(18)
] Investigator--An
employee of the division of Adult Protective Services who has:
(A) demonstrated competence and expertise in conducting investigations; and
(B) received training on techniques for communicating effectively with individuals with a disability.
(24)
[
(19)
] Local authority--An
entity designated by the
DADS or DSHS
[
TDMHMR
]
commissioner in accordance with the Texas Health and Safety Code, §533.035(a).
(25)
[
(20)
] Mental health services
provider--In accordance with the Texas Civil Practice and Remedies
Code, §81.001, an individual, licensed or unlicensed, who performs
or purports to perform mental health services, including a:
(A) licensed social worker as defined by
§505.002,
Occupations Code
[
the Human Resources Code, §50.001
];
(B) chemical dependency counselor as defined by
§504.001,
Occupations Code
[
Texas Civil Statutes, Article 4512o
];
(C) licensed professional counselor as defined
by §503.002,
Occupations Code
[
in §2 of the Licensed Professional
Counselor Act, (Texas Civil Statutes, Article 4512g)
];
(D) licensed marriage and family therapist as defined
by §502.002, Occupations Code
[
in §2, Licensed
Marriage and Family Therapist Act, (Texas Civil Statutes, Article
4512c-1)
];
(E) member of the clergy;
(F) physician who is practicing medicine as defined
by §151.002,
Occupations Code
[
in §1.03 of the Medical Practice
Act, (Texas Civil Statutes, Article 4495b)
];
(G) psychologist offering psychological services as defined
by §501.003, Occupations Code
[
in §2
of the Psychologists' Certification and Licensing Act, (Texas Civil
Statutes, Article 4512c)
]; or
(H) special officer for mental health assignment certified under
§1701.404, Occupations Code
[
the Government
Code, §415.037
].
(26)
[
(21)
] Non-serious physical
injury
(in Community Centers and HCSW Programs)
--Any injury
determined not to be serious by the appropriate medical personnel.
Examples of non-serious physical injury include the following:
(A) superficial laceration;
(B) contusion two and one-half inches in diameter or smaller; or
(C) abrasion.
(27)
[
(22)
] Non-serious physical
injury (
in DADS and DSHS
[
MHMR
] facilities only)--Any
injury requiring minor first aid and determined not to be serious
by a registered nurse, advanced practice nurse (APN), or physician.
(28)
[
(23)
] Peer review--A review
of clinical and/or:
(A) medical practice(s) by peer physicians;
(B) dental practice(s) by peer dentists;
(C) pharmacy practice(s) by peer pharmacists; or
(D) nursing practice(s) by peer nurses.
(29)
[
(24)
] Perpetrator--A person
who has committed an act of abuse, neglect, or exploitation.
(30)
[
(25)
] Person served--An
individual with a disability receiving services, or a child receiving
services in a:
(A) facility or HCSW who is registered or assigned in the Client Assignment and Registration (CARE) system; or
(B) community center or local authority who is registered or assigned in CARE or who is otherwise receiving services from a community center or local authority, either directly or by contract.
(31)
[
(26)
] Preponderance of
evidence--The greater weight of evidence, or evidence which is more
credible and convincing to the mind.
(32)
[
(27)
] Prevention and management
of aggressive behavior (PMAB)--
DADS and DSHS'
[
TDMHMR's
]
proprietary risk management program that uses the least intrusive,
most effective options to reduce the risk of injury for persons served
and staff from acts or potential acts of aggression.
(33)
[
(28)
] Professional review--A
review of clinical and/or professional practice(s) by peer professionals.
(34)
[
(29)
] Program--A facility,
local authority, community center, or HCSW.
[(30) PRS--Texas Department of Protective and Regulatory Services.]
(35)
[
(31)
] Reporter--The person,
who may be anonymous, making an allegation.
(36)
[
(32)
] Serious physical
injury
(in Community Centers and HCSW Programs)
--Any injury
determined to be serious by the appropriate medical personnel. Examples
of serious physical injury include the following:
(A) fracture;
(B) dislocation of any joint;
(C) internal injury;
(D) contusion larger than two and one-half inches in diameter;
(E) concussion;
(F) second or third degree burn; or
(G) any laceration requiring sutures.
(37)
[
(33)
] Serious physical
injury (
in DADS and DSHS
[
MHMR
] facilities only)--Any
injury requiring medical intervention or hospitalization or any injury
determined to be serious by a physician or advanced practice nurse
(APN). Medical intervention is treatment by a licensed medical doctor,
osteopath, podiatrist, dentist, physician's assistant, or advanced
practice nurse (APN). For the purposes of this subchapter, medical
intervention does not include first aid, an examination, diagnostics
(e.g., x-ray, blood test), or the prescribing of oral or topical medication.
(38)
[
(34)
] Sexually transmitted
disease--Any infection with or without symptoms or clinical manifestations
that can be transmitted from one person to another by sexual contact.
[(35) TDMHMR--Texas Department of Mental Health and Mental Retardation.]
(39)
[
(36)
] Victim--A person
served who is alleged to have been abused, neglected, or exploited.
§711.7.What does APS not investigate under this chapter?
APS does not investigate:
(1) if another branch of
DFPS
[
PRS
]
or another state agency is responsible under state law for the investigation;
(2) (No change.)
(3)
if the allegation
[
it
] involves
only the clinical practice of a physician, dentist, registered nurse,
licensed vocational nurse, or pharmacist.
§711.11.How is physical abuse defined?
In this chapter, when the alleged perpetrator is an employee, agent, or contractor, physical abuse is defined as:
(1) - (2) (No change.)
(3) the use of chemical or bodily restraints on a person served not in compliance with federal and state laws and regulations, including:
(A) 25 TAC Chapter
415
[
405
],
Subchapter F (relating to [
Voluntary and Involuntary Behavioral
]
Interventions in Mental Health Programs);
(B)
40 TAC Chapter 5, Subchapter H, (relating
to Use of Restraints in State Mental Retardation Facilities)
[
25 TAC Chapter 405, Subchapter H, (relating to Behavior Management
- Facilities Serving Persons with Mental Retardation)
];
and
[(C) 25 TAC Chapter 409, Subchapter L (relating to Mental Retardation Local Authority (MRLA) Pilot Program);]
(C)
[
(D)
]
40 TAC Chapter
9, Subchapter D (relating to Home and Community-based Services (HCS)
Program) and 40 TAC Chapter 9, Subchapter N (relating to Texas Home
Living (TxHmL) Program).
[
25 TAC Chapter 419, Subchapter
D (relating to Home and Community-based Services (HCS) Program); and
]
[(E) 25 TAC Chapter 419, Subchapter P (relating to Home and Community-based Services - OBRA (HCS-O) Program).]
§711.23.What is not considered abuse, neglect, or exploitation?
Abuse, neglect, and exploitation do not include the following:
(1) the proper use of restraints and seclusion, including Prevention and Management of Aggressive Behavior (PMAB), and the approved application of behavior modification techniques as described in:
(A) 25 TAC Chapter
415
[
405
],
Subchapter F (relating to [
Voluntary and Involuntary Behavioral
]
Interventions in Mental Health Programs);
(B) (No change.)
(C)
40 TAC Chapter 5, Subchapter H (relating to
Use of Restraints in State Mental Retardation Facilities)
[
25
TAC Chapter 405, Subchapter H (relating to Behavior Management - Facilities
Serving Persons With Mental Retardation)
];
(2) actions taken in accordance with the rules of the
Texas Department of
Aging and Disability Services and the Texas
Department of State Health Services
[
Mental Health and
Mental Retardation
]; or
(3) (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 July 26, 2007.
TRD-200703232
Gerry Williams
General Counsel
Department of Family and Protective Services
Earliest possible date of adoption: September 9, 2007
For further information, please call: (512) 438-3437
The amendment is proposed under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services; and HRC §40.021, which provides that the Family and Protective Services Council shall study and make recommendations to the Executive Commissioner and the Commissioner regarding rules governing the delivery of services to persons who are served or regulated by the department.
The amendment implements HRC, Chapter 48, Subchapters F, H, and I.
§711.201.What is your duty to report if you are an employee, agent, or contractor of a facility, local authority, community center, or HCSW?
If you know or suspect that a person served is being or has been abused, neglected, or exploited or if you know or suspect that a person served who is a resident of a facility or facility contractor meets other criteria specified in §711.5(b) of this title (relating to What does APS investigate under this chapter?), you must:
(1) report such knowledge or suspicion to
DFPS
[
PRS
] immediately, if possible, but in no case more than one
hour after knowledge or suspicion by calling the
DFPS
[
PRS
] toll-free number at 1-800-647-7418
or by use of the Internet
at https://www.txabusehotline.org/notice-aps.asp
;
(2) preserve and protect any evidence related to the
allegation in accordance with instructions from
DFPS
[
PRS
]; and
(3) (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 July 26, 2007.
TRD-200703233
Gerry Williams
General Counsel
Department of Family and Protective Services
Earliest possible date of adoption: September 9, 2007
For further information, please call: (512) 438-3437
40 TAC §§711.401, 711.403, 711.405, 711.415, 711.417
The amendments are proposed under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services; and HRC §40.021, which provides that the Family and Protective Services Council shall study and make recommendations to the Executive Commissioner and the Commissioner regarding rules governing the delivery of services to persons who are served or regulated by the department.
The amendments implement HRC, Chapter 48, Subchapters F, H, and I.
§711.401.Who and when does the investigator notify of an allegation and when is the identity of the reporter revealed?
(a)
Except as provided in subsection
(b) of this section, the investigator makes the following notifications,
as appropriate:
[
The investigator notifies the following
of an allegation:
]
[
Figure: 40 TAC §711.401
]
(b) If the administrator or CEO is the alleged perpetrator, the investigator makes other notifications, in subsection (a) of this section, as appropriate, but instead of notifying the administrator or CEO:
§711.403.Who and when does the investigator notify upon receiving an allegation that relates to a general complaint?
Within 24 hours or the next working day following receipt of an allegation that relates to a general complaint, as described in §711.7(2) of this title (relating to What does APS not investigate under this chapter?), the investigator notifies the following of the general complaint:
(1) (No change.)
(2)
Consumer Rights and Services
[
CSRP
],
if the complaint involves an HCSW.
§711.405.What action does the investigator take if the alleged perpetrator is a physician, dentist, registered nurse, licensed vocational nurse, or pharmacist for a facility?
(a) The investigator meets with the administrator, and the facility medical, dental, nursing or pharmacy director, as appropriate, to determine whether the allegation involves clinical practice, in accordance with 25 TAC §417.509(a) and 40 TAC §7.509(a) (relating to Peer Review).
(b) If it is determined that the allegation involves
clinical practice, then the investigator refers the allegation to
the administrator for peer review in accordance with 25 TAC §417.509(a)(2)
and 40 TAC §7.509(a)(2)
[
(relating to Peer Review)
].
(c) (No change.)
(d) If it is determined that the allegation involves
both clinical practice and non-clinical issues, then the investigator
refers the allegation to the administrator for peer review in accordance
with 25 TAC §417.509(a)(3)
and 40 TAC §7.509(a)(3)
[
(relating to Peer Review)
] and conducts an investigation.
§711.415.What are the requirements for face-to-face contact with the alleged victim?
The investigator must make a face-to-face contact with the alleged victim within the following time frames:
§711.417.When must the investigator complete the investigation?
(a) Unless an extension is granted in accordance with §711.419 of this title (relating to What if the investigator cannot complete the investigation on time?), the investigator must complete the investigation within the following time frames:
(b) (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 July 26, 2007.
TRD-200703234
Gerry Williams
General Counsel
Department of Family and Protective Services
Earliest possible date of adoption: September 9, 2007
For further information, please call: (512) 438-3437
40 TAC §§711.603, 711.605, 711.607, 711.611, 711.613
The amendments are proposed under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services; and HRC §40.021, which provides that the Family and Protective Services Council shall study and make recommendations to the Executive Commissioner and the Commissioner regarding rules governing the delivery of services to persons who are served or regulated by the department.
The amendments implement HRC, Chapter 48, Subchapters F, H, and I.
§711.603.What is included in the investigative report?
The investigative report includes the following:
(1) - (7) (No change.)
(8) the physician's exam and treatment of abuse/neglect-related
injuries documented on the
DADS or DSHS
[
TDMHMR
]
Client Injury/Incident Report (facilities only);
(9) - (11) (No change.)
§711.605.Who receives the investigative report?
(a) The investigator sends a copy of the investigative report to:
(1) the administrator, and when appropriate, the contractor CEO
except as described in paragraph (4) of this subsection;
[
.
]
[(A) If the administrator is the perpetrator or alleged perpetrator, the investigator only releases the report to CSRP.]
[(B) If the contractor CEO is the perpetrator or alleged perpetrator, the investigator only releases the report to the administrator;]
(2)
Consumer Rights and Services
[
CSRP
],
if the investigation involves an HCSW;
(3) local law enforcement if the investigation confirms
that a person served has been abused, neglected, or exploited in a
manner that constitutes a criminal offense under any law, including
the Texas Penal Code, §22.04; [
and
]
(4) the following, if the administrator or contractor CEO is the perpetrator or alleged perpetrator:
(A) State Hospitals--the Assistant Commissioner for Mental Health Substance Abuse Services, DSHS, Mail Code 2053, P.O. Box 12668, Austin, TX 78711-2668.
(B) State Schools/State Centers--the Director of State Schools, DADS, Mail Code W-511, P.O. Box 149030, Austin, TX 78714-9030.
(C) Community Centers--the:
(i) Chair of the Community Center Board of Trustees;
(ii) Assistant Commissioner for Mental Health and Substance Abuse Services; and
(iii) Assistant Commissioner for Access & Intake, DADS, Mail Code W-350, P.O. Box 149030, Austin, TX 78714-9030.
(D) HCSW Programs--the HCSW CEO/Administrator Designee instead of the CEO/Administrator.
(E) Contractor CEO--the administrator; and
(5)
[
(4)
] the state office of
Adult Protective Services if a confirmed finding is made against a
physician, dentist, pharmacist, registered nurse, licensed vocational
nurse, or other licensed professional. The state office forwards a
copy of the report to the appropriate licensing authority.
(b) Law enforcement or a prosecutor may request that
DFPS
[
PRS
] delay the release of the investigative
report to anyone listed in subsection
(a)(1) or (2)
[
(a)(1),
(2), or (4)
] of this section
, or may request that DFPS
delay forwarding a copy of the report to the appropriate licensing
authority
.
§711.607.Does the investigator reveal the identity of the reporter in the investigative report released to the administrator, contractor CEO, or Consumer Rights and Services [ CSRP ]?
The name of the reporter is released only if the allegation involves sexual exploitation and the perpetrator or alleged perpetrator is a mental health service provider, in accordance with the Texas Civil Practice and Remedies Code, Chapter 81.
§711.611.Is the victim or alleged victim, guardian, or parent notified of the finding?
Yes. The victim or alleged victim, guardian, or parent (if
the victim or alleged victim is a child) is notified of the finding
of the investigation and the method to appeal the finding, in accordance
with the following rules of
DADS and DSHS
[
TDMHMR
]:
(1)
for
state hospitals
[
facilities
]--25
TAC §417.510 (relating to Completion of the Investigation);
(2) for state schools and state centers--40 TAC §7.510 (relating to Completion of the Investigation;
(3)
[
(2)
] for local authorities
and community centers--25 TAC §414.555
and 40 TAC §4.555
(relating
to Information To Be Provided to Victim or Alleged Victim and Others);
or
(4)
[
(3)
] for
HCSW programs
[
HCSWs
]--
40 TAC Chapter 9, Subchapter D (relating to Home
and Community-based Services (HCS) program) and 40 TAC Chapter 9,
Subchapter N (relating to Texas Home Living (TxHmL) program).
[(A) 25 TAC Chapter 419, Subchapter D (relating to Home and Community-based Services (HCS) Program);]
[(B) 25 TAC Chapter 409, Subchapter L (relating to Mental Retardation Local Authority Pilot (MRLA) Program; or]
[(C) 25 TAC Chapter 419, Subchapter P (relating to Home and Community-based Services - OBRA (HCS-O) Program).]
§711.613.Can the investigative report be released?
[
Yes, but any information must be concealed that would
reveal the identities of the reporter and any person served who is
not the victim or alleged victim.
] Upon request, the investigative
report
(with any information concealed that would reveal the
identities of the reporter and any person served who is not the victim
or alleged victim)
may be released [
to
]:
(1) for facilities and their contractors, to the victim or alleged victim, guardian, or parent (if the victim or alleged victim is a child), in accordance with 25 TAC §417.511(b) and 40 TAC §7.511(b) (relating to Confidentiality of Investigative Process and Report), or perpetrator in accordance with 25 TAC §417.512(d) and 40 TAC §7.512(d) (relating to Classifications and Disciplinary Actions);
(2) for local authorities, community centers, and their respective contractors to :
(A) the victim or alleged victim, guardian, or parent (if the victim or alleged victim is a child), in accordance with 25 TAC §414.559(b) and 40 TAC §4.559(b) (relating to Confidentiality of Investigative Process and Report); and
(B) (No change.)
(3) for HCSWs and their contractors,
to
the
victim or alleged victim, guardian, or parent (if the victim or alleged
victim is a child), in accordance with
40 TAC Chapter 9, Subchapter
D (relating to Home and Community-based Services (HCS)) and 40 TAC
Chapter 9, Subchapter N (relating to Texas Home Living (TxHmL) Program).
[
:
]
[(A) 25 TAC Chapter 419, Subchapter D (relating to Home and Community-based Services (HCS);]
[(B) 25 TAC Chapter 409, Subchapter L (relating to Mental Retardation Local Authority Pilot (MRLA) Program); or]
[(C) 25 TAC Chapter 419, Subchapter P (relating to Home and Community-based Services - OBRA (HCS-O) 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 July 26, 2007.
TRD-200703235
Gerry Williams
General Counsel
Department of Family and Protective Services
Earliest possible date of adoption: September 9, 2007
For further information, please call: (512) 438-3437
The amendment is proposed under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services; and HRC §40.021, which provides that the Family and Protective Services Council shall study and make recommendations to the Executive Commissioner and the Commissioner regarding rules governing the delivery of services to persons who are served or regulated by the department.
The amendment implements HRC, Chapter 48, Subchapters F, H, and I.
§711.801.What action does the investigator take if a person served by an HCSW needs emergency services?
(a) - (b) (No change.)
(c) The investigator informs
Consumer Rights and
Services
[
CSRP
] of the investigator's determination
that a person served by an HCSW was in immediate threat of serious
physical harm or death as a result of abuse, neglect, or exploitation,
within 24 hours or the next working day of such determination.
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 July 26, 2007.
TRD-200703236
Gerry Williams
General Counsel
Department of Family and Protective Services
Earliest possible date of adoption: September 9, 2007
For further information, please call: (512) 438-3437
40 TAC §§711.1001 - 711.1003, 711.1005, 711.1007, 711.1009, 711.1011, 711.1013
The amendments and new section are proposed under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services; and HRC §40.021, which provides that the Family and Protective Services Council shall study and make recommendations to the Executive Commissioner and the Commissioner regarding rules governing the delivery of services to persons who are served or regulated by the department.
The amendments and new section implement HRC, Chapter 48, Subchapters F, H, and I.
§711.1001.What if the administrator or contractor CEO wants to request a review of [ challenge ] the finding or the methodology used to conduct the investigation?
(a) The administrator or contractor CEO may request a review of the finding or methodology used to conduct the investigation if he or she is not the perpetrator or alleged perpetrator.
[(1) If the administrator is the perpetrator or alleged perpetrator then only TDMHMR may request a review.]
[(2) If the contractor CEO is the perpetrator or alleged perpetrator then only the administrator may request a review.]
(b) If the administrator is the perpetrator or alleged perpetrator, then the following may request a review:
(1) In facilities, the DADS or DSHS state office.
(2) In community centers, the Chair of the Community Center Board of Trustees.
(3) In HCSW programs, the HCS CEO/Administrator Designee instead of the CEO/Administrator.
(c) If the contractor CEO is the perpetrator or alleged perpetrator, then the administrator may request a review.
[(b) If the alleged perpetrator requests a hearing in accordance with Subchapter O of this chapter (relating to the Employee Misconduct Registry), a request for review will not be accepted and processed unless:]
[(1) the alleged perpetrator withdraws his request for a hearing; or]
[(2) PRS determines prior to the hearing that the alleged act does not meet the criteria for reportable conduct.]
[(c) If the alleged perpetrator requests a hearing in accordance with Subchapter O of this chapter, and the hearing is conducted, a request for review will not be processed.]
§711.1002.How is a request for review affected by a perpetrator's request for an EMR hearing?
If the designated perpetrator requests a hearing in accordance with Subchapter O of this chapter (relating to Employee Misconduct Registry), a request for review will be suspended and the results of the EMR hearing will serve as a finding on the request for review.
§711.1003.How is [ does the administrator or contractor CEO request ] a review as described in §711.1001 of this title (relating to What if the administrator or contractor CEO wants to request a review of the finding or the methodology used to conduct the investigation?) requested ?
To request a review, the administrator or contractor CEO must:
(1) complete
DFPS'
[
PRS's
] "Request
for Review of Finding" form; and
(2) send the completed "Request for Review of Finding" form and a copy of the investigative report as described in §711.603 of this title (relating to What is included in the investigative report?) to:
(A) (No change.)
(B) the
Assistant Commissioner
[
Director
]
of Adult Protective Services,
DFPS
[
PRS
], P.O.
Box 149030, E-561, Austin, Texas, 78714-9030, if the request is to
challenge the finding.
§711.1005.Is there a deadline to request a review?
Yes. The deadline for requesting a review is the 30th calendar
day from the day the report was signed and dated by the investigator.
DFPS
[
PRS
] will not accept a request for review received
after the 30th calendar day from the day the investigative report
was signed and dated by the investigator.
§711.1007.How is the review of a finding conducted?
The review of a finding is conducted by a reviewer, designated
by the
Assistant Commissioner
[
Director
] of
Adult Protective Services, who:
(1) - (4) (No change.)
§711.1009.How is the review of the methodology conducted?
The review of the methodology is conducted by the regional
APS program administrator or a reviewer, designated by the
Assistant
Commissioner
[
Director
] of Adult Protective Services,
who:
(1) - (5) (No change.)
§711.1011.What if the administrator or contractor CEO wants to challenge the methodological review decision(s) made by the regional APS program administrator?
To challenge the methodological review decision, the administrator or contractor CEO must:
(1) complete
DFPS'
[
PRS's
] "Request
for Review of Finding" form; and
(2)
send the completed "Request for Review of Finding"
form and a copy of the investigative report as described in §711.603
of this title (relating to What is included in the investigative report?)
to the
Assistant Commissioner
[
Director
] of
Adult Protective Services,
DFPS
[
TDPRS
], P.O.
Box 149030, E-561, Austin, Texas, 78714-9030.
§711.1013.What if the administrator of a facility disagrees with the finding review decision?
If the administrator or a facility disagrees with the finding review decision, as referenced in §711.1007 of this title (relating to How is the review of a finding conducted?), then he or she may contest the decision in accordance with 25 TAC §417.510(g)(2) and 40 TAC §7.510(g)(2) (relating to Completion of the Investigation).
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 July 26, 2007.
TRD-200703237
Gerry Williams
General Counsel
Department of Family and Protective Services
Earliest possible date of adoption: September 9, 2007
For further information, please call: (512) 438-3437
40 TAC §§711.1203, 711.1205, 711.1207
The amendments are proposed under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services; and HRC §40.021, which provides that the Family and Protective Services Council shall study and make recommendations to the Executive Commissioner and the Commissioner regarding rules governing the delivery of services to persons who are served or regulated by the department.
The amendments implement HRC, Chapter 48, Subchapters F, H, and I.
§711.1203.How does the reporter, victim or alleged victim, legal guardian or parent, or Advocacy, Inc. request an appeal?
An appeal is requested by:
(1) submitting a request in writing to the
Assistant
Commissioner
[
Director
] of Adult Protective Services,
[
Texas
] Department of
Family and
Protective
[
and Regulatory
] Services, P.O. Box 149030, E-561, Austin,
Texas, 78714-9030; or
(2)
calling
DFPS
[
PRS
] toll-free
at 1-888-778-4766.
§711.1205.Is there a deadline to request an appeal?
Yes. The deadline for requesting an appeal of the finding is
the 60th calendar day from the day the investigative report was signed
and dated by the investigator.
DFPS
[
PRS
] may
accept a request for appeal after the 60th calendar day for good cause
as determined by
DFPS
[
PRS
] (for example, difficulty
accessing a copy of the investigative report).
§711.1207.How is the appeal conducted?
The appeal of a finding is conducted by a reviewer, designated
by the
Assistant Commissioner
[
Director
] of
Adult Protective Services, who:
(1) - (3) (No change.)
(4) notifies the following individuals in writing of the appeal decision:
(A) the requestor; [
and
]
(B) the victim or alleged victim, guardian, or parent (if the victim is a child); and
(C)
[
(B)
] as appropriate, the
administrator, contractor CEO, or
Consumer Rights and Services
[
CSRP
].
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 July 26, 2007.
TRD-200703238
Gerry Williams
General Counsel
Department of Family and Protective Services
Earliest possible date of adoption: September 9, 2007
For further information, please call: (512) 438-3437
(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 Family and Protective Services or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeal is proposed under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services; and HRC §40.021, which provides that the Family and Protective Services Council shall study and make recommendations to the Executive Commissioner and the Commissioner regarding rules governing the delivery of services to persons who are served or regulated by the department.
The repeal implements HRC, Chapter 48, Subchapters F, H, and I.
§711.1209.What happens at the conclusion of the appeal?
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 July 26, 2007.
TRD-200703239
Gerry Williams
General Counsel
Department of Family and Protective Services
Earliest possible date of adoption: September 9, 2007
For further information, please call: (512) 438-3437
40 TAC §§711.1401, 711.1405, 711.1407, 711.1411, 711.1413, 711.1415, 711.1417, 711.1419, 711.1421, 711.1425, 711.1427, 711.1429, 711.1431, 711.1433, 711.1435
The amendments are proposed under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services; and HRC §40.021, which provides that the Family and Protective Services Council shall study and make recommendations to the Executive Commissioner and the Commissioner regarding rules governing the delivery of services to persons who are served or regulated by the department.
The amendments implement HRC, Chapter 48, Subchapters F, H, and I.
§711.1401.What is the purpose of this subchapter?
The purpose of this subchapter is to implement Human Resources
Code, Chapter 48, Subchapter I, relating to the Employee Misconduct
Registry maintained by the Texas Department of
Aging and Disability
[
Human
] Services.
§711.1405.How are some of the terms in this subchapter defined?
The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise:
(1) Commissioner--The commissioner of the Department of Family and Protective Services (DFPS), or the commissioner's designee.
(2)
[
(1)
] Employee--A person
who:
(A) works for an agency as defined in Human Resources Code, §48.401(1);
(B) works as an employee, agent, or contractor for a home and community support services agency (HCSSA) or HCSW;
(C) provides personal care services, active treatment, or any other personal services to an individual receiving services from a HCSSA or HCSW; and
(D) is not licensed by the state to perform the services the person performs for the HCSSA or HCSW.
(3)
[
(2)
] Employee Misconduct
Registry--The registry established under Health and Safety Code, Chapter
253.
[
(3)
Executive director--The executive
director of the Texas Department of Protective and Regulatory Services
(PRS), or the executive director's designee.
]
(4)
Hearings examiner--A
DFPS
[
PRS
]
attorney designated to conduct a hearing to appeal a finding of reportable
conduct.
(5) - (6) (No change.)
§711.1407.What is the Employee Misconduct Registry?
The Employee Misconduct Registry is a database maintained by
the Texas Department of
Aging and Disability
[
Human
]
Services that contains the names of persons who have committed reportable
conduct. A person whose name is recorded in the registry is prohibited
by law from working for certain facilities or agencies, as provided
under Health and Safety Code, Chapter 253, and Health and Safety Code, §250.003(c).
§711.1411.Under what circumstances does DFPS [ PRS ] submit an employee's name to the Employee Misconduct Registry?
When
DFPS
[
PRS
] determines that an employee
has committed reportable conduct,
DFPS
[
PRS
]
must submit the employee's name and other relevant information to
the Texas Department of
Aging and Disability
[
Human
]
Services for recording in the Employee Misconduct Registry, unless
the finding of reportable conduct is overturned as a result of an
appeal filed under this subchapter.
§711.1413.Is DFPS [ PRS ] required to give notice of finding of reportable conduct to the employee before the employee's name is submitted to the Employee Misconduct Registry?
(a) Yes. When APS determines that an employee committed reportable conduct, APS must mail a written "Notice of Finding" to the employee's last known address by both certified mail, return receipt requested, and by regular mail. The notice must include:
(1) - (2) (No change.)
(3)
a statement that
DFPS
[
PRS
]
will submit the employee's name for inclusion in the Employee Misconduct
Registry if the employee accepts the finding of reportable conduct
or fails to file a timely Request for Hearing;
(4) - (5) (No change.)
(b) - (c) (No change.)
§711.1415.How does an employee file a Request for Hearing and what happens if a request is not filed or not filed properly?
(a) (No change.)
(b)
The employee will be deemed to have accepted the
finding of reportable conduct and
DFPS
[
PRS
]
will submit the employee's name for inclusion in the Employee Misconduct
Registry if the employee:
(1) (No change.)
(2)
files a Request for Hearing, but fails to follow
the filing instructions and, as a result,
DFPS
[
PRS
]
does not receive the Request for Hearing in a timely manner or cannot
determine the matter being appealed.
§711.1417.What is the deadline for filing the Request for Hearing?
(a) - (b) (No change.)
(c)
If the Request for Hearing is submitted by mail,
the envelope must be postmarked no later than 30 days after the date
the employee received the Notice of Finding. If the Request for Hearing
is hand-delivered or submitted by fax, the request must be received
in the appropriate
DFPS
[
PRS
] office by 5:00
p.m., no later than 30 days from the date the employee received the
Notice of Finding.
(d)
If an employee files the Request for Hearing after
the deadline,
DFPS
[
PRS
] will notify the employee
that the request was not filed by the deadline and that the employee's
name will be submitted for inclusion in the Employee Misconduct Registry.
(e)
If an employee disputes the fact that the Request
for Hearing was filed late, the employee may request, and
DFPS
[
PRS
] will grant, a hearing that is limited solely to the issue
of whether the Request for Hearing was filed on time. If, as a result
of that hearing, the employee can prove that the original Request
for Hearing was filed on or before the deadline, a separate hearing
will be scheduled as soon as possible on the issue of whether the
employee committed reportable conduct.
§711.1419.Is a finding of reportable conduct ever reversed without conducting a hearing?
Prior to a hearing, APS, in its sole discretion, may designate
a person to conduct a review of the investigation records. If a review
of the records results in a reversal of the finding of reportable
conduct, APS will send the employee a new Notice of Finding, which
will indicate that the employee's name will not be submitted to the
Employee Misconduct Registry. If the review does not result in a reversal
of the finding
DFPS
[
PRS
] will designate a hearings
examiner to schedule and conduct a hearing, as described in this subchapter.
§711.1421.When and where will the hearing take place?
(a)
DFPS
[
PRS
] will schedule
a hearing as soon as possible and will send a "Notice of Hearing"
to the employee and to APS within 45 days of when
DFPS
[
PRS
] receives a timely Request for Hearing.
(b) (No change.)
(c) The hearing will usually be held in the same
DFPS
[
PRS
] region where the alleged reportable conduct
took place. The hearings examiner reserves the right to take all or
some of the testimony at the hearing by telephone- or video-conference
and may consider a request by any party to have the hearing conducted
in a different location for good cause.
§711.1425.May an employee withdraw a Request for Hearing after it is filed?
Yes. An employee may withdraw a Request for Hearing any time
before the hearing is conducted. An employee who withdraws a Request
for Hearing will be deemed to have accepted the finding of reportable
conduct and
DFPS
[
PRS
] will submit the employee's
name for inclusion in the Employee Misconduct Registry.
§711.1427.How is the hearing conducted?
(a) - (j) (No change.)
(k) The hearing will be recorded by audio or video
tape in order to preserve a record of the hearing.
DFPS
[
PRS
] will not prepare a transcription of the hearing tape unless
an employee seeks judicial review, as provided in this subchapter.
(l) If the employee fails to appear for the hearing
to offer testimony and evidence, the employee will be deemed to have
accepted the finding of reportable conduct and
DFPS
[
PRS
]
will submit the employee's name for inclusion in the Employee Misconduct
Registry.
§711.1429.How and when is the decision made after the appeal hearing?
(a) The hearings examiner will prepare a proposed decision
which includes findings of fact and conclusions of law based on a
preponderance of the evidence presented at the hearing. The proposed
decision will be forwarded to the
commissioner
[
executive
director
] for review.
(b)
The
commissioner
[
executive director
]
may accept or reject the proposed decision in whole or in part. If
deemed necessary for a proper decision, the
commissioner
[
executive director
] may question the hearings examiner regarding
the testimony and evidence presented at the hearing, may review all
or part of the hearing record, and may direct the hearings examiner
to take such additional testimony or evidence as the
commissioner
[
executive director
] deems necessary.
(c) After review of the proposed decision and any evidence
described in subsection (b) of this section, the
commissioner
[
executive director
] must issue a written "Hearing Order" which
will be mailed to the employee at the employee's last known mailing
address. The Hearing Order must contain the following:
(1) - (2) (No change.)
(3) a statement that the finding of reportable conduct
will be forwarded to the Texas Department of
Aging and Disability
[
Human
] Services to be recorded in the Employee Misconduct Registry
unless the employee makes a timely request for judicial review and
the court reverses the finding of reportable conduct.
(d)
The
commissioner
[
executive director
]
may designate a Hearing Order to be published in an Index of Hearing
Orders that are deemed to have precedential authority for guiding
future decisions and
DFPS
[
PRS
] policy. A Hearing
Order must be edited to remove all personal identifying information
before publication in the Index of Hearing Orders.
§711.1431.How is judicial review requested and what is the deadline?
(a) - (c) (No change.)
(d) Unless notice of petition for judicial review is served on
DFPS
[
PRS
] within 45 days after the
date on which the Hearing Order is mailed to the employee,
DFPS
[
PRS
] will submit the employee's name for inclusion in the Employee
Misconduct Registry. If valid service is received after the employee's
name has been recorded in the registry,
DFPS
[
PRS
]
will immediately request that the employee's name be removed from
the registry pending the outcome of the judicial review.
§711.1433.Must DFPS [ PRS ] provide notice to anyone else if a finding is modified or reversed as the result of a review, a hearing, or judicial review?
(a) Yes. If at any stage the finding of reportable
conduct is modified or reversed,
DFPS
[
PRS
]
must provide notice of the new finding to all entities that
DFPS
[
PRS
] notified of the original finding.
(b) (No change.)
§711.1435.If an employee accepts a finding of reportable conduct or the finding is upheld on appeal, what information is forwarded to the Texas Department of Aging and Disability [ Human ] Services for recording in the Employee Misconduct Registry?
By law,
DFPS
[
PRS
] must forward the following
information to be recorded in the registry:
(1) - (3) (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 July 26, 2007.
TRD-200703240
Gerry Williams
General Counsel
Department of Family and Protective Services
Earliest possible date of adoption: September 9, 2007
For further information, please call: (512) 438-3437
The Health and Human Services Commission (HHSC) proposes, on behalf of the Department of Family and Protective Services (DFPS), amendments to §§732.105, 732.240, 732.241, and 732.243, concerning are all contracting procedures and criteria contained in this chapter, what are the general principles of allowable and unallowable costs, what happens if a cost is not allowable, and employee compensation; and the repeal of §732.256, concerning unallowable costs, in its Contracted Services chapter. The purpose of the amendments and repeal is to state that DFPS' residential child-care contracts are subject to the HHSC rules found in 1 TAC Chapter 355, Reimbursement Rates; and clarify that the DFPS rules relating to allowable and unallowable costs do not apply to DFPS residential child-care contracts.
A new subsection (c) is added to §732.105 to clarify that allowable and unallowable costs for residential child-care contracts are governed by the HHSC rules, the reference to §732.256 is deleted, and the term "executive director" is changed to "commissioner."
A new subsection (j) is added to §732.240 to clarify that allowable and unallowable costs for residential child-care contracts are governed by the HHSC rules.
In §732.241, subsection (b) is deleted because the information applies to "improper payments," which is already covered in §732.303(a) of this title (relating to Recoupment of Improper Payments).
In §732.243 the reference to §732.256 is deleted and the agency name is updated.
Section 732.256 is repealed because the rules relating to allowable and unallowable costs for residential child-care contracts are governed by the HHSC rules, and this rule is no longer applicable.
Cindy Brown, Chief Financial Officer of DFPS, has determined that for the first five-year period the proposed sections will be in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the sections.
Ms. Brown also has determined that for each year of the first five years the sections are in effect the public benefit anticipated as a result of enforcing the sections will be that the information regarding allowable and unallowable costs relating to residential child-care contracts will be clarified. There will be no effect on large, small, or micro-businesses because the proposed change does not impose new requirements on any business and does not require the purchase of any new equipment or any increased staff time in order to comply. There is no anticipated economic cost to persons who are required to comply with the proposed sections.
HHSC has determined that the proposed amendments and repeal do 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, do not constitute a taking under §2007.043, Government Code.
Questions about the content of the proposal may be directed to Liz Garbutt at (512) 929-6803 in DFPS's Contract Oversight and Support Division. Electronic comments may be submitted to Marianne.Mcdonald@dfps.state.tx.us. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-367, Department of Family and Protective Services E-611, P.O. Box 149030, Austin, Texas 78714-9030, within 30 days of publication in the Texas Register.
Subchapter A. GENERAL PROCEDURES
The amendment is proposed under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services; and HRC §40.021, which provides that the Family and Protective Services Council shall study and make recommendations to the Executive Commissioner and the Commissioner regarding rules governing the delivery of services to persons who are served or regulated by the department.
The amendment implements Government Code §2155.144.
§732.105.Are all contracting procedures and criteria contained in this chapter?
(a) - (b) (No change.)
(c) The determination of allowable and unallowable costs for residential child-care contracts is governed by 1 TAC Chapter 355 (relating to Reimbursement Rates).
(d)
[
(c)
] The rules of the Health
and Human Services Commission do not apply to the following transactions:
(1) the lease, purchase, or lease-purchase of real property;
(2) the award of grants; or
(3) interstate or international agreements executed in accordance with applicable law.
(e)
[
(d)
] Other rules of this
Department provide additional procedures, criteria, and requirements
concerning specific types of contracts or specific stages of the contract
process. For example, Chapter 700 of this title (relating to Child
Protective Services) contains additional procedures, criteria, and
requirements concerning contracts for residential child care, and
Chapter 730 of this title (relating to Legal Services) contains procedures,
criteria, and requirements concerning hearings.
(f)
[
(e)
] The
commissioner
[
Executive Director
] or designee may adopt policies to guide
the Department concerning contracting. The policies may interpret
statutes, rules, or contract provisions; however, they do not create
any new rights or responsibilities for any client or contractor unless
the person agrees in writing. The Department may enforce the policies
against employees and any person who has agreed to implement the policies.
The
commissioner
[
Executive Director
] or designee
may waive policies but may not waive rules.
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 July 26, 2007.
TRD-200703241
Gerry Williams
General Counsel
Department of Family and Protective Services
Earliest possible date of adoption: September 9, 2007
For further information, please call: (512) 438-3437
40 TAC §§732.240, 732.241, 732.243
The amendments are proposed under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services; and HRC §40.021, which provides that the Family and Protective Services Council shall study and make recommendations to the Executive Commissioner and the Commissioner regarding rules governing the delivery of services to persons who are served or regulated by the department.
The amendments implement Government Code §2155.144.
§732.240.What are the general principles of allowable and unallowable costs?
(a) In cost reimbursement contracts, the Department
reimburses its contractors only for costs (both direct and indirect)
which are allowable, reasonable, necessary, and properly allocated
to the specific contract. The cost guidelines, principles, and definitions
for allowable and unallowable costs (both direct and indirect) for
purposes of preparing budgets, for expenditure purposes, and for cost-reporting
purposes are the same. Those guidelines are published in federal and
state regulations. Contractors receiving Title IV-E funding on a cost
reimbursement basis are required to be in compliance with 45 Code
of Federal Regulations (CFR) Part 74 and 48 CFR Part 31 regarding
the use and expenditure of Title IV-E funds. Contractors receiving
Title IV-B funding on a cost reimbursement basis are required to be
in compliance with 45 CFR Part 92 regarding the use and expenditure
of Title IV-B funds. All purchased client services contractors (both
for-profits and nonprofits) who have cost reimbursement contracts
are required to be in compliance with Office of Management and Budget
(OMB) Circular A-110 (Uniform Administrative Requirements for Grants
and Agreements with Institutions of Higher Education, Hospitals and
Other Non-Profit Organizations) and this section and
§§732.242-732.255
[
§§732.242-732.256
] of this title (relating
to Contract Administration) regarding the guidelines for use and expenditure
of funds received from the Department, which consist of federal and/or
state revenues. If the contractor is a governmental entity, the contractor
shall remain in compliance with OMB Circular A-87 (Cost Principles
for State and Local Governments). If the contractor is either a for-profit
entity or a nonprofit entity, the contractor is required to be in
compliance with OMB Circular A-122 (Cost Principles for Nonprofit
Organizations). In the event of any conflict or contradiction between
or among the regulations referenced in this subsection, the regulations
shall control in the following order of precedence:
(1) - (2) (No change.)
(3) state regulations - this section, §732.241
of this title (relating to What happens if a cost is not allowable?)
and
§§732.242-732.255
[
§§732.242-732.256
] of this title (relating to Contract Administration); and
(4) (No change.)
(b) - (i) (No change.)
(j) This rule section does not apply to residential child-care contracts because the principles of allowable and unallowable costs for residential child-care contracts are governed by 1 TAC Chapter 355 (relating to Reimbursement Rates).
§732.241.What happens if a cost is not allowable?
[
(a)
]
The Department regularly reviews
bills and monitors or audits contracts. If, at any time, it appears
to the Department that a cost claimed for reimbursement pursuant to
a cost reimbursement contract is unallowable for any reason (unreasonable,
unnecessary, not properly allocated, not in the approved budget, or
specifically unallowable), the cost may be questioned and possibly
disallowed as provided in other rules in this chapter. If the contractor
incurred other legitimate costs pursuant to the contract and budget,
or pursuant to the contract and the Department agrees to allow a minor
amendment to the budget, the contract amount or payment to the contractor
does not need to be decreased. The contractor must provide convincing
evidence of these other legitimate costs during the process of the
costs being questioned or disallowed. However, the Department may,
in its sole discretion, consider such additional costs after the costs
have been disallowed and before collection of excess payments.
[
(b)
Residential contract
rates are set as an average to assure that costs to the Department
are reasonable for federal funding purposes, and it is expected that
one-half of the contractors will report individual costs lower than
this average. The Department will not expect repayment by residential
contractors for costs claimed below the rate or for disallowed costs
unless the contractor:]
[
(1)
was not entitled to the number of days
or level-of-care rates paid because of the contract; or]
[
(2)
has breached the contract.]
§732.243.Employee Compensation.
(a) (No change.)
(b) A contractor must:
(1) - (4) (No change.)
(5) provide job descriptions when required by the Texas
Department of
Family and
Protective [
and Regulatory
]
Services
(DFPS)
[
(TDPRS)
] and only hire or promote
people who meet job qualifications.
(c) (No change.)
(d) Contractors substantially engaged in activities
other than the services for which
DFPS
[
TDPRS
]
is contracting must provide compensation for employees engaged in
contract services that is comparable to compensation for other comparable
contractor activities. The contractor also must provide compensation
to employees that is considered reasonable and comparable to the compensation
paid for similar work in the labor market in which the contractor
competes for the kind of employees involved.
(e) Overtime is allowable as a cost to
DFPS
[
TDPRS
] only under the following conditions:
(1) - (3) (No change.)
(f) (No change.)
(g) Merit raises or other additional compensation reimbursed by
DFPS
[
TDPRS
] and instituted by a contractor
must meet the following requirements:
(1) - (2) (No change.)
(h) (No change.)
(i) A contractor may be reimbursed for budget costs
incurred by its employees (who are providing services under the contract)
for travel including mileage, food, and lodging costs and travel-related
expenses in a cost reimbursement contract. However, the budget for
the cost reimbursement contract must follow the requirements in §732.239
of this title (relating to Budget Changes), §732.240 of this
title (relating to General Principles of Allowable and Unallowable
Costs), and
§§732.242-732.255
[
§§732.242-732.256
] of this title (relating to Contract Administration).
(1) (No change.)
(2) Mileage. Allowable reimbursement for mileage is
computed on a per mile rate, not exceeding the current mileage reimbursement
rate set by the Texas Legislature for state employee travel. For audit
purposes, contractors must keep copies of travel forms that
DFPS
[
TDPRS
] approved in writing. Contractors may reimburse staff
at rates in excess of those currently in effect for state employees
if the contractor pays the difference.
DFPS
[
TDPRS
]
will not pay for the difference in mileage rate.
(3) - (6) (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 July 26, 2007.
TRD-200703242
Gerry Williams
General Counsel
Department of Family and Protective Services
Earliest possible date of adoption: September 9, 2007
For further information, please call: (512) 438-3437
(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 Family and Protective Services or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeal is proposed under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services; and HRC §40.021, which provides that the Family and Protective Services Council shall study and make recommendations to the Executive Commissioner and the Commissioner regarding rules governing the delivery of services to persons who are served or regulated by the department.
The repeal implements Government Code §2155.144.
§732.256.Unallowable Costs.
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 July 26, 2007.
TRD-200703243
Gerry Williams
General Counsel
Department of Family and Protective Services
Earliest possible date of adoption: September 9, 2007
For further information, please call: (512) 438-3437