Part 1.
DEPARTMENT OF AGING AND DISABILITY SERVICES
Chapter 9.
MENTAL RETARDATION SERVICES--MEDICAID STATE OPERATING AGENCY RESPONSIBILITIES
Subchapter D. HOME AND COMMUNITY-BASED SERVICES (HCS) PROGRAM
40 TAC §§9.153, 9.154, 9.161, 9.164 - 9.168, 9.170, 9.174, 9.175
The Health and Human Services Commission (HHSC), on behalf
of the Department of Aging and Disability Services (DADS), adopts amendments
to §§9.153, 9.154, 9.161, 9.164 - 9.168, 9.170, 9.174, and 9.175,
in Chapter 9, Subchapter D, governing the Home and Community-based Services
(HCS) Program. The amendment to §9.170 is adopted with changes to the
proposed text published in the September 15, 2006, issue of the
Texas Register
(31 TexReg 7923). The amendments to §§9.153,
9.154, 9.161, 9.164 - 9.168, 9.174, and 9.175 are adopted without changes
to the proposed text.
The amendments are adopted in part to allow an individual receiving services
through the HCS Program to participate in the consumer directed services (CDS)
option. Texas Government Code, §531.051, requires HHSC to develop a program
in which the use of vouchers is available as a payment option for the delivery
of certain services to persons with disabilities, including Medicaid services.
Further, Texas Government Code, §531.052, established a CDS workgroup
composed of representatives from various health and human services agencies
to develop and implement the voucher payment program. In response to the requirement
in §531.051, rules were adopted regarding vendor fiscal intermediary
payments that applied to certain community care programs. House Bill 2292,
78th Texas Legislature, Regular Session, 2003, added §32.066 of the Texas
Human Resources Code, which requires HHSC to establish a consumer directed
services program in which individuals enrolled in Medicaid waiver programs
direct the delivery of program services. In addition, the CDS workgroup required
by §531.052 recommended the expansion of the CDS option to include the
HCS and Texas Home Living (TxHmL) programs operated by DADS. Amendments that
expand the CDS option to individuals in the TxHmL Program are adopted elsewhere
in this issue of the
Texas Register
.
The CDS option is a service delivery option in which an individual or legally
authorized representative (LAR) employs and retains service providers and
directs the delivery of program services. An individual choosing to participate
in the CDS option is supported by a consumer directed services agency (CDSA)
chosen by the individual to provide financial management services, and, at
the individual's request, support consultation. Support consultation services
may also be provided by a contractor that is retained by the employer in the
CDS option. The adopted rules specify the services available for self-direction,
add support consultation and financial management to the array of HCS Program
services, and specify provider and mental retardation authority (MRA) requirements,
including those regarding informing an individual and LAR of the individual's
right to participate in the CDS option and the procedures for recommending
that an individual discontinue participation in the CDS option.
The amendments are also adopted to revise the notification procedures and
time frames for applicants seeking to enroll in the HCS Program and to require
an applicant who has indicated an interest in enrolling in the HCS Program
to complete the necessary enrollment activities within specified time frames
or be removed from the HCS Program waiting list.
Regarding the person-directed planning process that occurs during enrollment,
the adopted rules clarify that the enrollment person-directed plan (PDP) addresses
issues related to HCS enrollment, such as the services and supports an applicant
will receive in the HCS Program and outcomes to be achieved by the applicant.
The adopted rules also require an enrollment PDP to include a description
of actions necessary to protect the health and welfare of the applicant upon
initiation of services. This provision replaces the current rule provision
that requires the PDP to include a description of actions and methods, projected
completion dates, and the person or persons responsible for completion.
Finally, the amendments are adopted to amend the billing requirements in
the HCS Program. The amendment to §9.170 permits DADS to require a program
provider to develop and submit, in accordance with DADS instructions, a corrective
action plan that improves the program provider's billing practices. The amendments
to §9.170 and §9.174 also place current billing practices into rule,
remove inconsistencies, replace references to the
HCS Service Definitions and Billing Guidelines
with references to the
DADS received written comments from the Mission Road Developmental Center,
J-MAG Enterprises, All the Little Things Count, Mosaic, the Private Providers
Association of Texas (PPAT), and an HCS provider in the San Antonio area.
A summary of the comments and the responses follow.
Comment: Four commenters stated that implementing the CDS option in the
HCS Program creates confusion by duplicating existing processes. The commenters
recommended that the rules be clarified to provide clear delineation of the
responsibilities of the case manager, support advisor, individual, and CDSA.
Response: The commenters did not specify which existing HCS Program processes
they believed were duplicated by the CDS option, but the agency directs the
commenters to new Chapter 41, Consumer Directed Services Option, for a clear
delineation of the responsibilities of all parties involved in the delivery
of services under the CDS option. This chapter makes clear that the CDS option
does not duplicate existing HCS Program processes. The rule language was not
changed in response to the comment.
Comment: Two commenters stated that the CDS option does not have a system
for oversight and control of direct service providers employed by individuals
and relies heavily on the individual and family members to assume the role
of a responsible employer.
Response: The agency agrees that the CDS option involves the individual
and family members assuming the role of the responsible employer but disagrees
with the commenters' statement that the CDS option does not have a system
of oversight and control of direct service providers. The agency directs the
commenters to new Chapter 41 for details about the oversight responsibilities
regarding an employee of an individual or LAR, designated representative (DR),
and a CDSA. In addition, the agency explains that Chapter 41, Subchapter H,
states that DADS oversees the roles and responsibilities of the individual
or LAR, DR, and CDSA. The rule language was not changed in response to the
comment.
Comment: Two commenters expressed opposition to implementing the CDS option
in the HCS program, stating that the time and effort expended toward making
this change would be better devoted to improving the HCS Program. The commenters
believe that adding the CDS option will increase administrative costs for
HCS providers, add an additional level of bureaucracy with the CDSA, and open
the door for more corruption and poorer quality of service.
Response: The agency disagrees with the commenters' statements and responds
that for individuals and family members who want greater choice in the selection
of direct service providers, control over how services are delivered, and
flexibility in setting wages and benefits of direct service providers, the
CDS option represents a significant improvement to the HCS Program. The agency
explains that during the past five years, DADS has successfully implemented
the CDS option in four Medicaid waiver programs: Community Living Assistance
and Support Services and Deaf-Blind Multiple Disabilities in 2001; Community
Based Alternatives in 2003; and Medically Dependent Children Program in 2006.
In addition, DADS has offered the CDS option in Consumer Managed Personal
Assistance Services since 2001 and in Primary Home Care since 2002. House
Bill 2292, 78th Texas Legislature, Regular Session, 2003, added §32.066
of the Texas Human Resources Code, which requires HHSC to establish a consumer
directed services option in which individuals enrolled in Medicaid waiver
programs direct the delivery of program services. In addition, the CDS workgroup
required by Texas Government Code, §531.052, recommended the expansion
of the CDS option to include the HCS and TxHmL programs operated by DADS.
The rule language was not changed in response to the comment.
Comment: Six commenters disagreed with the assessment that the reduction
in the case manager fee paid to a provider when an individual or LAR selects
the CDS option will not impose an economic burden on providers. The commenters
stated that the fiscal impact cannot be determined until the amount of the
reduction is decided and the CDS rates are established. One of the commenters
stated that any reduction in the already minimal HCS rates, particularly mid-year,
will cause substantial budgeting difficulties for providers, and that sound
business decisions cannot be made regarding the feasibility of providing CDSA
services.
Response: The agency disagrees with the commenters' statement concerning
the case management fee, and explains that the monthly rate paid on behalf
of all individuals receiving HCS Program services includes reimbursement for
case management, administrative, and other operating costs. The case management
component of this monthly rate will not be lowered and will be paid to the
HCS Program provider. Only a portion of the administrative and other operating
costs associated with supported home living and respite services is being
allocated to the budget of the individual who chooses the CDS option. This
allocation occurs because the HCS Program provider will see a reduction in
the direct service delivery, coordination, and oversight of the supported
home living and respite services. The individual or LAR and not the HCS Program
provider is the employer, and the individual or LAR manages the provision
of these services in the CDS option. The agency further explains that the
proposed preamble acknowledged that some providers may lose business as a
result of individuals choosing the CDS option; however, the rules themselves
do not establish requirements that create an economic burden for HCS Program
providers. The rule language was not changed in response to the comment.
Comment: Two commenters stated that CDS has the potential to change the
HCS system to a point where many providers will not be able to sustain financial
viability. The added cost for administering the CDSAs will have to come from
an already underfunded system that cannot afford this added burden.
Response: The agency disagrees with the commenters' statements that there
is an added cost for administering the CDS option and noted that the commenters
do not state the reasons why they believe that the CDS option has the potential
to affect providers' financial viability or why the HCS program is underfunded.
In any event, the agency's position is that the CDS option will not affect
a provider's financial viability because the monthly rate paid to providers
on behalf of the individuals to whom they provide services includes reimbursement
for case management, administrative, and other operating costs. The case management
component of this monthly rate will not be lowered and will be paid to the
HCS Program provider. Only a portion of the administrative and other operating
costs associated with supported home living and respite services are being
allocated to the budget of the individual who chooses the CDS option. This
allocation occurs because the HCS Program provider will see a reduction in
the direct service delivery, coordination, and oversight of the supported
home living and respite services. The individual or LAR and not the HCS Program
provider is the employer, and the individual or LAR manages the provision
of these services under the CDS option. The agency further explains that the
proposed preamble acknowledged that some providers may lose business as a
result of individuals choosing the CDS option; however, the rules themselves
do not establish requirements that create an economic burden for HCS Program
providers. The rule language was not changed in response to the comment.
Comment: One commenter requested a copy of the analysis DADS completed
to determine that "there will be no adverse economic effect on small businesses"
as a result of the administration and implementation of these rules. The commenter
stated that experience with the former Mental Retardation Local Authority
(MRLA) Program and the current Consolidated Waiver Program (CWP), in which
provider responsibilities supposedly were reduced, is evidence that neither
responsibilities nor costs will be reduced. The commenter stated that the
economic impact on providers will be significant with a concomitant potential
to destabilize the provider network.
Response: The agency responds that a formal analysis was not necessary
because the rules do not create an adverse economic effect on small businesses
or micro-businesses, although the proposed preamble acknowledged that some
providers may lose business as a result of individuals choosing the CDS option.
The rule language was not changed in response to the comment.
Comment: Five commenters stated that the CDS option will cause the quality
of services delivered to drop dramatically and will significantly hamper the
ability of the case manager to guarantee the health and safety of the individual.
The commenters stated that the case manager cannot assure the individual's
health and safety when the individual or a designated representative is the
employer.
Response: The agency disagrees that the CDS option will cause a decrease
in the quality of services provided. During the last five years, the CDS option
has been implemented in six community-based programs and there is no evidence
that the services provided through the CDS option are of lower quality than
services provided through the traditional agency option. The CDS option does
not alter a case manager's ability or requirement to monitor the delivery
of waiver services and determine if services are meeting the individual's
needs and are being provided as planned. The rule language was not changed
in response to the comment.
Comment: One commenter questioned how an individual acting as an employer
can be expected to deal with the many requirements placed by laws and regulations
on a business entity, including dealing with taxes.
Response: The agency explains that new Chapter 41 provides that the CDSA
has the responsibility to provide financial management services to assist
the individual or LAR with business-related functions, including dealing with
taxes. The rule language was not changed in response to the comment.
Comment: A commenter stated that the proposal implements another variation
of the HCS Program without evaluation of the current program to determine
strengths and weaknesses. The commenter recommended that DADS develop a long-term
plan for people with developmental disabilities to achieve quality of services
and maximize the efficiency of tax dollars spent.
Response: The agency disagrees with the commenter. The CDS workgroup required
by Texas Government Code, §531.052, evaluated the effectiveness of the
CDS option implemented in six community-based programs operated by the agency
since 2001 and, based on such evaluation, recommended expansion of the CDS
option to the HCS Program. Regarding the recommendation to develop a long-term
plan, the agency responds that this comment is beyond the scope of these rules.
The rule language was not changed in response to the comment.
Comment: One commenter expressed concern that many individuals will not
understand the full scope of the CDS program and as a result will still rely
on service providers or families to make decisions for them just as they do
currently.
Response: The agency responds that the rules clearly state that it is the
responsibility of the MRA to fully explain the CDS option to new enrollees.
For individuals already enrolled in HCS, the responsibility for explaining
CDS falls to the HCS Program provider, who is responsible for providing case
management. The agency expects both the MRA and the program provider to take
these responsibilities seriously, so that an individual understands the CDS
option prior to choosing it as a service delivery option. In addition, as
described in §41.109(e) and (g), an individual or LAR who chooses the
CDS option but who is unable to complete the self-assessment required for
participation must name a DR to assist with or perform the responsibilities
of an employer. The rule language was not changed in response to the comment.
Comment: One commenter expressed concern about the feasibility of the support
consultation services offered in the CDS option. The commenter asked whether
the agency has developed safeguards to prevent the individual or LAR or the
DR from pocketing the funds and expecting the HCS Program provider's case
manager to assist with support consultation responsibilities.
Response: The agency responds that the commenter's concerns are addressed
in new Chapter 41. In the CDS option, funds for support consultation services
are dispensed by the CDSA directly to an eligible, certified support advisor
following receipt of documentation of service delivery. The agency believes
that sufficient safeguards are included in Chapter 41, Subchapter F, to prevent
an individual or LAR or DR from fictitiously employing a support advisor.
The rule language was not changed in response to the comment.
Comment: Concerning §9.170(a)(6)(B), (a)(8)(B), and (a)(8)(D), which
describe the HCS billing requirements governing rejected claims and submission
of corrected claims, a commenter requested the reinstatement of a provision
that permitted a program provider 45 days after the date of notification by
DADS of a rejected claim to submit a corrected claim. The commenter stated
that providers remain concerned about receipt of a late notification from
DADS rejecting a claim because the electronic systems now being used to accept
or deny claims are not infallible.
Response: The agency agrees with the commenter's recommendation and has
made the suggested change to §9.170(a)(6)(B), (a)(8)(B), and (a)(8)(D).
Comment: Concerning §9.170(a)(14)(B) and (a)(15)(A), a commenter questioned
whether each overpayment found as a result of a DADS billing and payment review
will always result in DADS recouping payment from the program provider and
also requiring the program provider to develop and submit a corrective action
plan that improves billing practices.
The commenter also recommended that the agency include general criteria
in rules to provide clarity as to what type of findings will result in the
need for development of a corrective action plan. The commenter further recommended
that the agency include general criteria for an "accepted" corrective action
plan.
Response: The agency agrees with the commenter's recommendations and has
added general criteria to §9.170(a)(14)(B), requiring a corrective action
plan, and language to §9.170(a)(15)(A), regarding the content of a corrective
action plan.
Comment: Concerning §9.170(a)(16), a commenter recommended that time
frames be included for the agency to follow in completing its responsibilities
when a provider is required to submit a corrective action plan.
Response: The agency agrees with the commenter's recommendation and has
made a change to §9.170(a)(16) stating that DADS notifies a program provider
if a corrective action plan is approved or if changes to the plan are required
within 30 calendar days of the corrective action plan being received by DADS.
Comment: Concerning §9.170(a)(18)(A) and (B), which specifies the
action DADS may impose if a provider does not comply with requirements for
a corrective action plan, a commenter described the provisions as vague. The
commenter further stated that the provisions allude to consequences of greater
and lesser severity without providing any objective criteria about when one
remedy or another will be imposed. The commenter explained that this vagueness
leaves providers vulnerable to sanctions being imposed at no fault of their
own, and recommended that DADS: (1) provide a definite time before vendor
hold is imposed, (2) provide clear criteria for when contract termination
will occur, and (3) incorporate time frames to which DADS must adhere.
Response: The agency agrees with the commenter's recommendation and has
amended §9.170(a)(18) and added a new paragraph §9.170(a)(19) to
clarify the circumstances under which DADS may impose a vendor hold or terminate
a program provider agreement if a program provider does not submit the corrective
action plan or complete a corrective action in accordance with such a plan.
Comment: A commenter recommended that the agency aggressively pursue ongoing
cost analysis of the CDS option across all programs to include HCS Program
and evaluate consumer satisfaction with CDS in the HCS Program following implementation.
Response The agency responds that HHSC and the CDS workgroup required by
Texas Government Code, §531.052, will continue to determine the type
and frequency of any analysis of the CDS option. The rule language was not
changed in response to the comment.
Comment: One commenter asked who provides the individual or DR with the
training to be able to train the direct service provider.
Response: The agency responds that an individual or LAR may choose to receive
support consultation as an optional CDS service provided by a support adviser,
as described in Chapter 41. Support consultation is a service that assists
and trains the individual or LAR in meeting the required employer responsibilities
of the CDS option, including training the employee and ensuring successful
delivery of program services. The rule language was not changed in response
to the comment.
Comment: Some commenters expressed concern that, if the CDS option is available
in the HCS Program, a case manager's duties will be increased to assist an
individual or LAR by acting as the employer or the DR while the reimbursement
rate is cut in order to fund CDS.
Response: The agency disagrees with the commenters' statements that the
case manager's duties will be increased to assist the individual or LAR as
an employer and that reimbursement rates have been reduced. The only additional
function of a case manager as a result of the CDS option is the requirement
to explain and offer the CDS option to individuals annually. The monthly rate
that is paid on behalf of all individuals in the HCS Program includes reimbursement
for case management, administrative, and other operating costs. The case management
component of this monthly rate will not be lowered and will be paid to the
HCS Program provider. Only a portion of the administrative and other operating
costs associated with supported home living and respite services are being
allocated to the individual's CDS budget. This allocation occurs because the
HCS Program provider will see a reduction in the direct service delivery,
coordination, and oversight of the supported home living and respite services.
The individual or LAR, and not the HCS Program provider, is the employer and
the individual or LAR manages the provision of these services under CDS. The
rule language was not changed in response to the comment.
Comment: Three commenters expressed displeasure that CDS rates have not
been established. They stated that providers cannot commit to providing a
service without knowing if they will be adequately compensated.
Response: The agency responds that HHSC is responsible for setting rates
for the CDS option and is developing a methodology for establishing those
rates. The rule language was not changed in response to the comment.
Comment: A commenter recommended that the agency subject all forms, related
tools, and guidance materials for use by persons choosing the CDS option to
the same formal public comment process established for rules. The commenter
further recommended that the forms, related tools, and guidance materials
include legal citations as recommended in HHSC's Rider 44
Mental Retardation Services Report
, dated February 2005.
Response: The agency responds that although it may not subject all forms,
related tools, and guidance materials used in the CDS option to the public
comment process used for rules, it will continue to consider stakeholder input
when developing forms and materials. Regarding other forms and manuals, the
agency responds that this comment is beyond the scope of these rules but will
take the commenter's proposal under consideration. The rule language was not
changed in response to the comment.
Comment: One commenter stated that program providers will be held accountable
for services an individual or LAR has elected to receive through the CDS option
and will be "hit with deficiencies" by surveyors.
Response: The agency disagrees with the commenter's assessment and responds
that Chapter 41 places responsibility on the individual or LAR for services
delivered through the CDS option. A program provider will not be cited for
deficiencies regarding services delivered through the CDS option.
Comment: A commenter indicated that it appears that the CDS option is a
duplication of HCS foster/companion care.
Response: The agency responds that by rule the CDS option is available
only to individuals who live in their own home or the home of the individual's
family. The option is not available to individuals residing in a foster care
setting. The rule language was not changed in response to the comment.
The amendments are adopted 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; Texas
Government Code, 531.051, which requires the Health and Human Services Commission
to develop a program in which the use of vouchers is available as a payment
option for the delivery of certain services to persons with disabilities,
including Medicaid services; and Texas Human Resources Code, §32.066
which requires HHSC to establish a consumer-directed services program in which
individuals enrolled in Medicaid waiver programs direct the delivery of program
services.
§9.170.Reimbursement.
(a)
Program provider reimbursement.
(1)
DADS pays the program provider for service components as
follows:
(A)
Case management, supported home living, counseling and
therapies, nursing, respite, and supported employment are paid for in accordance
with the reimbursement rate for the specific service component.
(B)
Foster/companion care, residential support, supervised
living, and day habilitation are paid for in accordance with the individual's
LON and the reimbursement rate for the specific service component.
(C)
Adaptive aids, minor home modifications, and dental treatment
are paid for based on the actual cost of the item.
(2)
The program provider must accept DADS' payment for a service
component as payment in full for the service component.
(3)
If the program provider disagrees with the enrollment date
of an individual as determined by DADS, the program provider must notify DADS
in writing of its disagreement, including the reasons for the disagreement,
within 180 days after the end of the month in which the program provider receives
the enrollment letter. DADS reviews the information submitted by the program
provider and notifies the program provider of its determination regarding
the individual's enrollment date.
(4)
The program provider must prepare and submit claims for
service components in accordance with this subchapter, the HCS Program Provider
Agreement, and the
HCS Program Billing Guidelines
, which are available at http://www.dads.state.tx.us/business/mental_retardation/hcs/index.html.
(5)
The program provider must:
(A)
submit a claim, electronically, to DADS for day habilitation,
foster/companion care, supported home living, residential support, supervised
living, respite, supported employment, case management, counseling and therapies,
and nursing; and
(B)
obtain an authorization for payment from DADS, in accordance
with the
HCS Program Billing Guidelines
and
paragraph (8) of this subsection, and submit a claim, electronically, to DADS
for adaptive aids, minor home modifications, and dental treatment.
(6)
For a service component listed in paragraph (5)(A) of this
subsection, the program provider must:
(A)
submit a claim to DADS by the latest of the following dates:
(i)
within 95 calendar days after the end of the month in which
the service component was provided;
(ii)
within 45 calendar days after the date of the enrollment
approval letter issued by DADS; or
(iii)
within 95 calendar days after the end of the month in
which the program provider receives a dated response denying payment for the
service component from a source other than the HCS Program to a correctly
submitted request to that source for payment for the service component; and
(B)
if DADS rejects a submitted claim, submit a corrected claim
by one of the following dates, whichever is later:
(i)
the 180th calendar day after the end of the month in which
the service component or subcomponent was provided; or
(ii)
the 45th calendar day after the date of the notification
that the claim has been rejected.
(7)
If an individual is temporarily or permanently discharged
from the HCS Program:
(A)
the program provider may submit a claim for day habilitation,
supported home living, respite, supported employment, case management, counseling
and therapies, and nursing for the day of the individual's discharge; and
(B)
the program provider must not submit a claim for foster/companion
care, residential support, or supervised living for the day of the individual's
discharge.
(8)
For a service component listed in paragraph (5)(B) of this
subsection, the program provider must:
(A)
submit a request for authorization for payment to DADS
within 95 days after the end of the month in which:
(i)
the individual received the adaptive aid or dental treatment;
or
(ii)
the minor home modification was completed;
(B)
if DADS rejects a request for authorization for payment,
submit a corrected request for authorization for payment by one of the following
dates, whichever is later:
(i)
the 180th calendar day after the end of the month in which:
(I)
the individual received the adaptive aid or dental treatment;
or
(II)
the minor home modification was completed; or
(ii)
the 45th calendar day after the date of the notification
that the authorization for payment has been rejected;
(C)
after obtaining authorization for payment from DADS, submit
a claim within 45 calendar days after authorization for payment is given by
DADS; and
(D)
if DADS rejects a submitted claim, submit a corrected claim
by one of the following dates, whichever is later:
(i)
the 180th calendar day after the end of the month in which:
(I)
the individual received the adaptive aid or dental treatment;
or
(II)
the minor home modification was completed; or
(ii)
the 45th calendar day after the date of the notification
that the claim has been rejected.
(9)
If the program provider submits a claim for an adaptive
aid or dental treatment, the program provider must submit documentation that
sources of payment other than the HCS Program for which the individual may
be eligible, including Medicare, Medicaid (such as Texas Health Steps and
Home Health), DARS, the public school system, and private insurance, denied
the submitted claim. Such documentation includes evidence that a proper, complete,
and timely request for payment was made to the other payment source and that
payment was not made.
(10)
If the program provider submits a claim for an adaptive
aid that costs $500 or more or for a minor home modification that costs $1000
or more, the program provider must submit an individualized assessment conducted
by a professional qualified to assess whether the aid or modification is necessary
and appropriate to address the individual's specific needs.
(11)
DADS does not pay the program provider for a service component
or recoups any payments made to the program provider for a service component
if:
(A)
the individual receiving the service component is, at the
time the service component was provided, ineligible for the HCS program or
Medicaid benefits, or was an inpatient of a hospital, nursing facility, or
ICF/MR;
(B)
the service component is provided to an individual during
a period of time for which the program provider does not provide a signed
and dated IPC for the individual;
(C)
the service component is not included on the signed and
dated IPC of the individual in effect at the time the service component was
provided;
(D)
the service component provided does not meet the service
definition or is not provided in accordance with the
HCS Program Billing Guidelines
;
(E)
the program provider provides the supervised living or
residential support service component in a residence in which four individuals
or other person receiving similar services live without DADS' approval as
required in §9.188 of this subchapter (relating to DADS' Approval of
Residences);
(F)
the service component is not documented in accordance with
the
HCS Program Billing Guidelines
;
(G)
the claim for the service component is not prepared and
submitted in accordance with the
HCS Program Billing
Guidelines
;
(H)
an individualized assessment as required by paragraph (10)
of this subsection is not submitted by the program provider;
(I)
DADS determines that the service component would have been
paid for by a source other than the HCS Program if the program provider had
submitted to the other source a proper, complete, and timely request for payment
for the service component;
(J)
the service component is provided during a period of time
for which the program provider does not provide a signed and dated MR/RC Assessment
for the individual;
(K)
the service component is provided during a period of time
for which the individual did not have an LOC determination;
(L)
the service component is provided by a service provider
who does not meet the qualifications to provide the service component as delineated
in the
HCS Program Billing Guidelines
;
(M)
the service component is not provided in accordance with
a signed and dated IPC meeting the requirements set forth in §9.157 of
this subchapter (relating to Individual Plan of Care);
(N)
the service component is not provided in accordance with
the plan for services described in the individual's ISP, staffing summary
or enrollment PDP;
(O)
the service component of foster/companion care, residential
support, or supervised living is provided on the day of the individual's temporary
or permanent discharge from the HCS Program;
(P)
the service component is provided before the individual's
enrollment date into the HCS Program; or
(Q)
the service component was paid at an incorrect LON because
the MR/RC Assessment electronically transmitted to DADS does not contain information
identical to information on the signed MR/RC Assessment.
(12)
The program provider must keep any records necessary to
disclose the extent of the service components provided by the program provider
and, on request, provide DADS any such records and any information regarding
claims filed by the program provider.
(13)
The program provider must refund to DADS any overpayment
made to the program provider within 60 days after the program provider's discovery
of the overpayment or receipt of a notice of such discovery from DADS, whichever
is earlier.
(14)
DADS conducts billing and payment reviews to monitor a
program provider's compliance with this subchapter and the
HCS Program Billing Guidelines
. DADS conducts such reviews in accordance
with the Billing and Payment Review Protocol set forth in the
HCS Program Billing Guidelines
. As a result of a billing and payment
review, DADS may:
(A)
recoup payments from a program provider; and
(B)
based on the amount of unverified claims, require a program
provider to develop and submit, in accordance with DADS instructions, a corrective
action plan that improves the program provider's billing practices.
(15)
A corrective action plan required by DADS in accordance
with paragraph (14)(B) of this subsection must:
(A)
include:
(i)
the reason the corrective action plan is required;
(ii)
the corrective action to be taken;
(iii)
the person responsible for taking each corrective action;
and
(iv)
a date by which the corrective action will be completed
that is no later than 90 calendar days after the date the program provider
is notified the corrective action plan is required;
(B)
be submitted to DADS within 30 calendar days after the
date the program provider is notified the corrective action plan is required;
and
(C)
be approved by DADS before implementation.
(16)
Within 30 calendar days of the corrective action plan
being received by DADS, DADS notifies the program provider if a corrective
action plan is approved or if changes to the plan are required.
(17)
If DADS requires a program provider to develop and submit
a corrective action plan in accordance with paragraph (14)(B) of this subsection
and the program provider requests an administrative hearing for the recoupment
in accordance with §9.180 of this subchapter (relating to Program Provider's
Right to Administrative Hearing), the program provider is not required to
develop or submit a corrective action plan while a hearing decision is pending.
DADS notifies the program provider if the requirement to submit a corrective
action plan or the content of such a plan changes based on the outcome of
the hearing.
(18)
If the program provider does not submit the corrective
action plan or complete the required corrective action within the time frames
described in paragraph (15) of this subsection, DADS may impose a vendor hold
on payments due to the program provider under the program provider agreement
until the program provider takes the corrective action.
(19)
If the program provider does not submit the corrective
action plan or complete the required corrective action within 30 calendar
days after the date a vendor hold is imposed in accordance with paragraph
(18) of this subsection, DADS may terminate the program provider agreement.
(b)
CDSA reimbursement. For an individual participating in
CDS, DADS pays the CDSA for the following service components in accordance
with the reimbursement rate established by HHSC:
(1)
financial management services;
(2)
support consultation, if requested by the individual or
LAR;
(3)
supported home living, if the individual or LAR chooses
it to be provided through CDS; and
(4)
respite, if the individual or LAR chooses it to be provided
through CDS.
This agency hereby certifies that the adoption has been
reviewed by legal counsel and found to be a valid exercise of the agency's
legal authority.
Filed with the Office of
the Secretary of State on January 22, 2007.
TRD-200700155
Kenneth L. Owens
General Counsel
Department of Aging and Disability Services
Effective date: March 1, 2007
Proposal publication date: September 15, 2006
For further information, please call: (512) 438-3162
The Health and Human Services Commission (HHSC), on behalf of the
Department of Aging and Disability Services (DADS), adopts amendments to §§9.553
- 9.563, 9.567, 9.568, 9.570, 9.571, 9.573 - 9.580, 9.582, and 9.583; new §9.566;
and the repeal of §§9.565, 9.566, 9.584, and 9.585, in Chapter 9,
Subchapter N, governing the Texas Home Living (TxHmL) Program. The amendments
to §§9.579, 9.580, and 9.583 are adopted with changes to the proposed
text published in the September 15, 2006, issue of the
Texas Register
(31 TexReg 7938). The amendments to §§9.553
- 9.563, 9.567, 9.568, 9.570, 9.571, 9.573 - 9.578, and 9.582; new §9.566;
and the repeal of §§9.565, 9.566, 9.584, and 9.585 are adopted without
changes to the proposed text.
The amendments are adopted in part to allow an individual receiving services
through the TxHmL Program to participate in the consumer directed services
(CDS) option. Texas Government Code, §531.051, requires HHSC to develop
a program in which the use of vouchers is available as a payment option for
the delivery of certain services to persons with disabilities, including Medicaid
services. Further, Texas Government Code, §531.052, established a CDS
workgroup composed of representatives from various health and human services
agencies to develop and implement the voucher payment program. In response
to the requirement in §531.051, rules were adopted regarding vendor fiscal
intermediary payments that applied to certain community care programs. House
Bill 2292, 78th Texas Legislature, Regular Session, 2003, added §32.066
to the Texas Human Resources Code, which requires HHSC to establish a consumer
directed services program in which individuals enrolled in Medicaid waiver
programs direct the delivery of program services. In addition, the CDS workgroup
required by Texas Government Code, §531.052, recommended the expansion
of the CDS option to include the Home and Community-based Services (HCS) and
TxHmL programs operated by DADS. Amendments that expand the CDS option to
individuals in the HCS Program are adopted elsewhere in this issue of the
The CDS option is a service delivery option in which an individual or legally
authorized representative (LAR) employs and retains service providers and
directs the delivery of program services. An individual choosing to participate
in the CDS option is supported by a consumer directed services agency (CDSA)
chosen by the individual to provide financial management services, and, at
the individual's request, support consultation services. Support consultation
services can also be provided by a contractor that is retained by the employer
in the CDS option. The adopted rules specify the services available for self-direction,
add support consultation and financial management to the array of TxHmL Program
services, and specify provider and mental retardation authority (MRA) requirements,
including those regarding informing an individual and LAR of the individual's
right to participate in the CDS option, and the procedures for recommending
that an individual discontinue participation in the CDS option.
The amendments, new section, and repeal are also adopted to clarify and
amend the procedures for notifying an applicant of a program vacancy to include
time frames for enrollment activities and to specify the circumstances under
which an MRA withdraws an offer of a program vacancy. Historically, the TxHmL
Program rules have not included enrollment time frames for an applicant seeking
program enrollment, which has adversely affected an MRA's ability to complete
enrollments and offer program vacancies. The adopted rules also delete the
actual number of geographic areas and waiver contract areas and add the website
address listing the counties in the geographic and waiver contract areas.
The amendments are also adopted to update terminology and agency names,
correct rule cross-references to ensure that the rule reflects changes resulting
from the consolidation of health and human services agencies in 2004, and
update the sections to make them consistent with other DADS rules.
The adoption reorders and renumbers §9.580 and §9.583; however,
no substantive change has been made to the rule content. The reordering and
renumbering were necessary to retain the numbering system of certification
principles in the TxHmL rule, because that numbering system corresponds to
the internal data collection systems used by the survey and certification
staff for evidentiary reporting to the Centers for Medicare and Medicaid Services.
Section 9.579(d)(2)(B) was changed to update a reference based on these changes.
DADS received written comments from the Mission Road Developmental Center,
J-MAG Enterprises, All the Little Things Count, Mosaic, and the Private Providers
Association of Texas (PPAT). A summary of the comments and the responses follow.
Comment: Four commenters stated that implementing the CDS option in the
TxHmL Program creates confusion by duplicating existing processes. The commenters
recommended that the rules be clarified to provide clear delineation of the
responsibilities of the case manager, support advisor, individual, and CDSA.
Response: The commenters did not specify which existing TxHmL Program processes
they believed were duplicated by the CDS option, but the agency directs the
commenters to new Chapter 41, Consumer Directed Services Option, for a clear
delineation of the responsibilities of all parties involved in the delivery
of services under the CDS option. This chapter makes clear that the CDS option
does not duplicate existing TxHmL Program processes. The rule language was
not changed in response to the comment.
Comment: Two commenters expressed opposition to implementing the CDS option
in the TxHmL program, stating that the time and effort expended toward making
this change would be better devoted to improving the TxHmL Program. The commenters
stated adding the CDS option will increase administrative costs for TxHmL
providers, add an additional level of bureaucracy with the CDSA, and open
the door for more corruption and poorer quality of service.
Response: The agency disagrees with the commenters' statements and responds
that for individuals and family members who want greater choice in the selection
of direct service providers, control over how services are delivered, and
flexibility in setting wages and benefits of direct service providers, the
CDS option represents a significant improvement to the TxHmL Program. The
agency explains that during the past five years, the agency has successfully
implemented the CDS option in four Medicaid waiver programs: Community Living
Assistance and Support Services and Deaf-Blind Multiple Disabilities in 2001;
Community Based Alternatives in 2003; and Medically Dependent Children Program
in 2006. In addition, the agency has offered the CDS option in Consumer Managed
Personal Assistance Services since 2001 and in Primary Home Care since 2002.
House Bill 2292, 78th Texas Legislature, Regular Session, 2003, added §32.066
to the Texas Human Resources Code, which requires HHSC to establish a consumer
directed services option in which individuals enrolled in Medicaid waiver
programs direct the delivery of program services. In addition, the CDS workgroup
required by Texas Government Code, §531.052, recommended the expansion
of the CDS option to include the HCS and TxHmL programs operated by the agency.
The rule language was not changed in response to the comment.
Comment: A commenter recommended that the agency aggressively pursue ongoing
cost analysis of the CDS option across all programs to include the TxHmL Program
and evaluate consumer satisfaction with CDS in the TxHmL Program following
implementation.
Response: The agency responds that HHSC and the CDS workgroup required
by Texas Government Code, §531.052, will continue to determine the type
and frequency of any analysis of the CDS option. The rule language was not
changed in response to the comment.
40 TAC §§9.553 - 9.563, 9.566 - 9.568, 9.570, 9.571, 9.573 - 9.580, 9.582, 9.583
The amendments are adopted 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; Texas
Government Code, §531.051, which requires the Health and Human Services
Commission to develop a program in which the use of vouchers is available
as a payment option for the delivery of certain services to persons with disabilities,
including Medicaid services; and Texas Human Resources Code, §32.066
which requires HHSC to establish a consumer-directed services program in which
individuals enrolled in Medicaid waiver programs direct the delivery of program
services.
§9.579.Certification Principles: Qualified Personnel.
(a)
The program provider must ensure the continuous availability
of trained and qualified employees and contractors to provide the service
components in an individual's IPC.
(b)
The program provider must comply with applicable laws and
regulations to ensure that:
(1)
its operations meet necessary requirements; and
(2)
its employees or contractors possess legally necessary
licenses, certifications, registrations, or other credentials and are in good
standing with the appropriate professional agency before performing any function
or delivering services.
(c)
The program provider must employ or contract with a service
provider of the individual's or LAR's choice if that service provider:
(1)
is qualified to provide the service component;
(2)
provides the service within the direct services portion
of the applicable TxHmL Program rate; and
(3)
contracts with or is employed by the program provider.
(d)
The program provider must implement and maintain a plan
for initial and periodic training of personnel that assures personnel are:
(1)
trained and qualified to deliver services as required by
the current needs and characteristics of the individual to whom they deliver
services;
(2)
knowledgeable of:
(A)
acts that constitute abuse, neglect, or exploitation of
an individual, as defined in Chapter 711, Subchapter A of this title (relating
to Introduction);
(B)
the requirement to report acts of abuse, neglect, or exploitation,
or suspicion of such acts, to DFPS in accordance with §9.580(e) of this
subchapter (relating to Certification Principles: Quality Assurance); and
(C)
methods to prevent the occurrence of abuse, neglect, and
exploitation.
(e)
The program provider must implement and maintain personnel
practices that safeguard an individual against infectious and communicable
diseases.
(f)
The program provider must prevent:
(1)
conflicts of interest between program provider personnel
and an individual;
(2)
financial impropriety toward an individual;
(3)
abuse, neglect, or exploitation of an individual; and
(4)
threats of harm or danger toward an individual's possessions.
(g)
The program provider must employ or contract with a person
who has a minimum of three years work experience in planning and providing
direct services to people with mental retardation or other developmental disabilities,
as verified by a written professional reference, to oversee the provision
of direct services to an individual.
(h)
The program provider must ensure that the provider of community
support, day habilitation, employment assistance, supported employment, or
respite is at least 18 years of age and:
(1)
has a high school diploma or a certificate recognized by
a state as the equivalent of a high school diploma; or
(2)
has documentation of a proficiency evaluation of experience
and competence to perform the job tasks that includes:
(A)
written competency-based assessment of the ability to document
service delivery and observations of an individual to be served; and
(B)
at least three personal references from persons not related
by blood that indicate the ability to provide a safe, healthy environment
for an individual being served.
(i)
The program provider must ensure that the provider of community
support, day habilitation, employment assistance, supported employment, or
respite provides transportation in accordance with applicable state laws.
(j)
The program provider must ensure that at least one of the
following service components is provided by a person who is employed by, not
contracting with, the program provider:
(1)
community support;
(2)
day habilitation;
(3)
supported employment; or
(4)
respite.
(k)
The program provider must ensure that dental treatment
is provided by a dentist currently licensed by the Texas State Board of Dental
Examiners.
(l)
The program provider must ensure that nursing is provided
by a nurse who is currently licensed as a registered nurse or as a vocational
nurse by the Board of Nurse Examiners for the State of Texas.
(m)
The program provider must ensure that adaptive aids meet
applicable standards of manufacture, design, and installation.
(n)
The program provider must ensure that the provider of behavioral
support is currently:
(1)
licensed as a psychologist by the Texas State Board of
Examiners of Psychologists;
(2)
licensed as a psychological associate by the Texas State
Board of Examiners of Psychologists and working under the supervision of a
licensed psychologist;
(3)
licensed as a psychological associate by the Texas State
Board of Examiners of Psychologists or certified as a DADS-certified psychologist
in accordance with §5.161 of this title (relating to TDMHMR-Certified
Psychologist) and working in a public agency; or
(4)
certified as a behavior analyst by the Behavior Analyst
Certification Board, Inc.
(o)
The program provider must ensure that minor home modifications
are delivered by contractors who provide the service in accordance with state
and local building codes and other applicable regulations.
(p)
The program provider must ensure that a provider of specialized
therapies is licensed by the appropriate State of Texas licensing authority
for the specific therapeutic service provided by the provider.
(q)
The program provider must comply with THSC, Chapters 250
and 253, including taking the following action regarding certain applicants,
employees, and contractors:
(1)
obtain criminal history record information that relates
to the applicant, employee, or contractor and refrain from employing or contracting
with, or immediately discharge, a person who has been convicted of an offense
that bars employment under THSC, §250.006, or an offense that the program
provider determines is a contraindication to the person's employment or contract
with the program provider;
(2)
search the Nurse Aide Registry maintained by DADS in accordance
with THSC, Chapter 250, and refrain from employing or contracting with, or
immediately discharge, a person who is designated in the registry as having
abused, neglected, or mistreated a consumer of a facility or has misappropriated
a consumer's property; and
(3)
search the Employee Misconduct Registry maintained by DADS
in accordance with THSC, Chapter 253, and refrain from employing or contracting
with, or immediately discharge, a person who is designated in the registry
as having abused, neglected, or exploited a consumer or has misappropriated
a consumer's property.
§9.580.Certification Principles: Quality Assurance.
(a)
The program provider must:
(1)
assist the individual or LAR in understanding the requirements
for participation in the TxHmL Program and include the individual or LAR in
planning service provision and any changes to the plan for service provision
if changes become necessary;
(2)
assist and cooperate with the individual's or LAR's request
to transfer to another program provider;
(3)
assist the individual to access public accommodations or
services available to all citizens;
(4)
assist the individual to manage the individual's financial
affairs upon documentation of the individual's or LAR's written request for
such assistance;
(5)
ensure that any restriction affecting the individual is
approved by the individual's service planning team before the imposition of
the restriction;
(6)
inform the individual or LAR about the individual's health,
mental condition, and related progress;
(7)
inform the individual or LAR of the name and qualifications
of any person serving the individual and the option to choose among various
available service providers;
(8)
provide the individual or LAR access to TxHmL Program records,
including, if applicable, financial records maintained on the individual's
behalf, about the individual and the delivery of services by the program provider
to the individual;
(9)
assist the individual to communicate by phone or by mail
during the provision of TxHmL Program services unless the service planning
team has agreed to limit the individual's access to communicating by phone
or by mail;
(10)
assist the individual, as specified in the individual's
PDP, to attend religious activities as chosen by the individual or LAR;
(11)
ensure the individual is free from unnecessary restraints
during the provision of TxHmL Program services;
(12)
regularly inform the individual or LAR about the individual's
or program provider's progress or lack of progress made in the implementation
of the PDP;
(13)
receive and act on complaints about the program services
provided by the program provider;
(14)
ensure that the individual is free from abuse, neglect,
or exploitation by program provider personnel;
(15)
provide active, individualized assistance to the individual
or LAR in exercising the individual's rights and exercising self-advocacy,
including:
(A)
making complaints;
(B)
registering to vote;
(C)
obtaining citizenship information and education;
(D)
obtaining advocacy services; and
(E)
obtaining information regarding legal guardianship;
(16)
provide the individual privacy during treatment and care
of personal needs;
(17)
include the individual's LAR in decisions involving the
planning and provision of TxHmL Program services;
(18)
inform the individual or LAR of the process for reporting
a complaint to DADS or the MRA when the program provider's resolution of a
complaint is unsatisfactory to the individual or LAR, including the DADS Office
of Consumer Rights and Services telephone number to initiate complaints (1-800-458-9858)
or the MRA telephone number to initiate complaints;
(19)
inform the individual or LAR, orally and in writing, of
the requirements described in paragraphs (1) - (18) of this subsection:
(A)
when the individual is enrolled in the program provider's
program;
(B)
if the requirements described in paragraphs (1) - (18)
of this subsection are revised;
(C)
at the request of the individual or LAR; and
(D)
if the legal status of the individual changes;
(20)
obtain an acknowledgement stating that the information
described in paragraph (19) of this subsection was provided to the individual
or LAR and that is signed by:
(A)
the individual or LAR;
(B)
the program provider staff person providing such information;
and
(C)
a third-party witness; and
(21)
notify the individual's service coordinator of an individual's
or LAR's expressed interest in CDS and document such notification.
(b)
The program provider must make available all records, reports,
and other information related to the delivery of TxHmL Program services as
requested by DADS, other authorized agencies, or CMS and deliver such items,
as requested, to a specified location.
(c)
At least annually, the program provider must conduct a
satisfaction survey of individuals, their families, and LARs, and take action
regarding any areas of dissatisfaction.
(d)
The program provider must publicize and make available
a process for receiving complaints, and maintain a record of verifiable resolutions
of complaints received from:
(1)
individuals, their families, or LARs;
(2)
the MRA;
(3)
the program provider's personnel or service providers;
and
(4)
the general public.
(e)
The program provider must ensure that:
(1)
the individual and the LAR are informed of how to report
allegations of abuse, neglect, or exploitation to DFPS and are provided with
the DFPS toll-free telephone number (1-800-647-7418) in writing; and
(2)
all program provider personnel:
(A)
are instructed to report to DFPS immediately, but not later
than one hour after having knowledge or suspicion, that an individual has
been or is being abused, neglected, or exploited; and
(B)
are provided with the DFPS toll-free telephone number (1-800-647-7418)
in writing; and
(C)
report suspected abuse, neglect or exploitation as instructed.
(f)
Upon suspicion that an individual has been or is being
abused, neglected, or exploited or notification of an allegation of abuse,
neglect or exploitation, the program provider must take necessary actions
to secure the safety of the alleged victim, including:
(1)
obtaining immediate and on-going medical and other appropriate
supports for the alleged victim, as necessary;
(2)
restricting access by the alleged perpetrator of the abuse,
neglect, or exploitation to the alleged victim or other individuals pending
investigation of the allegation, when an alleged perpetrator is an employee
or contractor of the program provider; and
(3)
notifying, as soon as possible but no later than 24 hours
after the program provider reports or is notified of an allegation, the alleged
victim, the alleged victim's LAR, and the MRA of the allegation report and
the actions that have been or will be taken.
(g)
The program provider personnel must cooperate with the
DFPS investigation of an allegation of abuse, neglect, or exploitation, including:
(1)
providing complete access to all TxHmL Program service
sites owned, operated, or controlled by the program provider;
(2)
providing complete access to individuals and program provider
personnel;
(3)
providing access to all records pertinent to the investigation
of the allegation; and
(4)
preserving and protecting any evidence related to the allegation
in accordance with DFPS instructions.
(h)
The program provider must:
(1)
report the program provider's response to the finding of
a DFPS investigation of abuse, neglect, or exploitation to DADS in accordance
with DADS procedures within 14 calendar days of the program provider's receipt
of the investigation findings;
(2)
promptly, but not later than five calendar days from the
program provider's receipt of the DFPS investigation finding, notify the alleged
victim or LAR of:
(A)
the investigation finding;
(B)
the corrective action taken by the program provider if
DFPS confirms that abuse, neglect, or exploitation occurred;
(C)
the process to appeal the investigation finding as described
in Chapter 711, Subchapter M of this title (relating to Requesting an Appeal
if You are the Reporter, Alleged Victim, Legal Guardian, or with Advocacy,
Incorporated); and
(D)
the process for requesting a copy of the investigative
report from the program provider; and
(3)
upon request of the alleged victim or LAR, provide to the
alleged victim or LAR a copy of the DFPS investigative report after concealing
any information that would reveal the identity of the reporter or of any individual
who is not the alleged victim.
(i)
If the DFPS investigation confirms that abuse, neglect,
or exploitation by program provider personnel occurred, the program provider
must take appropriate action to prevent the recurrence of abuse, neglect or
exploitation including, when warranted, disciplinary action against or termination
of the employment of program provider personnel confirmed by the DFPS investigation
to have committed abuse, neglect, or exploitation.
(j)
In all respite facilities, the program provider must post
in a conspicuous location:
(1)
the name, address, and telephone number of the program
provider;
(2)
the effective date of the program provider agreement; and
(3)
the name of the legal entity named on the program provider
agreement.
(k)
At least quarterly, the program provider must review incidents
of confirmed abuse, neglect, or exploitation, complaints, temporary and permanent
discharges, transfers, and unusual incidents to identify program operation
modifications that will prevent the recurrence of such incidents and improve
service delivery.
(l)
A program provider must ensure that all personal information
maintained by the program provider or its contractors concerning an individual,
such as lists of names, addresses, and records created or obtained by the
program provider or its contractor, is kept confidential, that the use or
disclosure of such information and records is limited to purposes directly
connected with the administration of the TxHmL Program, and is otherwise neither
directly nor indirectly used or disclosed unless the written permission of
the individual to whom the information applies or the individual's LAR is
obtained before the use or disclosure.
(m)
The program provider must ensure that:
(1)
the individual or LAR has agreed in writing to all charges
assessed by the program provider against the individual's personal funds before
the charges are assessed; and
(2)
charges for items or services are reasonable and comparable
to the costs of similar items and services generally available in the community.
(n)
The program provider must not charge an individual or LAR
for costs for items or services reimbursed through the TxHmL Program.
(o)
At the written request of an individual or LAR, the program
provider:
(1)
must manage the individual's personal funds entrusted to
the program provider;
(2)
must not commingle the individual's personal funds with
the program provider's funds; and
(3)
must maintain a separate, detailed record of all deposits
and expenditures for the individual.
(p)
When a behavioral support plan includes techniques that
involve restriction of individual rights or intrusive techniques, the program
provider must ensure that the implementation of such techniques includes:
(1)
approval by the individual's service planning team;
(2)
written consent of the individual or LAR;
(3)
verbal and written notification to the individual or LAR
of the right to discontinue participation in the behavioral support plan at
any time;
(4)
assessment of the individual's needs and current level/severity
of the behavior targeted by the plan;
(5)
use of techniques appropriate to the level/severity of
the behavior targeted by the plan;
(6)
a written behavior support plan developed by a psychologist
or behavior analyst with input from the individual, LAR, the individual's
service planning team, and other professional personnel;
(7)
collection and monitoring of behavioral data concerning
the targeted behavior;
(8)
allowance for the decrease in the use of intervention techniques
based on behavioral data;
(9)
allowance for revision of the behavioral support plan when
the desired behavior is not displayed or techniques are not effective;
(10)
consideration of the effects of the techniques in relation
to the individual's physical and psychological well-being; and
(11)
at least annual review by the individual's service planning
team to determine the effectiveness of the program and the need to continue
the techniques.
(q)
The program provider must report the death of an individual
to the MRA and DADS by the end of the next business day following the death
of the individual or the program provider's knowledge of the death and, if
the program provider reasonably believes that the individual's LAR or family
does not know of the individual's death, to the individual's LAR or family
as soon as possible, but not later than 24 hours after the program provider
learns of the individual's death.
§9.583.TxHmL Program Principles for Mental Retardation Authorities.
(a)
An MRA must notify an applicant of a TxHmL Program vacancy
in accordance with §9.566 of this subchapter (relating to Notification
of Applicants).
(b)
An MRA must process requests for enrollment in the TxHmL
Program in accordance with §9.567 of this subchapter (relating to Process
for Enrollment).
(c)
An MRA must have a mechanism to ensure objectivity in the
process to assist an individual or LAR in the selection of a program provider
and a system for training all MRA staff who may assist an individual or LAR
in such process.
(d)
An MRA must ensure the development and completion of the
initial IPC and all necessary assessments within 45 working days of the individual
or LAR documenting the choice of TxHmL Program services over ICF/MR Program
services in accordance with §9.566(d)(2) of this subchapter.
(e)
An MRA must submit to DADS necessary documentation for
an applicant's enrollment within 10 working days after the applicant's or
LAR's selection of a program provider.
(f)
An MRA must ensure that its employees and contractors possess
legally necessary licenses, certifications, registrations, or other credentials
and are in good standing with the appropriate professional agency before performing
any function or delivering services.
(g)
An MRA must ensure that an individual or LAR is informed
orally and in writing of the following processes for filing complaints about
service provision:
(1)
processes for filing complaints with the MRA about the
provision of service coordination; and
(2)
processes for filing complaints about the provision of
TxHmL Program services including:
(A)
the telephone number of the MRA to file a complaint;
(B)
the toll-free telephone number of DADS to file a complaint;
and
(C)
the toll-free telephone number of DFPS (1-800-647-7418)
to file a complaint of abuse, neglect, or exploitation.
(h)
An MRA must maintain for each individual:
(1)
a current IPC;
(2)
a current PDP;
(3)
a current MR/RC Assessment; and
(4)
current service information.
(i)
For an individual receiving TxHmL Program services within
the MRA's local service area, the MRA must provide the individual's program
provider a copy of the individual's current PDP, IPC, and MR/RC Assessment.
(j)
An MRA must employ service coordinators who:
(1)
meet the minimum qualifications and staff training requirements
specified in Chapter 2, Subchapter L of this title (relating to Service Coordination
for Individuals with Mental Retardation); and
(2)
have received training about the TxHmL Program, including
the requirements of this subchapter and the TxHmL Program service components
as specified in §9.555 of this subchapter (relating to Definitions of
TxHmL Program Service Components).
(k)
An MRA must ensure that a service coordinator:
(1)
initiates, coordinates, and facilitates the person-directed
planning process to meet the desires and needs as identified by an individual
and LAR in the individual's PDP;
(2)
coordinates the development and implementation of the individual's
PDP;
(3)
submits a correctly completed request for authorization
of payment from non-TxHmL Program sources for which an individual may be eligible;
(4)
coordinates and develops an individual's IPC based on the
individual's PDP;
(5)
coordinates and monitors the delivery of TxHmL Program
and non-TxHmL Program services;
(6)
integrates various aspects of services delivered under
the TxHmL Program and through non-TxHmL Program sources;
(7)
records each individual's progress;
(8)
develops discharge and transfer plans, when necessary;
and
(9)
keeps records as they pertain to the implementation of
an individual's PDP.
(l)
An MRA must ensure that an individual or LAR is informed
of the name of the individual's service coordinator and how to contact the
service coordinator.
(m)
A service coordinator must:
(1)
assist the individual or LAR in exercising the legal rights
of the individual as a citizen and as a person with a disability;
(2)
assist the individual's LAR or family members to encourage
the individual to exercise the individual's rights;
(3)
inform the individual or LAR orally and in writing of:
(A)
the eligibility criteria for participation in the TxHmL
Program;
(B)
the services and supports provided by the TxHmL Program
and the limits of those services and supports; and
(C)
the reasons an individual may be discharged from the TxHmL
Program as described in §9.570 of this subchapter (relating to Permanent
Discharge from the TxHmL Program);
(4)
ensure that the individual and LAR participate in developing
a personalized PDP and IPC that meet the individual's identified needs and
service outcomes and that the individual's PDP is updated when the individual's
needs or outcomes change but not less than annually;
(5)
ensure that a restriction affecting the individual is approved
by the individual's service planning team before the imposition of the restriction;
(6)
ensure that the individual or LAR is informed of decisions
regarding denial or termination of services and the individual's or LAR's
right to request a fair hearing as described in §9.571 of this subchapter
(relating to Fair Hearings);
(7)
ensure that, if needed, the individual or LAR participates
in developing a discharge plan that addresses assistance for the individual
after the individual is discharged from the TxHmL Program; and
(8)
inform the individual or LAR that the service coordinator
will assist the individual or LAR to transfer the individual's TxHmL Program
services from one program provider to another program provider as chosen by
the individual or LAR.
(n)
When a change to an individual's PDP or IPC occurs or is
needed, the service coordinator must communicate the need for the change to
the individual or LAR, the individual's program provider, and other appropriate
persons as necessary.
(o)
At least 30 calendar days before the expiration of an individual's
IPC, the service coordinator must:
(1)
update the individual's PDP in conjunction with the individual's
service planning team; and
(2)
submit the updated information to the program provider
for completion of necessary support methodologies to be incorporated in the
updated PDP.
(p)
A service coordinator must:
(1)
review the status of an individual who is temporarily discharged
at least every 90 calendar days following the effective date of the temporary
discharge and document in the individual's record the reasons for continuing
the discharge; and
(2)
if the temporary discharge continues 270 calendar days,
submit written documentation of the 90, 180, and 270 calendar day reviews
to DADS for review and approval to continue the temporary discharge status.
(q)
A service coordinator must:
(1)
inform the individual or LAR orally and in writing, of
the requirements described in subsection (m) of this section:
(A)
upon receipt of DADS approval of the enrollment of the
individual;
(B)
if the requirements described in subsection (m) of this
section are revised;
(C)
at the request of the individual or LAR; and
(D)
if the legal status of the individual changes; and
(2)
document that the information described in paragraph (1)
of this subsection was provided to the individual or LAR.
(r)
A service coordinator must, at least annually:
(1)
inform the individual or LAR of the individual's right
to participate in CDS and discontinue participation in CDS at any time, except
as provided in §41.405(a) of this title (relating to Suspension of Participation
in CDS);
(2)
provide the individual or LAR a copy of Forms 1581, 1582,
and 1583, which are available at http://www.dads.state.tx.us/handbooks/forms/default.asp?HB=CDS,
and which contain information about CDS, including financial management services
and support consultation;
(3)
provide an oral explanation of the information contained
in Forms 1581, 1582, and 1583 to the individual or LAR; and
(4)
provide the individual or LAR the opportunity to choose
to participate in CDS and document the individual's choice on Form 1584, which
is available at http://www.dads.state.tx.us/handbooks/forms/default.asp?HB=CDS.
(s)
If an individual or LAR chooses to participate in CDS,
the service coordinator must:
(1)
provide names and contact information to the individual
or LAR regarding all CDSAs providing services in the MRA's local service area;
(2)
document the individual's or LAR's choice of CDSA on Form
1584;
(3)
document, in the individual's PDP, a description of the
service components provided through CDS; and
(4)
document, in the individual's PDP, a description of the
individual's service back-up plan.
(t)
The service coordinator must document in the individual's
PDP that the information described in subsections (r) and (s)(1) of this section
was provided to the individual or LAR.
(u)
For an individual participating in CDS, the MRA must recommend
to DADS that financial management services and support consultation, if applicable,
be terminated if the service coordinator determines that:
(1)
the individual's continued participation in CDS poses a
significant risk to the individual's health, safety or welfare; or
(2)
the individual or LAR has not complied with Chapter 41,
Subchapter B of this title (relating to Responsibilities of Employers and
Designated Representatives).
(v)
If an MRA makes a recommendation under subsection (u) of
this section, the MRA must:
(1)
submit the individual's IPC to DADS electronically; and
(2)
submit the following, in writing, to the Department of
Aging and Disability Services, Access and Intake, Program Enrollment, P.O.
Box 149030, Mail Code W-354, Austin, Texas 78714-9030:
(A)
a description of the service recommended for termination;
(B)
the reasons why termination is recommended;
(C)
a description of the attempts to resolve the issues before
recommending termination; and
(D)
other supporting documentation, as appropriate.
This agency hereby certifies that the adoption
has been reviewed by legal counsel and found to be a valid exercise of the
agency's legal authority.
Filed with the Office of
the Secretary of State on January 22, 2007.
TRD-200700153
Kenneth L. Owens
General Counsel
Department of Aging and Disability Services
Effective date: March 1, 2007
Proposal publication date: September 15, 2006
For further information, please call: (512) 438-4162
40 TAC §§9.565, 9.566, 9.584, 9.585
The repeal is adopted 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; Texas
Government Code, §531.051, which requires the Health and Human Services
Commission to develop a program in which the use of vouchers is available
as a payment option for the delivery of certain services to persons with disabilities,
including Medicaid services; and Texas Human Resources Code, §32.066
which requires HHSC to establish a consumer-directed services program in which
individuals enrolled in Medicaid waiver programs direct the delivery of program
services.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on January 22, 2007.
TRD-200700154
Kenneth L. Owens
General Counsel
Department of Aging and Disability Services
Effective date: March 1, 2007
Proposal publication date: September 15, 2006
For further information, please call: (512) 438-4162
Chapter 700.
CHILD PROTECTIVE SERVICES
The Health and Human Services Commission adopts, on behalf of the
Department of Family and Protective Services (DFPS), amendments to §§700.701
- 700.703, and 700.1713; the repeal of §700.704 and §700.705; and
new §§700.704 - 700.706, without changes to the proposed text published
in the November 10, 2006, issue of the
Texas Register
(31 TexReg 9275).
The justification for the proposal is to separate family-based safety services
(currently "family preservation services") from family reunification services.
Particularly in regions where outsourcing is implemented, where DFPS will
retain responsibility for family-based safety services and other entities
will provide family reunification services, separate rules for these different
services will clarify roles and responsibilities. Throughout the rules "family-based
safety services" replaces "family preservation services," to reflect the new
designation for these services. Also, the agency's name is updated, and Child
Protective Services (CPS) is changed to CPS Division.
Section 700.701 is revised to delete "reunification support services" from
the list of services.
In §700.702, the time frames currently included in the criteria used
to classify these services are deleted. Since the rules were previously adopted,
DFPS practice has changed to include a risk and safety assessment tool. This
tool rates child vulnerability, caregiver capability, and home environment,
as well as other factors. The resulting information is then used to categorize
cases based on the assessed degree of risk to a child. The current rules,
which categorize cases based on the time period services are offered, restrict
DFPS's flexibility, and, in some circumstances, prevent services from being
provided.
In §700.703, the time frames currently used to distinguish regular,
intensive early, and intensive family reunification services are deleted.
To best serve families during the transition to outsourcing, when both DFPS
and private entities will be responsible for service delivery in different
parts of the state, DFPS will address specific time frames in policy and contract.
Section 700.704 is a new rule that outlines the requirements for family
service plans for family-based safety services and family reunification services.
Sections 700.705 and 700.706 are the new rules that outline the circumstances
when family-based safety services and family reunification services are to
be closed.
Section 700.1713 is amended to reflect corresponding changes to §§700.701,
700.702, 700.704, and 700.705. In addition, the charts contained in subsections
(g) and (h) are deleted, with the relevant criteria inserted in the text.
In subsection (g), examples of specialized services that may be provided are
added to the text. In subsection (h), current minimum qualifications for contractors
are inserted into the text and the remainder is deleted. Also, selected provisions
of §700.1713, which are more appropriately addressed in contracts or
program policy, are deleted.
The sections will function by clarifying DFPS's procedures and practices.
No comments were received regarding adoption of the sections.
Subchapter G. SERVICES FOR FAMILIES
40 TAC §§700.701 - 700.706
The amendments and new sections are adopted 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 sections implement HRC §40.002.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on January 23, 2007.
TRD-200700169
Gerry Williams
General Counsel
Department of Family and Protective Services
Effective date: March 1, 2007
Proposal publication date: November 10, 2006
For further information, please call: (512) 438-3437
40 TAC §700.704, §700.705
The repeals are adopted 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 repeals implement HRC §40.002.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on January 23, 2007.
TRD-200700170
Gerry Williams
General Counsel
Department of Family and Protective Services
Effective date: March 1, 2007
Proposal publication date: November 10, 2006
For further information, please call: (512) 438-3437
40 TAC §700.1713
The amendment is adopted 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 §40.002.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on January 23, 2007.
TRD-200700171
Gerry Williams
General Counsel
Department of Family and Protective Services
Effective date: March 1, 2007
Proposal publication date: November 10, 2006
For further information, please call: (512) 438-3437
Subchapter M. SUBSTITUTE-CARE SERVICES
40 TAC §700.1341
The Health and Human Services Commission adopts, on behalf
of the Department of Family and Protective Services (DFPS), the repeal of §700.1341,
without changes to the proposal as published in the November 10, 2006, issue
of the
Texas Register
(31 TexReg 9280).
The section is no longer needed because state and federal permanency legislation
provide DFPS staff guidance on when termination of parental rights is appropriate.
The repeal will function by allowing staff to have more flexibility to
make appropriate recommendations to the court, consistent with current practice.
No comments were received regarding adoption of the repeal.
The repeal is adopted 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 Texas Family Code, Chapter 161.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on January 23, 2007.
TRD-200700172
Gerry Williams
General Counsel
Department of Family and Protective Services
Effective date: March 1, 2007
Proposal publication date: November 10, 2006
For further information, please call: (512) 438-3437
Chapter 800.
GENERAL ADMINISTRATION
Subchapter A. GENERAL PROVISIONS
40 TAC §§800.3, 800.5 - 800.7
The Texas Workforce Commission (Commission) adopts amendments,
Subchapter A, General Provisions, §§800.3, 800.5, 800.6, and
800.7
PART I. PURPOSE, BACKGROUND, AND AUTHORITY
PART II. EXPLANATION OF INDIVIDUAL PROVISIONS
PART I. PURPOSE, BACKGROUND, AND AUTHORITY
The purpose of the adopted rule amendment is to implement Senate Bill (SB)
452, enacted by the 79th Texas Legislature, Regular Session (2005), which
amends Texas Government Code, Chapter 552 by transferring all duties relating
to the Public Information Act to the Office of the Attorney General (OAG).
SB 452 streamlines the process of providing public information by housing
all functions relating to the Public Information Act under one agency. OAG
now responds to all questions about compliance with the Public Information
Act. As a result, operations are more efficient and the public is better served.
The purpose of the adopted rule amendment is also to conform the language
of §800.6(f) regarding de minimis requests to reflect that charges are
assessed when permissible under the Public Information Act. Specifically,
charges will be assessed for materials, labor, and overhead when the request
is fewer than 50 pages and the records are located in two or more separate
buildings that are not physically connected to each other or are in a remote
storage facility.
PART II. EXPLANATION OF INDIVIDUAL PROVISIONS
SUBCHAPTER A. GENERAL PROVISIONS
The Commission adopts the following amendments to Subchapter A:
§800.3. Historically Underutilized Businesses
Section 800.3(a) is modified to replace the General Services Commission
with the Texas Building and Procurement Commission because of the agency's
name change.
§800.6. Charges for Copies of Public Records
Section 800.6(a) is modified to replace the outdated reference to the General
Services Commission with OAG rules (1 TAC, Chapter 70).
Section 800.6(c) is modified to replace the outdated reference to the General
Services Commission with OAG rules (1 TAC, Chapter 70).
Section 800.6(f) is modified to align the rule regarding de minimis requests
with Texas Government Code §552.261 et seq. to allow recoupment of the
cost of handling open records requests that are under 50 pages. Specifically,
the Public Information Act allows recoupment of charges for materials, labor,
and overhead in situations where the requested records are located in two
or more separate buildings that are not physically connected to each other
or are in a remote storage facility.
Currently, Chapter 800 waives charges for open records that are 50 pages
or less. However, some open records requests result in the production of fewer
than 50 pages yet require extensive staff time and resources to fulfill. While
the Commission intends to recoup charges where the materials, labor, and overhead
charges are applicable under the Public Information Act for requests under
50 pages, the Commission may waive or reduce charges in circumstances in which §552.267
of the Public Information Act apply. Section 552.267 provides that a governmental
body shall provide a copy of public information without charge or at a reduced
charge if the governmental body determines that waiver or reduction of the
charge is in the public interest because providing the copy of the information
primarily benefits the general public. In addition, §552.267 provides
that if the cost to a governmental body of processing the collection of a
charge for providing a copy of public information will exceed the amount of
the charge, the governmental body may waive the charge. The Commission intends
to apply these provisions when such circumstances arise.
§800.7. Agency Vehicles
Section 800.7(a) is modified to replace the reference to the General Services
Commission and Internet address with the Texas Building and Procurement Commission
because of the agency's name change.
Section 800.7(b)(3) is modified to replace the reference to the General
Services Commission with the Texas Building and Procurement Commission because
of the agency's name change.
No comments were received.
The amendments are adopted under Texas Labor Code §301.0015
and §302.002(d), which provide the Texas Workforce Commission with the
authority to adopt, amend, or repeal such rules as it deems necessary for
the effective administration of Agency services and activities.
The amendments affect Texas Government Code, Chapters 552, 2161, and 2171.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on January 23, 2007.
TRD-200700162
Reagan Miller
Deputy Director for Workforce and UI Policy
Texas Workforce Commission
Effective date: February 12, 2007
Proposal publication date: November 17, 2006
For further information, please call: (512) 475-0829
Subchapter F. EQUAL EMPLOYMENT OPPORTUNITY RECORDS AND RECORDKEEPING
40 TAC §819.92
The Texas Workforce Commission (Commission) adopts amendments,
Subchapter F, Equal Employment Opportunity Records and Recordkeeping, §819.92
PART I. PURPOSE, BACKGROUND, AND AUTHORITY
PART II. EXPLANATION OF INDIVIDUAL PROVISIONS
PART I. PURPOSE, BACKGROUND, AND AUTHORITY
The purpose of the rule amendment is to clarify in rule the Commission's
determination of what materials are available to the parties in a civil rights
matter and what materials are beyond what would constitute reasonable access
to the file. The Commission's authority for determining the scope of reasonable
disclosure of documents is set forth in §21.305, Texas Labor Code, regarding
Access to Commission records.
Specifically §21.305 provides that "the commission shall adopt rules
allowing a party to a complaint filed under §21.201 reasonable access
to commission records relating to the complaint." Furthermore it provides
that, "unless the complaint is resolved through a voluntary settlement or
conciliation, on the written request of a party the executive director shall
allow the party access to the commission records: (1) after the final action
of the commission; or (2) if a civil action relating to the complaint is filed
in federal court alleging a violation of federal law." The rule defines reasonable
access to include access to all records in the file, except those excepted
from required disclosure under the Public Information Act and investigator
notes. The purpose of the change in the rule is to make clear the intent of
the Commission, under the authority of §21.305, Texas Labor Code, to
exclude investigator notes from the materials in a civil rights matter that
may be accessed. By so doing, the Commission is striving to ensure that investigators
have the broadest latitude to thoroughly investigate and record their findings,
while continuing to ensure that the parties have access to all other parts
of the file. This proposal additionally aligns Commission practices with the
Equal Employment Opportunity Commission's (EEOC) policies regarding release
of records in employment discrimination complaints as reflected in the Memorandum
of Understanding with EEOC.
Pursuant to §21.305, the Commission has determined what constitutes
reasonable access to files. Claimants or respondents to a Civil Rights Division
(CRD) investigation often request copies of the complete complaint file including
the investigator's personal notes. Generally, while an individual is authorized
to have access to copies of the contents in his or her CRD complaint file,
the reasonable access does not include documents in the file that may be deemed
confidential under the Public Information Act or an investigator's personal
notes.
PART II. EXPLANATION OF INDIVIDUAL PROVISIONS
SUBCHAPTER F. EQUAL EMPLOYMENT OPPORTUNITY RECORDS AND RECORDKEEPING
The Commission adopts the following amendments to Subchapter F:
§819.92. Access to CRD Records
Section 819.92(b) is added to provide that pursuant to the authority granted
the Commission in Texas Labor Code §21.305, reasonable access does not
include: (1) information excepted from required disclosure under Texas Government
Code, Chapter 552; or (2) investigator notes.
The new subsection provides that parties involved in an allegation filed
with CRD may obtain copies of all items in the file relating to their claim
but that reasonable access does not include documents in the file that may
be deemed confidential under the Public Information Act or investigator notes,
which will allow for more complete investigations and is consistent with the
Commission's Memorandum of Understanding with EEOC.
No comments were received.
The amendment is adopted under Texas Labor Code §301.0015
and §302.002(d), which provide the Texas Workforce Commission with the
authority to adopt, amend, or repeal such rules as it deems necessary for
the effective administration of Agency services and activities. The rules
are also proposed under Texas Labor Code §21.305, which provides the
Commission with the authority to adopt rules allowing a party to a complaint
filed under §21.201 reasonable access to Commission records relating
to the complaint.
The amendment affects Texas Government Code, Chapter 552.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on January 23, 2007.
TRD-200700163
Reagan Miller
Deputy Director for Workforce and UI Policy
Texas Workforce Commission
Effective date: February 12, 2007
Proposal publication date: November 17, 2006
For further information, please call: (512) 475-0829
Subchapter B. TEXAS INDIVIDUAL DEVELOPMENT ACCOUNT PILOT PROJECT
Subchapter N. TEXAS HOME LIVING (TXHML) PROGRAM
Part 19.
DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES
Subchapter Q. PURCHASED PROTECTIVE SERVICES
Chapter 700.
CHILD PROTECTIVE SERVICES
Part 20.
TEXAS WORKFORCE COMMISSION
Chapter 819.
TEXAS WORKFORCE COMMISSION CIVIL RIGHTS DIVISION
Chapter 833.
COMMUNITY DEVELOPMENT INITIATIVES