Proposed Rules Title 40

TITLE 40. SOCIAL SERVICES AND ASSISTANCE

Part 1. DEPARTMENT OF AGING AND DISABILITY SERVICES

Chapter 19. NURSING FACILITY REQUIREMENTS FOR LICENSURE AND MEDICAID CERTIFICATION

The Health and Human Services Commission (HHSC) proposes, on behalf of the Department of Aging and Disability Services (DADS), amendments to §19.101, concerning definitions; §19.1210, concerning certification and recertification requirements in Medicaid-certified facilities; §19.1911, concerning contents of the clinical record; §19.1926, concerning Medicaid hospice services; §19.2302, concerning requirements for a contracted Medicaid facility; §19.2326, concerning the Medicaid Swing Bed Program for rural hospitals; §19.2500, concerning preadmission screening and resident review (PASARR); and §19.2609, concerning payment of claims; proposes new §19.2401, concerning general qualifications for medical necessity determinations; §19.2403, concerning medical necessity determination; §19.2407, concerning denied medical necessity; §19.2413, concerning determination of payment rate based on the minimum data set (MDS) assessment submission; §19.2611, concerning retroactive vendor payments; and §19.2615, concerning resident transaction notices; and proposes the repeal of §19.1212, concerning physicians charging a fee to complete Medicaid forms; §19.2402, concerning the utilization review plan; §19.2403, concerning the utilization review process; §19.2404, concerning utilization review effective dates; §19.2407, concerning denied medical necessity; §19.2408, concerning retroactive medical necessity determinations; §19.2409, concerning general qualifications for at-risk assessments and medical necessity determinations; §19.2410, concerning criteria specific to a medical necessity determination; and §19.2413, concerning reconsideration of medical necessity determination and effective dates, in Chapter 19, Nursing Facility Requirements for Licensure and Medicaid Certification.

BACKGROUND AND PURPOSE

The purpose of the amendments, new sections, and repeal is to implement rule changes necessitated by a project under the direction of HHSC that will replace the state case-mix system for provider payments, which is based on the Texas Index for Level of Effort (TILE) model, with the federal case-mix system, which is based on the Resource Utilization Group (RUG) model. The TILE-to-RUG project implements Texas Health and Safety Code, §242.221 et seq., which requires DADS to use an automated system for nursing facility reimbursement and an assessment form designed by the United States Health Care Financing Administration (now the Centers for Medicare and Medicaid Services). As a result, DADS is replacing its Client Assessment, Review and Evaluation (CARE) form (also known as Form 3652) with the federal MDS assessment for making medical necessity determinations and calculating the RUG.

The proposal also updates agency names, corrects rule cross-references, and updates statutory citations.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §19.101 adds definitions for "admission MDS assessment," "completion date," "MDS nurse reviewer," "RN assessment coordinator," "RUG," and "state Medicaid claims administrator;" and deletes definitions for "admission determination of medical necessity," "CARE form," "case mix," "facility nurse assessor," "medical necessity assessment," "Natural Death Act," "nurse reviewer," "preadmission medical necessity determination," "TDMHMR," "TILE," "TILE 202 restorative nursing," "TILE error," and "utilization review committee." The amendment to §19.101 revises the definition of "comprehensive assessment," "medical necessity," "NHIC," and "vendor payment" to conform to terminology used in the RUG model. Other amendments to definitions in §19.101 update the name of the Texas State Board of Medical Examiners to the Texas Medical Board, update the name of the Board of Nurse Examiners for the State of Texas to the Texas Board of Nursing, delete a reference to the Texas Board of Nursing Facility Administrators, and correct outdated citations to rules and statutes.

The proposed amendment to §19.1210 revises the section to reflect the procedure and time frame for the attending physician of an individual who is receiving Medicaid-funded nursing facility services in a Medicaid-certified nursing facility (hereinafter referred to as a recipient) to certify and recertify the recipient's need for nursing facility care under the RUG model.

The proposed amendment to §19.1911 adds a requirement for a nursing facility resident's clinical record to meet the documentation requirements in HHSC's rule at 1 TAC §371.214, concerning the RUG classification system, which is also being amended as part of the conversion from TILE to RUG. The amendment also adds requirements that a resident's clinical record contain a face sheet indicating the current mailing address and telephone numbers for the attending physician, that clinical documentation in the resident's record be signed and dated, and that each page of clinical documentation identify the name of the resident for whom the clinical care is intended. The amendment to §19.1911 also replaces a reference to the CARE form with a reference to the MDS assessment and replaces obsolete references to the Texas Department of Human Services (DHS) and the Texas Department of Mental Health and Mental Retardation (TDMHMR) with references to DADS.

The proposed amendment to §19.1926 replaces a reference to the TILE assessment with a reference to the MDS assessment.

The proposed amendment to §19.2302 revises the titles of sections in cross-references to HHSC's rules concerning MDS assessments and the RUG classification system to reflect the new titles of those sections, which are being amended as part of the conversion from TILE to RUG. The amendment to §19.2302 also changes references from DHS to DADS and updates subsection (f) to reflect current administrative hearing procedures for nursing facilities for which DADS has suspended vendor payments or has proposed contract termination.

The proposed amendment to §19.2326 replaces a reference to TILE payment rates with a reference to RUG payment rates, replaces references to DHS with references to DADS, replaces references to the Texas Department of Health with references to the Department of State Health Services, and corrects rule cross-references.

The proposed amendment to §19.2500 updates agency names and responsibilities to reflect the consolidation of health and human services agencies in 2004, and removes a reference to §19.2410, which is being repealed as part of this proposal.

The amendment to §19.2609 specifies the time frames with which a nursing facility must comply when submitting claims and making adjustments to claims under the RUG model.

Proposed new §19.2401 contains the general qualifications for a medical necessity determination that currently are in §19.2409, which is proposed for repeal. The proposed new section is similar to the section proposed for repeal, except that the criteria for nursing facility risk in §19.2409(a) are not in the new rule. Because the MDS assessment includes the risk criteria and because DADS rules require that a medical necessity determination be made based on an evaluation of the needs shown on the MDS assessment, it is duplicative to have the risk criteria in rule.

Proposed new §19.2403 describes the purpose of a medical necessity determination in establishing an individual's eligibility for admission to the Texas Medicaid Nursing Facility Program and in securing a nursing facility's payment for services provided to a recipient. The new section describes the admission MDS assessment review process, the role of the state Medicaid claims administrator in making a medical necessity determination, and the effective period for a medical necessity determination. The new section governs the establishment of permanent medical necessity for a recipient, as well as the consequences a nursing facility faces if the facility fails to provide sufficient information on a recipient's MDS assessment for the state Medicaid claims administrator to make a medical necessity determination.

Proposed new §19.2407 governs the procedure the state Medicaid claims administrator must follow if the state Medicaid claims administrator finds that a Medicaid applicant or recipient does not meet the criteria for medical necessity. The procedure allows for the Medicaid applicant's or recipient's attending physician or a nursing facility physician to contest the finding of the state Medicaid claims administrator, and to provide additional information about the applicant's or recipient's medical need for nursing facility care. The proposed new section also describes the right of the applicant or recipient, or the applicant's or recipient's responsible party, to request a fair hearing if medical necessity is denied and sets forth the time frames in which the fair hearing must be requested.

Proposed new §19.2413 requires a nursing facility to complete an MDS assessment in accordance with instructions provided by the Centers for Medicare and Medicaid Services. A nursing facility must submit the MDS assessment and the Long-Term Care Medicaid Information Section in compliance with proposed new §19.2413 in order for the facility to be paid a calculated RUG rate for services provided, if the applicant or recipient is financially eligible for Medicaid and meets the medical necessity criteria for nursing facility care. The new section governs the payment consequences for a nursing facility if the facility submits an MDS assessment after the due date required by the federal MDS submission schedule or submits an MDS assessment outside the time period covered by the MDS assessment; it also governs how DADS determines the nursing facility payment rate when a facility submits a significant change in status assessment, a modification or significant correction to an MDS assessment, or an incomplete or erroneous MDS assessment.

Proposed new §19.2611 governs payments that DADS can make retroactively to a nursing facility for services the nursing facility provided to an individual who was eligible for, but had not yet applied for, Medicaid, for up to three months before the individual files an application for Medicaid eligibility. The proposed new section states that retroactive vendor payments are based on the individual's calculated RUG rate for the period covered by the retroactive vendor payment.

Proposed new §19.2615 requires a nursing facility to electronically submit to the state Medicaid claims administrator a resident transaction notice within 72 hours after a recipient's admission or discharge from the Medicaid nursing facility vendor payment system and requires the nursing facility administrator to sign the resident transaction notice.

The proposed repeal of §19.1212 eliminates an obsolete rule from DADS' rule base concerning a physician's charges for completing the CARE form.

The proposed repeal of §§19.2402 - 19.2404 and 19.2407 eliminates rules governing the procedures of the Utilization Review Committee, which will be obsolete under the RUG model. Under the RUG model, the state Medicaid claims administrator, rather than the Utilization Review Committee, will determine if an individual has a medical necessity for nursing facility care. The provisions of §19.2404 that govern resident transaction notices, are in proposed new §19.2615; and the provisions of §19.2407, governing denied medical necessity, are in proposed new §19.2407.

The proposed repeal of §19.2408 eliminates a rule governing retroactive medical necessity determinations that will no longer be valid under the RUG model. Provisions concerning retroactive vendor payments, which currently are in §19.2408, can be found in proposed new §19.2611.

Section 19.2409 is proposed for repeal, so that it can be proposed as new §19.2401 and be located in a more logical place in the subchapter.

The proposed repeal of §19.2410 eliminates a rule containing criteria for a medical necessity determination, because the criteria listed are not all-inclusive and only reference possible services or procedures that might qualify an individual for a medical necessity determination. The MDS assessment is the tool used to determine an individual's medical necessity for nursing facility care and, therefore, this rule is unnecessary.

The proposed repeal of §19.2413 eliminates a rule governing the reconsideration of medical necessity determinations and effective dates if a nursing facility provides services for a recipient during a period of time not covered by an effective medical necessity determination. The provisions of §19.2413 will not apply under the RUG model and, therefore, need to be repealed. Proposed new §19.2403(d) covers effective periods for medical necessity determinations under the RUG model.

FISCAL NOTE

Gordon Taylor, DADS Chief Financial Officer, has determined that, for the first five years the proposed amendments, new sections, and repeal are in effect, there are foreseeable implications relating to costs or revenues of state government. There are no foreseeable implications relating to costs or revenues of local governments.

The effect on state government for the first five years the proposed amendments, new sections, and repeal are in effect is an estimated additional cost of $5,935,500 in FY 2009; $0 in FY 2010; $0 in FY 2011; $0 in FY 2012; and $0 in FY 2013. The cost in FY 2009 is related to a one-year rate adjustment for providers who will lose revenue as a result of the TILE to RUG conversion to allow time for this group of providers to adjust to the RUG payment methodology.

SMALL BUSINESS AND MICRO-BUSINESS IMPACT ANALYSIS

DADS has determined that the proposed amendments, new sections, and repeal will not have an adverse economic effect on small businesses or micro-businesses, because elimination of the requirement for nursing facilities to complete both the MDS assessment and the CARE form will reduce costs for nursing facilities. To minimize the impact on providers who may lose revenue as a result of the new reimbursement methodology, DADS is planning a one-year rate adjustment to assist that group of providers.

PUBLIC BENEFIT AND COSTS

Barry Waller, DADS Assistant Commissioner for Provider Services, has determined that, for each year of the first five years the amendments, new sections, and repeal are in effect, the public benefit expected as a result of enforcing the amendments, new sections, and repeal is a streamlined and simplified Medicaid form submission process and more accurate MDS assessment completion, because the MDS assessment will determine the nursing facility's payment rate. The elimination of the CARE form will mean nursing facility staff can spend less time on form completion and more time on individual direct care, which ultimately will benefit the health and safety of nursing facility residents.

Mr. Waller anticipates that there will not be an economic cost to persons who are required to comply with the amendments, new sections, and repeal. The amendments, new sections, and repeal will not affect a local economy.

TAKINGS IMPACT ASSESSMENT

DADS has determined that this proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under Texas Government Code, §2007.043.

PUBLIC COMMENT

Questions about the content of this proposal may be directed to Larry North at (512) 438-3922. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-008, Department of Aging and Disability Services W-615, P.O. Box 149030, Austin, Texas 78714-9030, or street address 701 West 51st St., Austin, TX 78751; faxed to (512) 438-5759; or e-mailed to rulescomments@dads.state.tx.us . To be considered, comments must be submitted no later than 30 days after the date of this issue of the Texas Register . The last day to submit comments falls on a Sunday; therefore, comments must be either (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered to DADS before 5:00 p.m. on DADS' last working day of the comment period; or (3) faxed or e-mailed by midnight on the last day of the comment period. When faxing or e-mailing comments, please indicate "Comments on Proposed Rule 008" in the subject line.

Subchapter B. DEFINITIONS

40 TAC §19.101

STATUTORY AUTHORITY

The amendment is proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including DADS; Texas Human Resources Code, §161.021, which provides that the Aging and Disability Services Council shall study and make recommendations to the HHSC executive commissioner and the DADS commissioner regarding rules governing the delivery of services to persons who are served or regulated by DADS; Texas Government Code, §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program in each agency that operates a portion of the Medicaid program; and Texas Health and Safety Code, §242.226, which authorizes the adoption of rules necessary to improve the efficiency of the reimbursement process for the state Medicaid system and maximize the automated reimbursement system's capabilities.

The amendment affects Texas Government Code, §531.0055 and §531.021; Texas Human Resources Code, §161.021; and Texas Health and Safety Code, §242.226.

§19.101.Definitions.

The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise.

(1) - (2) (No change.)

(3) Activities assessment--See Comprehensive Assessment and Comprehensive Care Plan [ ~~of Care~~ ].

(4) - (6) (No change.)

(7) Admission MDS assessment--An MDS assessment that determines a recipient's initial determination of eligibility for medical necessity for admission into the Texas Medicaid Nursing Facility Program.

[ ~~(7)~~ Admission determination of medical necessity--The state Medicaid claims administrator's decision regarding an individual's need for medical and nursing services upon the individual's entering his entry into a nursing facility or upon his becoming eligible for Medicaid. The admission determination of medical necessity is valid for up to 120 days from the effective date assigned by the Utilization Review Committee.]

(8) - (11) (No change.)

(12) Attending physician--A physician, currently licensed by the Texas Medical [ ~~State~~ ] Board [ ~~of Medical Examiners~~ ], who is designated by the resident or responsible party as having primary responsibility for the treatment and care of the resident.

(13) - (14) (No change.)

[ ~~(15)~~ CARE form--The DADS Client Assessment, Review and Evaluation (CARE) form completed by Medicaid-certified nursing facilities which allows for determination of medical necessity, reimbursement rate, initial level of the Preadmission Screening and Resident Review (PASARR) and the initial medical care determination and reassessment of the 1915(c) waivers.]

(15) [ ~~(16)~~ ] Care and treatment--Services required to maximize resident independence, personal choice, participation, health, self-care, psychosocial functioning and reasonable safety, all consistent with the preferences of the resident.

~~[ ~~(17)~~ Case mix--A method of classifying recipients based upon resource and service needs and paying nursing facilities a per diem rate according to the recipient's classification.]~~

(16) [ ~~(18)~~ ] Certification--The determination by DADS that a nursing facility meets all the requirements of the Medicaid and/or Medicare programs.

(17) [ ~~(19)~~ ] CFR--Code of Federal Regulations.

(18) [ ~~(20)~~ ] CMS--Centers for Medicare & Medicaid Services, formerly the Health Care Financing Administration (HCFA).

(19) [ ~~(21)~~ ] Complaint--Any allegation received by DADS other than an incident reported by the facility. Such allegations include, but are not limited to, abuse, neglect, exploitation, or violation of state or federal standards.

(20) Completion date--The date an RN assessment coordinator signs an MDS assessment as complete.

(21) [ ~~(22)~~ ] Comprehensive assessment--An interdisciplinary description of a resident's needs and capabilities including daily life functions and significant impairments of functional capacity , as described in §19.801(2) of this chapter (relating to Resident Assessment) .

(22) [ ~~(23)~~ ] Comprehensive care plan--A plan of care prepared by an interdisciplinary team that includes measurable short-term and long-term objectives and timetables to meet the resident's needs developed for each resident after admission. The plan addresses at least the following needs: medical, nursing, rehabilitative, psychosocial, dietary, activity, and resident's rights. The plan includes strategies developed by the team, as described in §19.802(b)(2) of this title (relating to Comprehensive Care Plans), consistent with the physician's prescribed plan of care, to assist the resident in eliminating, managing, or alleviating health or psychosocial problems identified through assessment. Planning includes:

(A) goal setting;

(B) establishing priorities for management of care;

(D) assisting in the development of appropriate coping mechanisms.

(23) [ ~~(24)~~ ] Controlled substance--A drug, substance, or immediate precursor as defined in the Texas Controlled Substance Act, Texas Health and Safety Code, Chapter 481, and/or the Federal Controlled Substance Act of 1970, Public Law 91-513.

(24) [ ~~(25)~~ ] Controlling person--A person with the ability, acting alone or in concert with others, to directly or indirectly, influence, direct, or cause the direction of the management, expenditure of money, or policies of a nursing facility or other person. A controlling person does not include a person, such as an employee, lender, secured creditor, or landlord, who does not exercise any influence or control, whether formal or actual, over the operation of a facility. A controlling person includes:

(A) a management company, landlord, or other business entity that operates or contracts with others for the operation of a nursing facility;

(B) any person who is a controlling person of a management company or other business entity that operates a nursing facility or that contracts with another person for the operation of a nursing facility; and

(C) any other individual who, because of a personal, familial, or other relationship with the owner, manager, landlord, tenant, or provider of a nursing facility, is in a position of actual control or authority with respect to the nursing facility, without regard to whether the individual is formally named as an owner, manager, director, officer, provider, consultant, contractor, or employee of the facility.

(25) [ ~~(26)~~ ] Covert electronic monitoring--The placement and use of an electronic monitoring device that is not open and obvious, and the facility and DADS have not been informed about the device by the resident, by a person who placed the device in the room, or by a person who uses the device.

(26) [ ~~(27)~~ ] DADS--The Department of Aging and Disability Services.

(27) [ ~~(28)~~ ] Dangerous drugs--Any drug as defined in the Texas Health and Safety Code, Chapter 483.

(28) [ ~~(29)~~ ] Dentist--A practitioner licensed by the Texas State Board of Dental Examiners [ ~~Board~~ ].

(29) [ ~~(30)~~ ] Department--Department of Aging and Disability Services.

(30) [ ~~(31)~~ ] DHS--Formerly, this term referred to the Texas Department of Human Services; it now refers to DADS, unless the context concerns an administrative hearing. Administrative hearings were formerly the responsibility of DHS; they now are the responsibility of the Texas Health and Human Services Commission (HHSC).

(31) [ ~~(32)~~ ] Dietitian--A qualified dietitian is one who is qualified based upon either:

(A) registration by the Commission on Dietetic Registration of the American Dietetic Association; or

(B) licensure, or provisional licensure, by the Texas State Board of Examiners of Dietitians. These individuals must have one year of supervisory experience in dietetic service of a health care facility.

(32) [ ~~(33)~~ ] Direct care by licensed nurses--Direct care consonant with the physician's planned regimen of total resident care includes:

(A) assessment of the resident's health care status;

(B) planning for the resident's care;

(D) nursing intervention; and

(E) evaluation and change of approaches as necessary.

(33) [ ~~(34)~~ ] Distinct part--That portion of a facility certified to participate in the Medicaid Nursing Facility program.

(34) [ ~~(35)~~ ] Drug (also referred to as medication)--Any of the following:

(A) any substance recognized as a drug in the official United States Pharmacopoeia, official Homeopathic Pharmacopoeia of the United States, or official National Formulary, or any supplement to any of them;

(B) any substance intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man;

(D) any substance intended for use as a component of any substance specified in subparagraphs (A) - (C) of this definition. It does not include devices or their components, parts, or accessories.

(35) [ ~~(36)~~ ] Electronic monitoring device--Video surveillance cameras and audio devices installed in a resident's room, designed to acquire communications or other sounds that occur in the room. An electronic, mechanical, or other device used specifically for the nonconsensual interception of wire or electronic communication is excluded from this definition.

(36) [ ~~(37)~~ ] Emergency--A sudden change in a resident's condition requiring immediate medical intervention

(37) [ ~~(38)~~ ] Exploitation--The illegal or improper act or process of a caretaker using the resources of an elderly or disabled person for monetary or personal benefit, profit, or gain.

(38) [ ~~(39)~~ ] Exposure (infections)--The direct contact of blood or other potentially infectious materials of one person with the skin or mucous membranes of another person. Other potentially infectious materials include the following human body fluids: semen, vaginal secretions, cerebrospinal fluid, peritoneal fluid, amniotic fluid, saliva in dental procedures, and body fluid that is visibly contaminated with blood, and all body fluids when it is difficult or impossible to differentiate between body fluids.

(39) [ ~~(40)~~ ] Facility--Unless otherwise indicated, a facility is an institution that provides organized and structured nursing care and service and is subject to licensure under Health and Safety Code, Chapter 242.

(A) For Medicaid, a facility is a nursing facility which meets the requirements of §1919(a) - (d) of the Social Security Act. A facility may not include any institution that is for the care and treatment of mental diseases except for services furnished to individuals age 65 and over and who are eligible as defined in §19.2500 of this title (relating to Preadmission Screening and Resident Review (PASARR)).

(B) For Medicare and Medicaid purposes (including eligibility, coverage, certification, and payment), the "facility" is always the entity which participates in the program, whether that entity is comprised of all of, or a distinct part of, a larger institution.

(C) "Facility" is also referred to as a nursing home or nursing facility. Depending on context, these terms are used to represent the management, administrator, or other persons or groups involved in the provision of care of the resident; or to represent the physical building, which may consist of one or more floors or one or more units, or which may be a distinct part of a licensed hospital.

~~[ ~~(41)~~ Facility nurse assessor--The licensed nurse in the nursing facility, who completes the Client Assessment, Review and Evaluation (CARE) forms.]~~

(40) [ ~~(42)~~ ] Family representative--An individual appointed by the resident to represent the resident and other family members, by formal or informal arrangement.

(41) [ ~~(43)~~ ] Fiduciary agent--An individual who holds in trust another's monies.

(42) [ ~~(44)~~ ] Free choice--Unrestricted right to choose a qualified provider of services.

(43) [ ~~(45)~~ ] Goals--Long-term: general statements of desired outcomes. Short-term: measurable time-limited, expected results that provide the means to evaluate the resident's progress toward achieving long-term goals.

(44) [ ~~(46)~~ ] Governmental unit--A state or a political subdivision of the state, including a county or municipality.

(45) [ ~~(47)~~ ] HCFA--Health Care Financing Administration, now the Centers for Medicare & Medicaid Services (CMS).

(46) [ ~~(48)~~ ] Health care provider--An individual, including a physician, or facility licensed, certified, or otherwise authorized to administer health care, in the ordinary course of business or professional practice.

(47) [ ~~(49)~~ ] Hearing--A contested case hearing held in accordance with the Administrative Procedure Act, Texas Government Code, Chapter 2001, and the formal hearing procedures in 1 TAC Chapter 357, Subchapter I.

(48) [ ~~(50)~~ ] HIV--Human Immunodeficiency Virus.

(49) [ ~~(51)~~ ] Incident--An abnormal event, including accidents or injury to staff or residents, which is documented in facility reports. An occurrence in which a resident may have been subject to abuse, neglect, or exploitation must also be reported to DADS.

(50) [ ~~(52)~~ ] Infection control--A program designed to prevent the transmission of disease and infection in order to provide a safe and sanitary environment.

(51) [ ~~(53)~~ ] Inspection--Any on-site visit to or survey of an institution by DADS for the purpose of licensing, monitoring, complaint investigation, architectural review, or similar purpose.

(52) [ ~~(54)~~ ] Interdisciplinary care plan--See the definition of "comprehensive care plan."

(53) [ ~~(55)~~ ] IV--Intravenous.

(54) [ ~~(56)~~ ] Legend drug or prescription drug--Any drug that requires a written or telephonic order of a practitioner before it may be dispensed by a pharmacist, or that may be delivered to a particular resident by a practitioner in the course of the practitioner's practice.

(55) [ ~~(57)~~ ] Licensed health professional--A physician; physician assistant; nurse practitioner; physical, speech, or occupational therapist; pharmacist; physical or occupational therapy assistant; registered professional nurse; licensed vocational nurse; licensed dietitian; or licensed social worker.

(56) [ ~~(58)~~ ] Licensed nursing home (facility) administrator--A person currently licensed by DADS in accordance with Chapter 18 of this title (relating to Nursing Facility Administrators) [ ~~the Texas Board of Nursing Facility Administrators~~ ].

(57) [ ~~(59)~~ ] Licensed vocational nurse (LVN)--A nurse who is currently licensed by the Texas Board of Nursing [ ~~Nurse Examiners for the State of Texas~~ ] as a licensed vocational nurse.

(58) [ ~~(60)~~ ] Life Safety Code (also referred to as the Code or NFPA 101)--The Code for Safety to Life from Fire in Buildings and Structures, Standard 101, of the National Fire Protection Association (NFPA).

(59) [ ~~(61)~~ ] Life safety features--Fire safety components required by the Life Safety Code, including, but not limited to, building construction, fire alarm systems, smoke detection systems, interior finishes, sizes and thicknesses of doors, exits, emergency electrical systems, and sprinkler systems.

(60) [ ~~(62)~~ ] Life support--Use of any technique, therapy, or device to assist in sustaining life. (See §19.419 of this title (relating to Advance Directives [ ~~and Medical Powers of Attorney~~ ])).

(61) [ ~~(63)~~ ] Local authorities--Persons, including, but not limited to, local health authority, fire marshal, and building inspector, who may be authorized by state law, county order, or municipal ordinance to perform certain inspections or certifications.

(62) [ ~~(64)~~ ] Local health authority--The physician appointed by the governing body of a municipality or the commissioner's court of the county to administer state and local laws relating to public health in the municipality's or county's jurisdiction as defined in Health and Safety Code, §121.021.

(63) [ ~~(65)~~ ] Long-term care-regulatory--DADS' Regulatory Services Division, which is responsible for surveying nursing facilities to determine compliance with regulations for licensure and certification for Title XIX participation.

(64) [ ~~(66)~~ ] Manager--A person, other than a licensed nursing home administrator, having a contractual relationship to provide management services to a facility.

(65) [ ~~(67)~~ ] Management services--Services provided under contract between the owner of a facility and a person to provide for the operation of a facility, including administration, staffing, maintenance, or delivery of resident services. Management services do not include contracts solely for maintenance, laundry, or food service.

(66) MDS--Minimum data set. See Resident Assessment Instrument (RAI).

(67) MDS nurse reviewer--A registered nurse employed by HHSC to monitor the accuracy of the MDS assessment submitted by a Medicaid-certified nursing facility.

(68) - (70) (No change.)

(71) Medical director--A physician licensed by the Texas Medical [ ~~State~~ ] Board [ ~~of Medical Examiners~~ ], who is engaged by the nursing home to assist in and advise regarding the provision of nursing and health care.

(72) Medical necessity (MN)--The determination that a recipient requires the services of licensed nurses in an institutional setting to carry out the physician's planned regimen for total care. A recipient's need for custodial care in a 24-hour institutional setting does not constitute a medical need. A group of health care professionals employed or contracted by the state Medicaid claims administrator contracted with HHSC makes individual determinations of medical necessity regarding nursing facility care. These health care professionals consist of physicians and registered nurses.

[ ~~(73)~~ Medical necessity assessment--The process by which the applicant's or recipient's medical condition is evaluated to determine the need for nursing facility care based upon information supplied by the nursing facility.]

(73) [ ~~(74)~~ ] Medical power of attorney--The legal document that designates an agent to make treatment decisions if the individual designator becomes incapable.

(74) [ ~~(75)~~ ] Medical-social care plan--See Interdisciplinary [ ~~Comprehensive~~ ] Care Plan.

(75) [ ~~(76)~~ ] Medically related condition--An organic, debilitating disease or health disorder that requires services provided in a nursing facility, under the supervision of licensed nurses.

(76) [ ~~(77)~~ ] Medication aide--A person who holds a current permit issued under the Medication Aide Training Program as described in Chapter 95 of this title (relating to Medication Aides--Program Requirements) and acts under the authority of a person who holds a current license under state law which authorizes the licensee to administer medication.

~~[ ~~(78)~~ Minimum data set (MDS)--See Resident Assessment Instrument (RAI).]~~

(77) [ ~~(79)~~ ] Misappropriation of funds--The taking, secretion, misapplication, deprivation, transfer, or attempted transfer to any person not entitled to receive any property, real or personal, or anything of value belonging to or under the legal control of a resident without the effective consent of the resident or other appropriate legal authority, or the taking of any action contrary to any duty imposed by federal or state law prescribing conduct relating to the custody or disposition of property of a resident.

~~[ ~~(80)~~ Natural Death Act--Provisions of Texas Health and Safety Code, Chapter 672.]~~

(78) [ ~~(81)~~ ] Neglect--A deprivation of life's necessities of food, water, or shelter, or a failure of an individual to provide services, treatment, or care to a resident which causes or could cause mental or physical injury, or harm or death to the resident.

(79) [ ~~(82)~~ ] NHIC--Formerly, this term referred to the National Heritage Insurance Corporation . It [ ~~, which was the intermediary for the Texas Medicaid program; it~~ ] now refers to the state Medicaid claims administrator [ ~~current intermediary for the Texas Medicaid program, the Texas Medicaid and Health Partnership~~ ].

(80) [ ~~(83)~~ ] Nonnursing personnel--Persons not assigned to give direct personal care to residents; including administrators, secretaries, activities directors, bookkeepers, cooks, janitors, maids, laundry workers, and yard maintenance workers.

(81) [ ~~(84)~~ ] Nurse aide--An individual who provides nursing or nursing-related services to residents in a facility under the supervision of a licensed nurse. This definition does not include an individual who is a licensed health professional, a registered dietitian, or someone who volunteers such services without pay. A nurse aide is not authorized to provide nursing and/or nursing-related services for which a license or registration is required under state law. Nurse aides do not include those individuals who furnish services to residents only as paid feeding assistants.

(82) [ ~~(85)~~ ] Nurse aide trainee--An individual who is attending a program teaching nurse aide skills.

(83) [ ~~(86)~~ ] Nurse practitioner--A person licensed by the Texas Board of Nursing [ ~~Nurse Examiners (BNE)~~ ] as a registered professional nurse, authorized by the Texas Board of Nursing [ ~~BNE~~ ] as an advanced practice nurse in the role of nurse practitioner.

~~[ ~~(87)~~ Nurse reviewer--A registered professional nurse employed by HHSC to monitor the accuracy of the CARE form assessment data.]~~

(84) [ ~~(88)~~ ] Nursing assessment--See definition of "comprehensive assessment" and "comprehensive care plan."

(85) [ ~~(89)~~ ] Nursing care--Services provided by nursing personnel which include, but are not limited to, observation; promotion and maintenance of health; prevention of illness and disability; management of health care during acute and chronic phases of illness; guidance and counseling of individuals and families; and referral to physicians, other health care providers, and community resources when appropriate.

(86) [ ~~(90)~~ ] Nursing facility/home--An institution that provides organized and structured nursing care and service, and is subject to licensure under Health and Safety Code, Chapter 242. The nursing facility may also be certified to participate in the Medicaid Title XIX program. Depending on context, these terms are used to represent the management, administrator, or other persons or groups involved in the provision of care to the residents; or to represent the physical building, which may consist of one or more floors or one or more units, or which may be a distinct part of a licensed hospital.

(87) [ ~~(91)~~ ] Nursing facility/home administrator--See the definition of "licensed nursing home (facility) administrator."

(88) [ ~~(92)~~ ] Nursing personnel--Persons assigned to give direct personal and nursing services to residents, including registered nurses, licensed vocational nurses, nurse aides, orderlies, and medication aides. Unlicensed personnel function under the authority of licensed personnel.

(89) [ ~~(93)~~ ] Objectives--See definition of "goals."

(90) [ ~~(94)~~ ] OBRA--Omnibus Budget Reconciliation Act of 1987, which includes provisions relating to nursing home reform, as amended.

(91) [ ~~(95)~~ ] Ombudsman--An advocate who is a certified representative, staff member, or volunteer of the DADS Office of the State Long Term Care Ombudsman.

(92) [ ~~(96)~~ ] Optometrist--An individual with the profession of examining the eyes for defects of refraction and prescribing lenses for correction who is licensed by the Texas Optometry Board.

(93) [ ~~(97)~~ ] Paid feeding assistant--An individual who meets the requirements of §19.1113 of this chapter (relating to Paid Feeding Assistants) and who is paid to feed residents by a facility or who is used under an arrangement with another agency or organization.

(94) [ ~~(98)~~ ] PASARR--Preadmission Screening and Resident Review.

(95) [ ~~(99)~~ ] Palliative Plan of Care--Appropriate medical and nursing care for residents with advanced and progressive diseases for whom the focus of care is controlling pain and symptoms while maintaining optimum quality of life.

(96) [ ~~(100)~~ ] Patient care-related electrical appliance--An electrical appliance that is intended to be used for diagnostic, therapeutic, or monitoring purposes in a patient care area, as defined in Standard 99 of the National Fire Protection Association.

(97) [ ~~(101)~~ ] Person--An individual, firm, partnership, corporation, association, joint stock company, limited partnership, limited liability company, or any other legal entity, including a legal successor of those entities.

(98) [ ~~(102)~~ ] Person with a disclosable interest--A person with a disclosable interest is any person who owns at least a 5.0% interest in any corporation, partnership, or other business entity that is required to be licensed under Health and Safety Code, Chapter 242. A person with a disclosable interest does not include a bank, savings and loan, savings bank, trust company, building and loan association, credit union, individual loan and thrift company, investment banking firm, or insurance company, unless these entities participate in the management of the facility.

(99) [ ~~(103)~~ ] Pharmacist--An individual, licensed by the Texas State Board of Pharmacy to practice pharmacy, who prepares and dispenses medications prescribed by a physician, dentist, or podiatrist.

(100) [ ~~(104)~~ ] Physical restraint--See Restraints (physical).

(101) [ ~~(105)~~ ] Physician--A doctor of medicine or osteopathy currently licensed by the Texas Medical [ ~~State~~ ] Board [ ~~of Medical Examiners~~ ].

(102) [ ~~(106)~~ ] Physician assistant (PA)--

(A) A graduate of a physician assistant training program who is accredited by the Committee on Allied Health Education and Accreditation of the Council on Medical Education of the American Medical Association; [ or ]

(B) A person who has passed the examination given by the National Commission on Certification of Physician Assistants. According to federal requirements (42 CFR §491.2) a physician assistant is a person who meets the applicable state requirements governing the qualifications for assistant to primary care physicians, and who meets at least one of the following conditions:

(i) is currently certified by the National Commission on Certification of Physician Assistants to assist primary care physicians; or

(ii) has satisfactorily completed a program for preparing physician assistants that:

(I) was at least one academic year in length;

(II) consisted of supervised clinical practice and at least four months (in the aggregate) of classroom instruction directed toward preparing students to deliver health care; and

(III) was accredited by the American Medical Association's Committee on Allied Health Education and Accreditation; or

(C) A person who has satisfactorily completed a formal educational program for preparing physician assistants who does not meet the requirements of paragraph (d)(2), 42 CFR §491.2, and has been assisting primary care physicians for a total of 12 months during the 18-month period immediately preceding July 14, 1978.

(103) [ ~~(107)~~ ] Podiatrist--A practitioner whose profession encompasses the care and treatment of feet who is licensed by the Texas State Board of Podiatric Medical Examiners.

(104) [ ~~(108)~~ ] Poison--Any substance that federal or state regulations require the manufacturer to label as a poison and is to be used externally by the consumer from the original manufacturer's container. Drugs to be taken internally that contain the manufacturer's poison label, but are dispensed by a pharmacist only by or on the prescription order of a physician, are not considered a poison, unless regulations specifically require poison labeling by the pharmacist.

(105) [ ~~(109)~~ ] Practitioner--A physician, podiatrist, dentist, or an advanced practice nurse or physician assistant to whom a physician has delegated authority to sign a prescription order, when relating to pharmacy services.

[ ~~(110)~~ Preadmission medical necessity determination--The determination of need for nursing facility care before the individual's admission into the nursing facility. This determination is valid until admission into a nursing facility or up to 30 days from the effective date.]

(106) [ ~~(111)~~ ] PRN (pro re nata)--As needed.

(107) [ ~~(112)~~ ] Provider--The individual or legal business entity that is contractually responsible for providing Medicaid services under an agreement with DADS.

(108) [ ~~(113)~~ ] Psychoactive drugs--Drugs prescribed to control mood, mental status, or behavior.

(109) [ ~~(114)~~ ] Qualified surveyor--An employee of DADS who has completed state and federal training on the survey process and passed a federal standardized exam.

(110) [ ~~(115)~~ ] Quality assessment and assurance committee--A group of health care professionals in a facility who develop and implement appropriate action to identify and rectify substandard care and deficient facility practice.

(111) [ ~~(116)~~ ] Quality-of-care monitor--A registered nurse, pharmacist, or dietitian employed by DADS who is trained and experienced in long-term care facility regulation, standards of practice in long-term care, and evaluation of resident care, and functions independently of DADS' Regulatory Services Division.

(112) [ ~~(117)~~ ] Recipient--Any individual residing in a Medicaid certified facility or a Medicaid certified distinct part of a facility whose daily vendor rate is paid by Medicaid.

(113) [ ~~(118)~~ ] Registered nurse (RN)--An individual currently licensed by the Texas Board of Nursing [ ~~Nurse Examiners for the State of Texas~~ ] as a Registered Nurse in the State of Texas.

(114) [ ~~(119)~~ ] Reimbursement methodology--The method by which HHSC determines nursing facility per diem rates.

(115) [ ~~(120)~~ ] Remodeling--The construction, removal, or relocation of walls and partitions, the construction of foundations, floors, or ceiling-roof assemblies, the expanding or altering of safety systems (including, but not limited to, sprinkler, fire alarm, and emergency systems) or the conversion of space in a facility to a different use.

(116) [ ~~(121)~~ ] Renovation--The restoration to a former better state by cleaning, repairing, or rebuilding, including, but not limited to, routine maintenance, repairs, equipment replacement, painting.

(117) [ ~~(122)~~ ] Representative payee--A person designated by the Social Security Administration to receive and disburse benefits, act in the best interest of the beneficiary, and ensure that benefits will be used according to the beneficiary's needs.

(118) [ ~~(123)~~ ] Resident--Any individual residing in a nursing facility.

(119) [ ~~(124)~~ ] Resident assessment instrument (RAI)--An assessment tool used to conduct comprehensive, accurate, standardized, and reproducible assessments of each resident's functional capacity as specified by the Secretary of the U.S. Department of Health and Human Services. At a minimum, this instrument must consist of the Minimum Data Set (MDS) core elements as specified by the Centers for Medicare & Medicaid Services (CMS); utilization guidelines; and Resident Assessment Protocols (RAPS).

(120) [ ~~(125)~~ ] Responsible party--An individual authorized by the resident to act for him as an official delegate or agent. Responsible party is usually a family member or relative, but may be a legal guardian or other individual. Authorization may be in writing or may be given orally.

(121) [ ~~(126)~~ ] Restraint hold--

(A) A manual method, except for physical guidance or prompting of brief duration, used to restrict:

(i) free movement or normal functioning of all or a portion of a resident's body; or

(ii) normal access by a resident to a portion of the resident's body.

(B) Physical guidance or prompting of brief duration becomes a restraint if the resident resists the guidance or prompting.

(122) [ ~~(127)~~ ] Restraints (chemical)--Psychoactive drugs administered for the purposes of discipline, or convenience, and not required to treat the resident's medical symptoms.

(123) [ ~~(128)~~ ] Restraints (physical)--Any manual method, or physical or mechanical device, material or equipment attached, or adjacent to the resident's body, that the individual cannot remove easily which restricts freedom of movement or normal access to one's body. The term includes a restraint hold.

(124) RN assessment coordinator--A registered nurse who signs and certifies a comprehensive assessment of a resident's needs, using the RAI, including the MDS, as specified by DADS.

(125) RUG--Resource Utilization Group. A categorization method, consisting of 34 categories based on the MDS, that is used to determine a recipient's service and care requirements and to determine the daily rate DADS pays a nursing facility for services provided to the recipient.

(126) [ ~~(129)~~ ] Seclusion--See the definition of "involuntary seclusion" in paragraph (1)(A) of this section.

(127) [ ~~(130)~~ ] Secretary--Secretary of the U.S. Department of Health and Human Services.

(128) [ ~~(131)~~ ] Services required on a regular basis--Services which are provided at fixed or recurring intervals and are needed so frequently that it would be impractical to provide the services in a home or family setting. Services required on a regular basis include continuous or periodic nursing observation, assessment, and intervention in all areas of resident care.

(129) [ ~~(132)~~ ] SNF--A skilled nursing facility or distinct part of a facility that participates in the Medicare program. SNF requirements apply when a certified facility is billing Medicare for a resident's per diem rate.

(130) [ ~~(133)~~ ] Social Security Administration--Federal agency for administration of social security benefits. Local social security administration offices take applications for Medicare, assist beneficiaries file claims, and provide information about the Medicare program.

(131) [ ~~(134)~~ ] Social worker--A qualified social worker is an individual who is licensed, or provisionally licensed, by the Texas State Board of Social Work Examiners as prescribed by the Texas Occupations Code, Chapter 505, [ ~~Chapter 50 of the Human Resources Code~~ ] and who has at least:

(A) a bachelor's degree in social work; or

(B) similar professional qualifications, which include a minimum educational requirement of a bachelor's degree and one year experience met by employment providing social services in a health care setting.

(132) [ ~~(135)~~ ] Standards--The minimum conditions, requirements, and criteria established in this chapter with which an institution must comply to be licensed under this chapter.

(133) State Medicaid claims administrator--The entity under contract with HHSC to process Medicaid claims in Texas.

(134) [ ~~(136)~~ ] State plan--A formal plan for the medical assistance program, submitted to CMS, in which the State of Texas agrees to administer the program in accordance with the provisions of the State Plan, the requirements of Titles XVIII and XIX, and all applicable federal regulations and other official issuances of the U.S. Department of Health and Human Services.

(135) [ ~~(137)~~ ] State survey agency--DADS is the agency, which through contractual agreement with CMS is responsible for Title XIX (Medicaid) survey and certification of nursing facilities.

(136) [ ~~(138)~~ ] Supervising physician--A physician who assumes responsibility and legal liability for services rendered by a physician assistant (PA) and has been approved by the Texas Medical [ ~~State~~ ] Board [ ~~of Medical Examiners~~ ] to supervise services rendered by specific PAs. A supervising physician may also be a physician who provides general supervision of a nurse practitioner providing services in a nursing facility.

(137) [ ~~(139)~~ ] Supervision--General supervision, unless otherwise identified.

(138) [ ~~(140)~~ ] Supervision (direct)--Authoritative procedural guidance by a qualified person for the accomplishment of a function or activity within his sphere of competence. If the person being supervised does not meet assistant-level qualifications specified in this chapter and in federal regulations, the supervisor must be on the premises and directly supervising.

(139) [ ~~(141)~~ ] Supervision (general)--Authoritative procedural guidance by a qualified person for the accomplishment of a function or activity within his sphere of competence. The person being supervised must have access to the licensed and/or qualified person providing the supervision.

(140) [ ~~(142)~~ ] Supervision (intermittent)--Authoritative procedural guidance by a qualified person for the accomplishment of a function or activity within his sphere of competence, with initial direction and periodic inspection of the actual act of accomplishing the function or activity. The person being supervised must have access to the licensed and/or qualified person providing the supervision.

~~[ ~~(143)~~ TDMHMR--Formerly, this term referred to the Texas Department of Mental Health and Mental Retardation; it now refers to DADS.]~~

(141) [ ~~(144)~~ ] Texas Register --A publication of the Texas Register Publications Section of the Office of the Secretary of State that contains emergency, proposed, withdrawn, and adopted rules issued by Texas state agencies. The Texas Register was established by the Administrative Procedure and Texas Register Act of 1975.

(142) [ ~~(145)~~ ] Therapeutic diet--A diet ordered by a physician as part of treatment for a disease or clinical condition, in order to eliminate, decrease, or increase certain substances in the diet or to provide food which has been altered to make it easier for the resident to eat.

(143) [ ~~(146)~~ ] Therapy week--A seven-day period beginning the first day rehabilitation therapy or restorative nursing care is given. All subsequent therapy weeks for a particular individual will begin on that day of the week.

(144) [ ~~(147)~~ ] Threatened violation--A situation that, unless immediate steps are taken to correct, may cause injury or harm to a resident's health and safety.

[ ~~(148)~~ TILE--Texas Index for Level of Effort; an index of 11 categories plus a default that consists of relative resource utilization groups. The index determines where a nursing facility client fits based upon service and care requirements. It determines the daily rate to be paid on behalf of the client.]

[ ~~(149)~~ TILE 202 restorative nursing--Nursing care and practices, based on a plan of care developed by the restorative team, designed to maintain or improve on goals achieved during physical or occupational therapy. Examples of TILE 202 restorative nursing include training and skill practice in self-feeding, bed mobility, transfers, ambulation, dressing or grooming, and active range of motion.]

~~[ ~~(150)~~ TILE error--Inaccuracies in a CARE form assessment of a Medicaid recipient that result in an incorrect TILE classification.]~~

(145) [ ~~(151)~~ ] Title II--Federal Old-Age, Survivors, and Disability Insurance Benefits of the Social Security Act.

(146) [ ~~(152)~~ ] Title XVI--Supplemental Security Income (SSI) of the Social Security Act.

(147) [ ~~(153)~~ ] Title XVIII--Medicare provisions of the Social Security Act.

(148) [ ~~(154)~~ ] Title XIX--Medicaid provisions of the Social Security Act.

(149) [ ~~(155)~~ ] Total health status--Includes functional status, medical care, nursing care, nutritional status, rehabilitation and restorative potential, activities potential, cognitive status, oral health status, psychosocial status, and sensory and physical impairments.

(150) [ ~~(156)~~ ] UAR--HHSC's Utilization and Assessment Review Section.

(151) [ ~~(157)~~ ] Uniform data set--See Resident Assessment Instrument (RAI).

(152) [ ~~(158)~~ ] Universal precautions--The use of barrier and other precautions by long-term care facility employees and/or contract agents to prevent the spread of blood-borne diseases.

[ ~~(159)~~ Utilization review committee--The group of health care professionals contracted by HHSC to make individual determinations of medical necessity regarding nursing facility care. The Utilization Review Committee consists of physicians and registered nurses.]

(153) [ ~~(160)~~ ] Vendor payment--Payment made by DADS on a daily-rate basis for services delivered to recipients in Medicaid-certified nursing facilities. Vendor payment is based on the nursing facility's approved-to-pay claim processed by the state Medicaid claims administrator [ ~~claim approval of the DADS-generated Nursing Facility Billing Statement to DADS~~ ]. The Nursing Facility Billing Statement, subject to adjustments and corrections, is prepared from information submitted by the nursing facility, which is currently on file in the computer system as of the billing date. Vendor payment is made at periodic intervals, but not less than once per month for services rendered during the previous billing cycle.

(154) [ ~~(161)~~ ] Working day--Any 24-hour period, Monday through Friday, excluding state and federal holidays.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 7, 2008.

TRD-200801789

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: May 18, 2008

For further information, please call: (512) 438-3734

Subchapter M. PHYSICIAN SERVICES

40 TAC §19.1210

STATUTORY AUTHORITY

The amendment affects Texas Government Code, §531.0055 and §531.021; Texas Human Resources Code, §161.021; and Texas Health and Safety Code, §242.226.

§19.1210.Certification and Recertification Requirements in Medicaid-Certified Facilities.

(a) A recipient's [ ~~The~~ ] physician must certify and recertify the recipient's need for nursing facility care in accordance with this section [ ~~participates in the utilization review process as specified in §19.2405 of this title (relating to Physicians' Certifications and Recertifications)~~ ].

(b) A recipient's physician must certify the [ ~~Physician's certification of a~~ ] recipient's need for nursing facility care [ ~~is required~~ ] no later [ ~~more~~ ] than 20 days after the recipient's [ ~~or 30 days before~~ ] admission to the facility [ ~~or before the Medicaid agency authorizes payment, whichever is later~~ ].

(c) A recipient's physician must recertify the recipient's need for nursing facility care [ ~~Physician's recertification of residents is required for admission and~~ ] every 180 days that the recipient remains in the nursing facility after the first certification [ ~~thereafter~~ ].

(d) A nursing facility must:

(1) ensure that each certification and recertification statement [ Physician's certification and recertification statements documenting the need for continued nursing facility services are placed in each resident's clinical record and reviewed on a regular basis by Texas Department of Human Services staff. The facility must ensure that each certification or recertification ] states: "I hereby certify that this resident requires/continues to require nursing facility care for 180 days "; and

(2) keep the physician's certification and recertification statements in the recipient's clinical record . [ ~~" When the physician anticipates that the recipient will require less than a 180-day stay, the physician must specify the anticipated number of days in the certification statement.~~ ]

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 7, 2008.

TRD-200801790

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: May 18, 2008

For further information, please call: (512) 438-3734

40 TAC §19.1212

(Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Department of Aging and Disability Services or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

STATUTORY AUTHORITY

The repeal is proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including DADS; Texas Human Resources Code, §161.021, which provides that the Aging and Disability Services Council shall study and make recommendations to the HHSC executive commissioner and the DADS commissioner regarding rules governing the delivery of services to persons who are served or regulated by DADS; Texas Government Code, §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program in each agency that operates a portion of the Medicaid program; and Texas Health and Safety Code, §242.226, which authorizes the adoption of rules necessary to improve the efficiency of the reimbursement process for the state Medicaid system and maximize the automated reimbursement system's capabilities.

The repeal affects Texas Government Code, §531.0055 and §531.021; Texas Human Resources Code, §161.021; and Texas Health and Safety Code, §242.226.

§19.1212.Physicians Charging a Fee To Complete Medicaid Forms.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 7, 2008.

TRD-200801791

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: May 18, 2008

For further information, please call: (512) 438-3734

Subchapter T. ADMINISTRATION

40 TAC §19.1911, §19.1926

STATUTORY AUTHORITY

The amendments are proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including DADS; Texas Human Resources Code, §161.021, which provides that the Aging and Disability Services Council shall study and make recommendations to the HHSC executive commissioner and the DADS commissioner regarding rules governing the delivery of services to persons who are served or regulated by DADS; Texas Government Code, §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program in each agency that operates a portion of the Medicaid program; and Texas Health and Safety Code, §242.226, which authorizes the adoption of rules necessary to improve the efficiency of the reimbursement process for the state Medicaid system and maximize the automated reimbursement system's capabilities.

The amendments affect Texas Government Code, §531.0055 and §531.021; Texas Human Resources Code, §161.021; and Texas Health and Safety Code, §242.226.

§19.1911.Contents of the Clinical Record.

(a) A resident's clinical record must meet all documentation requirements in the Texas Health and Human Services Commission rule at 1 TAC §371.214 (relating to Resource Utilization Group Classification System).

(b) The clinical record of each resident must contain:

(1) a face sheet that contains the attending physician's current mailing address and telephone numbers;

(2) [ ~~(1)~~ ] sufficient [ ~~Sufficient~~ ] information to identify and care for the resident, to include at a minimum:

(A) full name of resident;

(B) full home/mailing address;

(D) health insurance claim numbers, if applicable;

(E) date of birth; and

(F) clinical record number, if applicable ; [ . ]

(3) [ ~~(2)~~ ] a [ A ] record of the resident's assessments ; [ . ]

(4) [ ~~(3)~~ ] the [ ~~The~~ ] comprehensive, interdisciplinary plan of care and services provided (see also §19.802 of this chapter [ ~~title~~ ] (relating to Comprehensive Care Plans)), and the permanency plan for pediatric residents younger than 22 years of age ; [ . ]

(5) [ ~~(4)~~ ] the [ ~~The~~ ] results of any Preadmission Screening and Resident Review conducted by DADS; [ ~~the Texas Department of Human Services (DHS) or the Texas Department of Mental Health and Mental Retardation (TDMHMR).~~ ]

(6) [ ~~(5)~~ ] signed and dated clinical documentation [ ~~Progress notes~~ ] from all health care practitioners involved in the resident's care , with each page identifying the name of the resident for whom the clinical care is intended; [ . ]

(7) [ ~~(6)~~ ] any [ ~~Any~~ ] directives or medical [ ~~durable~~ ] powers of attorney as described in §19.419 of this chapter [ ~~title~~ ] (relating to Advance Directives [ ~~and Medical Powers of Attorney~~ ]) ; [ . ]

(8) [ ~~(7)~~ ] discharge [ ~~Discharge~~ ] information in accordance with §19.803 of this chapter [ ~~title~~ ] (relating to Discharge Summary (Discharge Plan of Care)) and a physician discharge summary, to include, at least, dates of admission and discharge, admitting and discharge diagnoses, condition on discharge, and prognosis, if applicable ; [ . ]

(9) [ ~~(8)~~ ] at [ At ] admission or within 14 days after admission , documentation of an initial medical evaluation, including history, physical examination, diagnoses and an estimate of discharge potential and rehabilitation potential , and documentation of a previous [ an ] annual medical examination ; [ . ]

(10) [ ~~(9)~~ ] authentication of a hospital diagnosis, which [ ~~Authentication of any hospital diagnoses.~~ ]

[ ~~(A)~~ ] [ ~~This~~ ] may be in the form of a signed hospital discharge summary, a signed report from the resident's hospital or attending physician, or a transfer form signed by the physician ; [ . ]

[ ~~(B)~~ The facility is allowed 14 workdays after admission to receive this information from the hospital or transferring facility. If the author of such reports is not the resident's attending physician, then the attending physician must acknowledge the report in writing by co-signing the report at his or her next scheduled visit.]

(11) [ ~~(10)~~ ] the [ ~~The~~ ] physician's signed and dated orders, including medication, treatment, diet, restorative and special medical procedures, and routine care to maintain or improve the resident's functional abilities (required for the safety and well-being of the resident) , which must not be changed [ ~~. Changes cannot be made~~ ] either on a handwritten or computerized physician's order sheet after the orders have been signed by the physician unless space allows for additional orders below the physician's signature, including space for the physician to sign and date again ; [ . ]

(12) [ ~~(11)~~ ] arrangements [ ~~Arrangements~~ ] for the emergency care of the resident in accordance with §19.1204 of this chapter [ ~~title~~ ] (relating to Availability of Physician for Emergency Care) ; [ . ]

(13) [ ~~(12)~~ ] observations [ ~~Observations~~ ] made by nursing personnel according to the time frames specified in §19.1010 of this chapter [ ~~title~~ ] (relating to Nursing Practices) and which facility [ ~~. Facility~~ ] staff must ensure [ ~~that the observations~~ ] show at least the following:

(A) items as specified on the MDS assessment [ ~~Resident Assessment Instrument and the Texas Nursing Facility Client Assessment Review and Evaluation (CARE) form~~ ]; and

(B) current information , including:

(i) PRN medications and results;

(ii) treatments and any notable results;

(iii) physical complaints, changes in clinical signs and behavior, mental and behavioral status, and all incidents or accidents;

(iv) flow sheets which may include bathing, restraint observation and/or release documentation, elimination, fluid intake, vital signs, ambulation status, positioning, continency status and care, and weight;

(v) the resident's ability to participate in activities of daily living as defined in §19.1010(e)(1) of this chapter [ ~~title~~ ]; and

(vi) dietary intake to include deviations from normal diet, rejection of substitutions, and physician's ordered snacks and/or supplemental feedings ; [ . ]

(14) [ ~~(13)~~ ] the [ ~~The~~ ] date and hour all drugs and treatments are administered ; and [ . ]

(15) [ ~~(14)~~ ] documentation [ ~~Documentation~~ ] of special procedures performed for the safety and well-being of the resident [ ~~must be included in the clinical record~~ ].

§19.1926.Medicaid Hospice Services.

(a) When a nursing facility (NF) contracts for hospice services for residents, the nursing facility must:

(1) have a written contract for the provision of arranged services , which must be signed by authorized [ ~~. Authorized~~ ] representatives of the NF and hospice and [ ~~must sign the contract. The contract~~ ] must include the following:

(A) - (F) (No change.)

(2) provide room and board services, which include the performance of personal care services , including[ : ] assistance in the activities of daily living, administration of medication, socializing activities, maintaining the cleanliness of a resident's room, and supervision and assisting in the use of durable medical equipment and prescribed therapies ; [ . ]

(3) - (4) (No change.)

(5) ensure that hospice documentation is a part of the current clinical record , which, at [ ~~. At~~ ] a minimum, must [ ~~documentation will~~ ] include the current and past:

(A) (No change.)

(B) MDS assessment [ ~~Texas Index for Level of Effort (TILE) Assessment~~ ];

(b) The NF and hospice must ensure that the coordinated plan of care reflects the participation of the hospice, the NF, the recipient, and the recipient's legal representative to the extent possible. The plan of care must include directives for managing pain and other uncomfortable symptoms, and must be revised and updated as necessary to reflect the recipient's [ ~~individual's~~ ] current status.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 7, 2008.

TRD-200801792

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: May 18, 2008

For further information, please call: (512) 438-3734

Subchapter X. REQUIREMENTS FOR MEDICAID-CERTIFIED FACILITIES

40 TAC §19.2302, §19.2326

STATUTORY AUTHORITY

The amendments affect Texas Government Code, §531.0055 and §531.021; Texas Human Resources Code, §161.021; and Texas Health and Safety Code, §242.226.

§19.2302.Requirements for a Contracted Medicaid Facility.

(a) - (b) (No change.)

(c) Each NF must comply with the Texas Health and Human Services Commission's (HHSC's) utilization review requirements as provided in 1 TAC §371.212 (relating to Minimum Data Set (MDS) Assessments [ ~~Case Mix Classification System)~~ ]), §371.213 (relating to Utilization Review and Control Activities Performed by Texas Health and Human Services Commission (Commission)), and §371.214 (relating to Resource Utilization Group Classification System [ ~~Texas Index for Level of Effort (TILE) Assessments~~ ]).

(d) (No change.)

(e) If DADS [ ~~the Texas Department of Human Services (DHS)~~ ] has documentation showing good cause, it reserves the right to reject the facility's participation or to cancel an existing contract if the facility charges the Title XIX resident, any member of his family, or any other source for supplementation or for any item except as allowed within DADS [ ~~DHS~~ ] policies and regulations.

(f) If DADS suspends a facility's vendor payments or proposes to terminate a facility's contract, the facility may request an administrative hearing to challenge the action. If a facility requests a hearing, the facility must make the request in accordance with HHSC rules at 1 TAC Chapter 357, Subchapter I. [ State statutes and Title XIX NF contracts provide for appeal procedures for aggrieved providers whose vendor payments may be or have been suspended or whose contracts have been canceled by DHS. A facility must submit a written request for a contract appeals hearing that is received by the department within 15 days of the facility's receipt of the letter notifying the facility of the proposed action. The facility must send the request for a hearing to the Texas Department of Human Services, P.O. Box 149030 (W-613), Austin, Texas 78714-9030. Hearings will be held in Austin, Texas. ]

(g) DADS' [ ~~DHS's~~ ] interpretations of the requirements for participation or the contract may not be appealed to HHSC's [ ~~DHS's~~ ] hearings department unless the interpretation has caused an adverse action for the facility.

(h) Facilities must allow representatives of DADS [ ~~DHS~~ ], the Medicaid Fraud Control Unit, and the Department of Health and Human Services to enter the premises at any time to make inspections or to privately interview the residents receiving assistance from DADS [ ~~DHS~~ ].

(i) Facilities must supply DADS [ ~~DHS~~ ] complete information according to federal and state requirements about the identity of:

(1) - (5) (No change.)

(j) If a profit-making corporation operates the facility, a copy of the following material is required:

(1) - (2) (No change.)

(3) a resolution from the board of directors authorizing a specific person or officer to sign contracts between DADS [ ~~DHS~~ ] and the corporation; and

(4) (No change.)

(k) If a nonprofit corporation operates the facility, a copy of the following material is required [ ~~Nonprofit corporations must furnish a copy of~~ ]:

(1) - (2) (No change.)

(3) a resolution from the board of directors authorizing a specific person or officer to sign contracts with DADS [ ~~the department~~ ]; and

(4) (No change.)

(l) Facilities other than those described in subsections (j) and (k) of this section must furnish a copy of:

(1) - (3) (No change.)

(4) other information required by DADS [ ~~DHS~~ ] to determine the status of the legal entity that owns the facility.

(m) Facilities must disclose business transaction information. A facility must send to DADS [ ~~DHS~~ ], within 35 days after the date of a written request, complete information on:

(1) - (2) (No change.)

(n) The facility must report changes in the required information promptly to DADS [ ~~DHS~~ ].

(o) Failure to provide this information may result in suspension, termination, or other contract action , including[ ~~, but not limited to,~~ ] holding vendor funds. Payment to the facility is denied beginning on the day after the date information was due, and ending on the day before the date the information is received by DADS [ ~~DHS~~ ].

(p) (No change.)

§19.2326.Medicaid Swing Bed Program for Rural Hospitals.

(a) Program description [ ~~Description~~ ]. DADS [ ~~The Texas Department of Human Services (DHS)~~ ] operates the Medicaid Swing Bed Program for rural hospitals located in counties with populations of 100,000 or less. The Medicaid Swing Bed Program is modeled on Medicare's Swing Bed Program. The Medicaid Swing Bed Program permits participating rural hospitals to use their beds interchangeably to furnish both acute hospital care and nursing facility care to Medicaid recipients, when no care beds are available in nursing facilities (NFs) in the area. When a participating rural hospital furnishes NF nursing care to Medicaid recipients, DADS [ ~~DHS~~ ] makes payment to the hospital using the same procedures[ ~~, the same case-mix methodology,~~ ] and the same Resource Utilization Group daily [ ~~Texas Index for Level of Effort (TILE)~~ ] rates that the Texas Health and Human Services Commission [ ~~Board of Human Services~~ ] authorizes for reimbursing NFs participating in the Texas Medicaid Nursing Home Program.

(b) Application to participate [ ~~Participate~~ ]. Rural hospitals apply to DADS [ ~~DHS~~ ] to participate in the Medicaid Swing Bed Program. Each applicant must be located in a county with a population of 100,000 or less and must meet the qualifying requirements of the Medicare Swing Bed Program. Hospitals approved for participation enter into swing bed provider agreements with DADS [ ~~DHS~~ ].

(c) Parallel participation [ ~~Participation~~ ] in Medicare. A rural hospital participating in the Medicaid Swing Bed Program [ ~~Each participating rural hospital~~ ] must:

(1) (No change.)

(2) be Medicare-certified by the Department of State Health Services (DSHS) [ ~~Texas Department of Health (TDH)~~ ] as a swing bed hospital in the Medicare Swing Bed Program.

(d) (No change.)

(e) Applicability of NF requirements [ ~~Requirements~~ ]. From day one of the resident's stay, a rural hospital participating in the Medicaid Swing Bed Program [ ~~participating rural hospitals~~ ] must meet the requirements set forth in §19.101 of this title (relating to Definitions); §19.2304(c) of this title (relating to Contract [ ~~Federal~~ ] Requirements); §§19.300 - 19.314 and 19.316 [ ~~§§19.1701 - 19.1715 and 19.1717~~ ] of this title (relating to General Requirements; Applicable Codes and Standards; Waivers; Emergency Power; Space and Equipment; Resident Rooms; Toilet Facilities; Resident Call System; Dining and Resident Activities; Other Environmental Conditions; Site and Grounds; Fire Service and Access; Means of Egress; Interior Finishes - Walls, Ceilings, and Floors; Fire Alarms, Detection Systems, and Sprinkler Systems; and Subdivision of Building Spaces - Smoke Barriers); §§19.1901-19.1914 and 19.1917 of this title (relating to Administration; Governing Body; Required Training of Nurse Aides; Proficiency of Nurse Aides; Staff Qualifications; Use of Outside Resources; Medical Director; Laboratory Services; Radiology and Other Diagnostic Services; Clinical Records; Contents of the Clinical Record; Additional Clinical Record Service Requirements; Clinical Records Service Supervisor; Disaster and Emergency Preparedness; and Quality Assessment and Assurance); §§19.2601-19.2608 and 19.2610 of this title (relating to Subchapter AA, Vendor Payment); Subchapter Y of this title [ ~~§§19.2402 - 19.2405, and 19.2407-19.2413 of this title~~ ] (relating to Medical Necessity Determinations [ ~~Subchapter Y, Medical Review and Re-evaluation~~ ]); [ ~~§§19.1801 and 19.1902 of this title (relating to General Reimbursement Information and Cost Reporting Procedures);~~ ] and Appendix B, Cost Determination Process, and Appendix C, Reimbursement Methodology for Nursing Facilities [ ~~A, General Reimbursement Methodology~~ ], of DADS' Nursing Facility Requirements for Licensure and Medicaid Certification Handbook [ ~~DHS's Long Term Care Nursing Facility Requirements for Licensure and Medicaid Certification~~ ].

(f) Rural hospital (Medicaid swing bed facility) licensure and certification requirements. Pursuant to Texas [ ~~the~~ ] Health and Safety Code §§222.021, 222.024, and 222.025 concerning the duplication of health care inspections and licensing, a rural hospital participating in the Medicaid Swing Bed Program [ ~~swing bed program~~ ] satisfies licensure and certification requirements referenced in this section when it is currently licensed and certified as a hospital by DSHS [ ~~the Texas Department of Health~~ ]. However, in accordance with Texas Human Resources Code, §32.024 [ ~~of the Human Resources Code~~ ], if the rural hospital's swing beds are used for more than one 30-day length of stay per year, per resident the hospital must comply with the full Nursing Facility Requirements.

(g) Rural hospital (Medicaid swing bed facility) administrator. The governing body of a rural hospital participating in the Medicaid Swing Bed Program satisfies the requirement to appoint a qualified full-time nursing facility administrator, found at §19.1902(b) of this title (relating to Governing Body), when it appoints a hospital administrator as its official representative and designates the administrator's responsibilities and authority, subject to the following exception. If the swing beds are used for more than one 30-day length of stay per year, per resident, the hospital's governing body must appoint a full-time licensed nursing facility [ ~~home~~ ] administrator.

(h) - (j) (No change.)

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 7, 2008.

TRD-200801793

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: May 18, 2008

For further information, please call: (512) 438-3734

Subchapter Y. MEDICAL NECESSITY DETERMINATIONS

40 TAC §§19.2401, 19.2403, 19.2407, 19.2413

STATUTORY AUTHORITY

The new sections are proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including DADS; Texas Human Resources Code, §161.021, which provides that the Aging and Disability Services Council shall study and make recommendations to the HHSC executive commissioner and the DADS commissioner regarding rules governing the delivery of services to persons who are served or regulated by DADS; Texas Government Code, §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program in each agency that operates a portion of the Medicaid program; and Texas Health and Safety Code, §242.226, which authorizes the adoption of rules necessary to improve the efficiency of the reimbursement process for the state Medicaid system and maximize the automated reimbursement system's capabilities.

The new sections affect Texas Government Code, §531.0055 and §531.021; Texas Human Resources Code, §161.021; and Texas Health and Safety Code, §242.226.

§19.2401.General Qualifications for Medical Necessity Determinations.

Medical necessity is the prerequisite for participation in the Medicaid (Title XIX) Long-term Care program. This section contains the general qualifications for a medical necessity determination. To verify that medical necessity exists, an individual must meet the conditions described in paragraphs (1) and (2) of this section.

(1) The individual must demonstrate a medical condition that:

(A) is of sufficient seriousness that the individual's needs exceed the routine care which may be given by an untrained person; and

(B) requires licensed nurses' supervision, assessment, planning, and intervention that are available only in an institution.

(2) The individual must require medical or nursing services that:

(A) are ordered by a physician;

(B) are dependent upon the individual's documented medical conditions;

(D) are provided either directly by or under the supervision of a licensed nurse in an institutional setting; and

(E) are required on a regular basis.

§19.2403.Medical Necessity Determination.

(a) Purpose. A recipient must have a determination of medical necessity for nursing facility care to participate in the Texas Medicaid Nursing Facility Program.

(1) The state Medicaid claims administrator makes a medical necessity determination by evaluating a recipient's medical and nursing needs based on the MDS assessment required by DADS.

(2) A recipient must have a determination of medical necessity for nursing facility care before the nursing facility can be paid for services, except as provided in §19.2413 of this subchapter (relating to Determination of Payment Rate Based on the MDS Assessment Submission) and §19.2611 of this chapter (relating to Retroactive Vendor Payment).

(b) Admission MDS assessment review.

(1) The admission MDS assessment review process is initiated when the state Medicaid claims administrator receives an MDS assessment and the Long-Term Care Medicaid Information Section, in accordance with §19.2413 of this subchapter, indicating that a Medicaid applicant or recipient is requesting vendor payment for care in a contracted nursing facility. A registered nurse must sign and certify that the MDS assessment is completed in accordance with §19.801 of this chapter (relating to Resident Assessment).

(2) The admission MDS assessment review determines medical necessity and establishes the authorization for payment of a calculated RUG rate.

(c) Role of the state Medicaid claims administrator. The state Medicaid claims administrator reviews all MDS assessments, including significant change in status assessments, modifications, and significant corrections, and approves or denies medical necessity in accordance with §19.2401 of this subchapter (relating to General Qualifications for Medical Necessity Determinations).

(d) Effective period.

(1) A determination of medical necessity based on the admission MDS assessment review remains in effect for the time period determined by the federal MDS submission schedule.

(2) If a nursing facility submits a recipient's MDS assessment after the due date established by the federal MDS submission schedule, the recipient's medical necessity remains in effect for the period between the due date and the date the state Medicaid claims administrator received the MDS assessment.

(3) If a nursing facility submits a recipient's MDS assessment after the due date established by the federal MDS submission schedule and, after reviewing the MDS assessment, the state Medicaid claims administrator determines that the recipient does not meet the criteria for medical necessity, the effective date of the denial of medical necessity is the date the state Medicaid claims administrator received the MDS assessment. A denial of medical necessity is conducted in accordance with §19.2407 of this subchapter (relating to Denied Medical Necessity).

(e) Permanent medical necessity.

(1) A recipient's permanent medical necessity status is established on the completion date of any MDS assessment approved for medical necessity no less than 184 calendar days after the recipient's admission to the Texas Medicaid Nursing Facility Program.

(2) A nursing facility must submit a recipient's MDS assessment in compliance with the federal MDS submission schedule even after the recipient achieves permanent medical necessity status.

(3) A recipient's permanent medical necessity status moves with the recipient, unless the recipient is discharged to home for more than 30 days.

(4) If a recipient who has permanent medical necessity status transfers to another Medicaid-certified nursing facility, the nursing facility to which the recipient transfers must complete a new MDS assessment in compliance with the federal MDS submission schedule.

(f) Insufficient information. If an MDS assessment does not have sufficient information for the state Medicaid claims administrator to make a medical necessity determination, the MDS assessment is put in suspense for 21 days with a message from the state Medicaid claims administrator informing the nursing facility that the MDS assessment has been put in suspense for 21 days. Unless the nursing facility provides sufficient information on the MDS assessment to determine medical necessity within 21 days, medical necessity is denied.

§19.2407.Denied Medical Necessity.

(a) If the state Medicaid claims administrator determines that a Medicaid applicant or a recipient does not meet the criteria for medical necessity described in §19.2401 of this subchapter (relating to General Qualifications for Medical Necessity Determinations), the state Medicaid claims administrator notifies the attending physician and the nursing facility in writing and provides them an opportunity to present additional information about the applicant's or recipient's medical need for nursing facility care.

(1) If the attending physician or a nursing facility physician does not respond or contest the findings of the state Medicaid claims administrator within 10 working days after receipt of the written notice about the decision, the findings are final.

(2) If the attending physician or a nursing facility physician contests the findings of the state Medicaid claims administrator, at least one physician with the state Medicaid claims administrator must review the case. If the state Medicaid claims administrator's physician determines that the applicant's or recipient's admission or stay is not medically necessary, the determination becomes final.

(3) The state Medicaid claims administrator sends written notification of the final determination of denied medical necessity to the attending physician, the nursing facility, and the applicant or recipient (or responsible party).

(b) After an applicant receives written notice of a determination of denied medical necessity, the applicant or responsible party must request a fair hearing within 90 days after the date of denied medical necessity, or the applicant loses the right to a fair hearing.

(c) After a recipient receives written notice of a determination of denied medical necessity, the recipient or responsible party must request a fair hearing within 10 days after the date of the written notice in order to have nursing facility services paid for during the appeal.

(1) If the recipient requests a fair hearing within 10 days after the date of the written notice and the determination of denied medical necessity is upheld, the effective date of the denial is 10 days after the hearing officer's written decision.

(2) If the recipient does not request a fair hearing within 10 days after the date of the written notice, DADS makes vendor payments to the nursing facility at the previously established RUG rate for 15 days or until the recipient is discharged, whichever occurs first.

(3) If the recipient does not request a fair hearing within 10 days after the date of the written notice, the recipient must request a fair hearing within 90 days after the date of denied medical necessity, or the recipient loses the right to a fair hearing.

(d) Fair hearings are conducted by the Texas Health and Human Services Commission (HHSC) in accordance with HHSC rules at 1 TAC Chapter 357.

§19.2413.Determination of Payment Rate Based on the MDS Assessment Submission.

(a) Definitions. In this section, the following words and terms have the following meanings unless the context clearly indicates otherwise.

(1) All conditions of eligibility--A recipient meets all conditions of eligibility when the state Medicaid claims administrator approves the recipient for medical necessity and the recipient meets financial eligibility for Medicaid.

(2) On-time MDS assessment--An MDS assessment that is submitted in accordance with the federal MDS submission schedule and is received by the state Medicaid claims administrator within 31 days after the completion date.

(3) Missed MDS assessment--An MDS assessment that is received by the state Medicaid claims administrator outside the time period that the MDS assessment covers.

(b) MDS submission requirement. A nursing facility must:

(1) complete all MDS assessments according to CMS' instructions;

(2) submit a recipient's MDS assessment, including an admission MDS assessment, a quarterly MDS assessment, and a significant change in status assessment, to the state MDS database in compliance with the federal MDS submission schedule;

(3) submit the Long-Term Care Medicaid Information Section to the state Medicaid claims administrator; and

(4) submit the recipient's MDS assessment in compliance with the federal MDS submission schedule even after the recipient has permanent medical necessity as described in §19.2403(e) of this subchapter (relating to Medical Necessity Determination).

(1) If a nursing facility discharges a recipient with a status of return not anticipated, and the recipient returns to the facility, the nursing facility must complete an admission MDS assessment for a determination of medical necessity and establishment of a RUG rate, regardless of the amount of time between the recipient's discharge and return.

(2) A nursing facility must complete and submit an admission MDS assessment to receive payment for a recipient's period of stay in the nursing facility, even if the recipient leaves the nursing facility before the MDS assessment is completed and never returns long enough for the MDS assessment to be completed. See subsection (i) of this section for completion of an admission MDS assessment in the event of a recipient's death.

(3) DADS pays a calculated RUG rate for an admission MDS assessment from the date the recipient was admitted to the nursing facility, except as provided in §19.2611 of this chapter (relating to Retroactive Vendor Payments).

(d) Payment of a calculated RUG rate. If a recipient meets all conditions of eligibility, DADS pays a calculated RUG rate for an MDS assessment if it is received by the state Medicaid claims administrator during the time period that the MDS assessment covers.

(e) On-time MDS assessment. If a recipient meets all conditions of eligibility, DADS pays a calculated RUG rate from the completion date of the required MDS assessment, except for an admission MDS assessment as described in subsection (c)(3) of this section.

(f) MDS assessments that are not on time. The state Medicaid claims administrator stops payment for services if the state Medicaid claims administrator does not receive an on-time MDS assessment. Payment for services resumes when the state Medicaid claims administrator receives all MDS assessments that are due as required by the federal MDS submission schedule.

(g) Missed MDS assessments. When the state Medicaid claims administrator receives a missed MDS assessment, DADS pays the nursing facility a default RUG rate for the entire period of the missed MDS assessment if the recipient meets financial eligibility for Medicaid, except as provided in paragraph (2) of this subsection.

(1) If an MDS assessment is missed for the purpose of calculating a RUG rate, the nursing facility must still submit the MDS assessment to comply with §19.801 of this chapter (relating to Resident Assessment).

(2) For a newly contracted nursing facility and a nursing facility that undergoes a change of ownership, DADS pays the calculated RUG rate for any missed MDS assessments that occur while the nursing facility is unable to submit MDS assessments to the state MDS database.

(h) Significant change in status assessment, modification, or significant correction. If a recipient meets all conditions of eligibility, DADS pays the calculated RUG rate from the completion date of a significant change in status assessment, modification, or significant correction.

(i) Incomplete or erroneous MDS assessments. If an applicant meets all conditions of eligibility, DADS pays a default rate for an MDS assessment that is incomplete or has errors.

(j) Prohibition against recourse. A nursing facility must not charge and must not take any other recourse against a recipient, the recipient's family members, the recipient's estate or the recipient's representative for a claim that is reduced because the facility failed to comply with a DADS rule or procedure pertaining to reimbursement.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 7, 2008.

TRD-200801794

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: May 18, 2008

For further information, please call: (512) 438-3734

Subchapter Y. MEDICAL REVIEW AND RE-EVALUATION

40 TAC §§19.2402 - 19.2404, 19.2407 - 19.2410, 19.2413

(Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Department of Aging and Disability Services or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

STATUTORY AUTHORITY

The repeal affects Texas Government Code, §531.0055 and §531.021; Texas Human Resources Code, §161.021; and Texas Health and Safety Code, §242.226.

§19.2402.Utilization Review Plan.

§19.2403.Utilization Review Process.

§19.2404.Utilization Review Effective Dates.

§19.2407.Denied Medical Necessity.

§19.2408.Retroactive Medical Necessity Determinations.

§19.2409.General Qualifications for At-Risk Assessments and Medical Necessity Determinations.

§19.2410.Criteria Specific to a Medical Necessity Determination.

§19.2413.Reconsideration of Medical Necessity (MN) Determination and Effective Dates.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 7, 2008.

TRD-200801795

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: May 18, 2008

For further information, please call: (512) 438-3734

Subchapter Z. PREADMISSION SCREENING AND RESIDENT REVIEW (PASARR)

40 TAC §19.2500

STATUTORY AUTHORITY

The amendment affects Texas Government Code, §531.0055 and §531.021; Texas Human Resources Code, §161.021; and Texas Health and Safety Code, §242.226.

§19.2500.Preadmission Screening and Resident Review (PASARR).

(a) Definitions. The following words and terms, when used in this section, [ ~~shall~~ ] have the following meanings, unless the context clearly indicates otherwise:

(1) - (25) (No change.)

(26) PASARR determination - A decision made by DADS or its designee [ ~~Texas Department of Human Services (DHS) PASARR Determination Program professional staff~~ ] to establish if an individual requires the level of services provided in a nursing facility, as defined by medical necessity, if the individual has the need for specialized services for mental illness, mental retardation, and/or a related condition. The decisions are based on information included in the Level II PASARR Assessment.

(27) - (29) (No change.)

(30) Specialized services for individuals with mental retardation or a related condition - A continuous program for each resident [ ~~client~~ ], which includes aggressive, consistent implementation of specialized and generic training, treatment, health services and related services that is directed toward:

(A) the acquisition of the behaviors necessary for the resident [ ~~client~~ ] to function with as much self-determination and independence as possible; and

(B) the prevention or deceleration of regression or loss of current optimal functional status. Specialized services do not include services to maintain generally independent residents [ ~~clients~~ ] who are able to function with little supervision or in the absence of a continuous specialized services program.

(31) - (33) (No change.)

(b) Preadmission screenings.

(1) - (3) (No change.)

(4) Level II - PASARR assessment [ ~~Level II Assessment~~ ]. DADS or its designee assesses [ ~~DHS staff must assess~~ ] the need for nursing facility and specialized services.

(A) The assessment process consists of a:

(i) PASARR preadmission [ ~~nursing facility~~ ] assessment; and

(ii) Level II - PASARR assessment. [ ~~PASARR mental illness assessment (as appropriate); and~~ ]

~~[ ~~(iii)~~ PASARR mental retardation and related conditions assessment (as appropriate).]~~

(B) (No change.)

(C) It is the responsibility of the nursing facility to submit the required PASARR assessment to DADS or its designee [ ~~contact the PASARR unit of DHS~~ ] and request screening of any resident suspected of having MI, MR, or RC.

(1) The nursing facility will promptly notify DADS or its designee [ ~~the mental health mental retardation authority, and PASARR unit of DHS~~ ] after a significant change in the physical or mental condition of a resident that relates to the MI, MR, or RC diagnosis.

(2) DADS or its designee conducts [ ~~The PASARR unit of DHS will conduct~~ ] a review, as described in subsection (b)(4) of this section, and makes [ ~~make~~ ] a determination, as described in subsection (d) of this section.

(3) DADS or its designee [ ~~DHS staff~~ ] must evaluate and contact the attending physician when there is a question regarding a resident's [ ~~an individual's~~ ] capacity to understand and meaningfully participate in the decisions regarding his eligibility to remain in the nursing facility, be alternately placed, receive specialized services, and/or initiate appeals.

(A) A surrogate decision maker will be assigned by the attending physician if there is a question regarding capacity and the resident [ ~~individual~~ ] meets the criteria in the Consent to Medical Treatment Act, Health and Safety Code, Chapter 313, as referenced in §19.420(a)(3) of this chapter [ ~~title~~ ] (relating to Documentation for the Delegation of Long-Term Care Resident's Rights).

(B) A resident [ ~~An individual~~ ] will be referred to probate or county court for the assignment of a legal guardian if:

(i) (No change.)

(ii) there is a question regarding capacity, but the resident [ ~~individual~~ ] does not meet the criteria for a surrogate decision maker under §19.420(a)(3) of this chapter [ ~~title (relating to Documentation for the Delegation of Long-Term Care Resident's Rights)~~ ].

(d) Determination process.

(1) The assessment data is analyzed by a qualified mental health and/or mental retardation professional in order to determine whether:

(A) Nursing facility services are needed, as described in §19.2401 [ ~~§§19.2409 and 19.2410~~ ] of this chapter [ ~~title~~ ] (relating to General Qualifications for Medical Necessity Determinations [ ~~and Criteria Specific to a Medical Necessity Determination~~ ]).

(B) - (C) (No change.)

(2) One of the following determinations is made:

(A) - (B) (No change.)

(C) Nursing facility services are not needed but specialized services are needed. Those individuals may not be admitted to or continue residing in a nursing facility except as described in paragraph (3) [ ~~(d)(3)~~ ] of this subsection [ ~~section~~ ]. Those individuals who are current nursing facility residents must be alternately placed as described in subsection (e) of this section.

(D) Nursing facility services are not needed and specialized services are not needed. Those individuals may not be admitted to or continue residing in a nursing facility. Those individuals who are current nursing facility residents must be alternately placed, according to discharge procedures stated under §19.502 of this chapter [ ~~title~~ ] (relating to Transfer and Discharge in Medicaid-certified [ ~~Medicaid-Certified~~ ] Facilities).

(3) (No change.)

(4) If during the determination process DADS or its designee [ ~~DHS~~ ] ascertains that a person does not have MI/MR/RC, the PASARR determination process is [ ~~will be~~ ] discontinued and the individual may be admitted to the nursing facility.

(5) DADS or its designee notifies [ ~~DHS will notify~~ ] all individuals and their legal representative or surrogate decision maker (SDM) [ ~~decisionmaker (SDM)~~ ] of the results of their PASARR determination through a letter sent to them, the nursing facility administrator, the attending physician, [ ~~and~~ ] the local mental retardation authority (MRA) or local mental health authority (MHA) as applicable, the Office of the State Long-Term Care Ombudsman [ ~~Texas Department of Mental Health and Mental Retardation authorities, the Texas Department on Aging (TDoA)~~ ], and Texas Health and Human Services Commission (HHSC) [ ~~the local~~ ] Medicaid eligibility staff [ ~~unit~~ ]. Individuals who have undergone a preadmission screening or change in condition are [ ~~will be~~ ] notified within 10 calendar days of the determination.

(6) Any individual, or his legal representative or responsible party or SDM, not in agreement with the PASARR determination may file an appeal with HHSC [ ~~DHS~~ ] to receive a [ ~~DHS~~ ] fair hearing according to 1 TAC Chapter 357 [ ~~Chapter 79 of this title (relating to Legal Services)~~ ].

(A) If [ ~~When~~ ] the hearing officer reverses DADS' or its designee's [ ~~DHS's~~ ] determination regarding nursing facility admission, the individual seeking entry into the nursing facility may be admitted immediately; and as long as the individual meets all other eligibility requirements, the facility may receive vendor payments. Current residents who have met all eligibility criteria may continue to reside in the facility and receive Medicaid reimbursement retroactive to the date when medical and financial eligibility were in effect.

(B) If [ ~~When~~ ] the hearing officer sustains DADS' or its designee's [ ~~DHS's~~ ] determination regarding nursing facility admission, the individual seeking entry into the nursing facility may not enter the facility and may not be Medicaid-certified for nursing facility placement. Current residents who have met all eligibility criteria may be alternately placed.

(e) Specialized services and alternate placement.

(1) DADS requests [ ~~The Texas Department of Mental Health and Mental Retardation (TDMHMR) contracts with~~ ] the local MRA to provide service coordination, [ ~~MHMR authority to purchase~~ ] case management, specialized services, and [ ~~procure~~ ] alternate placement services for persons with mental retardation determined by DADS or its designee [ ~~DHS~~ ] to require specialized services and/or request alternate placement. The Department of State Health Services requests the local MHA to provide service coordination, case management, specialized services, and alternate placement services for persons with mental illness determined to require specialized services, alternate placement, or both.

(2) A service coordinator must [ ~~case manager will~~ ] be assigned for those residents who require specialized services and/or request alternate placement.

(3) DADS [ ~~DHS~~ ] provides specialized rehabilitative services, as stated under §19.1303(a) of this chapter [ ~~title~~ ] (relating to Specialized Services in Medicaid-certified [ ~~Medicaid-Certified~~ ] Facilities).

(4) An interdisciplinary team is [ ~~will be~~ ] constituted by the physician, mental health/mental retardation professional, Director of Nurses, or other professionals as appropriate, the resident and legal representative, responsible party or SDM to develop a plan for specialized services and/or alternate placement. This team will identify those additional services required for specialized services that are not already being provided by the nursing facility and covered in the nursing facility daily vendor rate.

(5) The service coordinator must [ ~~case manager will~~ ] provide a monthly written report [ ~~monthly~~ ] to the primary or attending physician and to the nursing facility regarding the delivery of specialized services and alternate placement activities. The report will be retained in the resident's clinical record.

(6) The nursing facility must allow Office of the State Long-Term Care Ombudsman [ ~~Tdoa~~ ] staff or representatives from Advocacy, Inc., to counsel and inform affected residents of their rights and options under PASARR.

(7) Specialized services and nursing facility services must [ ~~are to~~ ] be coordinated and integrated for maximum benefit to the resident. A nursing facility must allow for the MRA or MHA, as applicable, [ ~~MHMR authority~~ ] or a subcontracted provider to provide specialized services within the facility. If a nursing facility accepts individuals or has individuals who require specialized services for their mental condition, it must establish and maintain a written cooperative agreement with the local MRA or MHA [ ~~MHMR authority~~ ] that includes:

(A) (No change.)

(B) a provision allowing the MRA staff or MHA [ ~~MHMR authority~~ ] staff to access the resident's clinical record and assessment information to avoid unnecessary duplication of services, with appropriate consent of the eligible resident, legal representative, responsible party or SDM;

(C) a provision allowing the MRA staff or MHA [ ~~MHMR authority~~ ] staff an opportunity to participate in or provide information for the facility's admission, programmatic, and discharge-planning meetings when the specialized services needs of an eligible resident are being considered; and

(D) a provision allowing the nursing facility staff to participate in or provide information to the service coordinator [ ~~MHMR authority case manager~~ ] during each resident's specialized services planning.

(8) The service coordinator [ ~~case manager~~ ] must provide and the nursing facility must maintain, as a separate document in the resident's record, a copy of the original Individual Specialized Services Plan developed by the interdisciplinary team, and any subsequent changes.

(9) The service coordinator [ ~~case manager~~ ] must provide to the facility and the facility must document in the comprehensive care plan the following information from the specialized services plan, the designated provider, the service coordinator [ ~~case manager~~ ], other written report, and documented telephone contacts:

(A) - (D) (No change.)

(10) (No change.)

(11) If a resident [ ~~the individual~~ ] requires specialized rehabilitation services, the facility must cooperate in obtaining the screening or evaluation.

(12) For those residents who have been determined to be appropriately placed in a nursing facility and to need specialized services and who desire alternate placement, the following alternate placement activities occur:

(A) The MRA or MHA, as applicable, [ ~~MHMR authority~~ ] shall locate alternate placement in consultation with the resident or his legal representative.

(B) - (C) (No change.)

(13) For those residents who have been determined to not need nursing facility services and to need specialized services and who have 30 continuous months of nursing facility residence, a choice will be offered to either seek alternate placement or remain in the nursing facility. If the resident, legal representative, or SDM chooses alternate placement, the following alternate placement activities occur:

(A) The MRA or MHA, as applicable, [ ~~MHMR authority~~ ] shall locate alternate placement in consultation with the resident, his legal representative, or SDM.

(B) - (C) (No change.)

(14) For those residents determined not to need nursing facility services and to need specialized services but who do not have 30 months continuous residence, the resident will be discharged according to procedures stated under §19.502 of this chapter [ ~~title (relating to Transfer and Discharge)~~ ].

(f) Limitations on provider charges. Nursing facilities that [ ~~which~~ ] admit or retain residents [ ~~individuals~~ ] with a diagnosis of mental illness, mental retardation, or a related condition who have not been screened by DADS or its designee [ ~~DHS~~ ] or that [ ~~who~~ ] admit or retain residents [ ~~individuals~~ ] who do not need nursing facility services and who require specialized services will not be reimbursed for that resident [ ~~individual~~ ], as described in §19.2608 of this chapter [ ~~title~~ ] (relating to Limitations on Provider Charges).

(g) Discharge planning. Nursing facilities must provide discharge planning services to all residents who are to be alternately placed as described in this section and provide residents those rights described in §19.502 of this chapter [ ~~title (relating to Transfer and Discharge)~~ ].

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 7, 2008.

TRD-200801796

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: May 18, 2008

For further information, please call: (512) 438-3734

Subchapter AA. VENDOR PAYMENT

40 TAC §§19.2609, 19.2611, 19.2615

STATUTORY AUTHORITY

The amendment and new sections are proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including DADS; Texas Human Resources Code, §161.021, which provides that the Aging and Disability Services Council shall study and make recommendations to the HHSC executive commissioner and the DADS commissioner regarding rules governing the delivery of services to persons who are served or regulated by DADS; Texas Government Code, §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program in each agency that operates a portion of the Medicaid program; and Texas Health and Safety Code, §242.226, which authorizes the adoption of rules necessary to improve the efficiency of the reimbursement process for the state Medicaid system and maximize the automated reimbursement system's capabilities.

The amendment and new sections affect Texas Government Code, §531.0055 and §531.021; Texas Human Resources Code, §161.021; and Texas Health and Safety Code, §242.226.

§19.2609.Payment of Claims.

To [ ~~In order to~~ ] receive payment for a service, a nursing facility must submit a [ ~~services provided, the nursing facility's~~ ] complete and accurate claim to the state Medicaid claims administrator so that it is received [ ~~for services for which the nursing facility is entitled to payment must be received by the Texas Department of Human Services' (DHS's) claims processor~~ ] within 12 months after the date of service. In [ ~~For purposes of~~ ] this section, the date of service is [ ~~defined as~~ ] the last day of the month in which the service was provided. [ ~~Claims for services delivered before the effective date of this section must be submitted within 12 months of the effective date of this section.~~ ]

(1) (No change.)

(2) A nursing facility must submit claims and adjustments rejected or denied to the state Medicaid claims administrator within 12 months after the date of service. DADS may pay for claims and adjustments rejected or denied during the 12-month period through no fault of the nursing facility [ Adjustments to claims must be received by DHS's claims processor during the applicable 12-month period. Claims and adjustments rejected or denied during the 12-month period through no fault of the nursing facility may be paid upon approval by DHS ].

(3) If a recipient's [ ~~In the event that~~ ] Medicaid eligibility [ ~~for benefits~~ ] is established after [ ~~provision of~~ ] services are provided to the recipient, the nursing facility must submit the claim for service to the state Medicaid claims administrator within 12 months after [ ~~, the 12-month period for submission of claims will start on~~ ] the date eligibility is established.

(4) A nursing facility may resubmit a claim after the 12-month period in the case of state-generated retroactive payments. [ ~~The requirement to submit claims within 12 months of the date of service does not prohibit a provider from re-billing in the case of state-generated retroactive adjustments.~~ ]

(5) The provisions of [ ~~procedures outlined in~~ ] §19.2413 of this chapter [ ~~title~~ ] (relating to Determination of Payment Rate Based on the MDS Assessment Submission [ ~~Reconsideration of Medical Necessity (MN) Determination and Effective Dates~~ ]) apply to [ ~~are not affected by~~ ] this section.

(6) DADS recoups any inadvertent payments made to a facility.

§19.2611.Retroactive Vendor Payment.

(a) In this section, retroactive vendor payment is payment DADS makes retroactively to a nursing facility for services the nursing facility provided to an individual who was eligible for, but had not yet applied for, Medicaid. A nursing facility is eligible for up to three months retroactive vendor payment for services it provided, if:

(1) the individual resided in a Medicaid-certified nursing facility, or a distinct part, during the time services were provided;

(2) the individual did not receive Supplemental Security Income cash benefits;

(3) the individual met Medicaid financial eligibility requirements;

(4) the state Medicaid claims administrator has a current MDS assessment for the individual that the facility submitted in compliance with the federal MDS submission requirements; and

(5) the nursing facility met physician certification and plan of care requirements during the time services were provided.

(b) After receipt of an application for Medicaid, Texas Health and Human Services Commission (HHSC) Medicaid eligibility staff notify the applicant whether the applicant meets financial eligibility. The state Medicaid claims administrator uses the applicant's current MDS assessment to make the MN determination and determine the effective date of the MN determination. For the purpose of establishing three months prior eligibility, the effective date of the MN determination for a new recipient is the first day of the month in which the recipient qualified for MN.

(c) If the requirements in subsection (a) of this section are met, DADS makes a retroactive vendor payment based on the recipient's calculated RUG rate for the period covered by the retroactive vendor payment.

(d) DADS or HHSC may verify that the recipient's record includes the required physician's certification, recertification, and plans of care, and that the plans were reviewed as required during the applicable periods.

(e) If a recipient paid the nursing facility for services for which the facility later receives retroactive vendor payment, the facility must reimburse the recipient the full amount the recipient paid, beginning with the effective date of Medicaid eligibility, minus any applied income or co-payment as determined by HHSC Medicaid eligibility staff.

§19.2615.Resident Transaction Notices.

A nursing facility must electronically submit to the state Medicaid claims administrator a resident transaction notice within 72 hours after a recipient's admission or discharge from the Medicaid nursing facility vendor payment system. The nursing facility administrator must sign the resident transaction notice.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 7, 2008.

TRD-200801797

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: May 18, 2008

For further information, please call: (512) 438-3734

Subchapter E. RESIDENT RIGHTS

40 TAC §19.413

The Health and Human Services Commission (HHSC) proposes, on behalf of the Department of Aging and Disability Services (DADS), an amendment to §19.413, concerning access and visitation rights, in Chapter 19, Nursing Facility Requirements for Licensure and Medicaid Certification.

BACKGROUND AND PURPOSE

The purpose of the amendment is to update §19.413 to be consistent with §712(b) of the Older Americans Act of 1965, as amended in 2006. Section 712(b) requires the State to ensure that certified ombudsmen and staff of the Office of the State Long-Term Care Ombudsman (the Office) have appropriate access to long-term care facilities, residents in those facilities, and residents' clinical records. The proposed amendment will ensure DADS is in compliance with the Older Americans Act by clarifying that nursing facilities must give certified volunteer ombudsmen access to residents' medical and social records.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §19.413 requires a facility to allow a certified ombudsman and a staff person of the Office access to a resident's medical and social records, if the certified ombudsman or staff person of the Office has the consent of the resident or the legally authorized representative of the resident. The facility must also allow a certified ombudsman and a staff person of the Office access to the medical and social records of a resident 60 years of age or older, in accordance with the Older Americans Act. The amendment also requires that a certified ombudsman and a staff person of the Office have access to documented administrative policies of the nursing facility.

The amendment cross-references two rules in Chapter 85 (§85.2 and §85.401) that are proposed elsewhere in this issue of the Texas Register . Proposed new §85.2 defines a certified ombudsman as a certified staff ombudsman or a certified volunteer ombudsman. Proposed new §85.401(r) defines a representative of the Office of the State Long-Term Care Ombudsman as a staff person of the Office, a certified ombudsman, or an ombudsman intern.

The amendment updates state agency names to ensure the rule reflects changes resulting from the consolidation of health and human services agencies in 2004.

FISCAL NOTE

Gordon Taylor, DADS Chief Financial Officer, has determined that, for the first five years the proposed amendment is in effect, enforcing or administering the amendment does not have foreseeable implications relating to costs or revenues of state or local governments.

SMALL BUSINESS AND MICRO-BUSINESS IMPACT ANALYSIS

DADS has determined that the proposed amendment will not have an adverse economic effect on small businesses or micro-businesses, because the amendment imposes no new obligations on facilities that would require them to alter their business practices.

PUBLIC BENEFIT AND COSTS

Veronda Durden, DADS Assistant Commissioner for Regulatory Services, has determined that, for each year of the first five years the amendment is in effect, the public benefit expected as a result of enforcing the amendment is that DADS' rule will be in compliance with federal provisions of the Older Americans Act.

Ms. Durden anticipates that there will not be an economic cost to persons who are required to comply with the amendment. The amendment will not affect a local economy.

TAKINGS IMPACT ASSESSMENT

PUBLIC COMMENT

Questions about the content of this proposal may be directed to Jennifer Morrison at (512) 438-4624 in DADS' Regulatory Services Division. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-012, Department of Aging and Disability Services W-615, P.O. Box 149030, Austin, Texas 78714-9030, or street address 701 West 51st St., Austin, TX 78751; faxed to (512) 438-5759; or e-mailed to rulescomments@dads.state.tx.us. To be considered, comments must be submitted no later than 30 days after the date of this issue of the Texas Register . The last day to submit comments falls on a Sunday; therefore, comments must be either (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered to DADS before 5:00 p.m. on DADS' last working day of the comment period; or (3) faxed or e-mailed by midnight on the last day of the comment period. When faxing or e-mailing comments, please indicate "Comments on Proposed Rule 012" in the subject line.

STATUTORY AUTHORITY

The amendment implements Texas Government Code, §531.0055, Texas Human Resources Code, §161.021; and Texas Health and Safety Code, §§242.001 - 242.906.

§19.413.Access and Visitation Rights.

(a) A [ ~~The~~ ] resident has the right to have access to, and the facility must provide immediate access to a [ ~~any~~ ] resident to, [ by ] the following:

(1) in Medicaid-certified facilities, a [ ~~any~~ ] representative of the Secretary of Health and Human Services;

(2) a [ ~~any~~ ] representative of the State of Texas;

(3) (No change.)

(4) a [ ~~any~~ ] representative of the Office of the State Long Term Care Ombudsman (the Office), as described in §85.401(r) of this title (relating to Long-Term Care Ombudsman Program ) [ ~~, Texas Department on Aging~~ ];

(5) a [ ~~any~~ ] representative of Advocacy , Incorporated, [ ~~Agency on Aging, or the office of the state long-term-care ombudsman~~ ] which [ ~~who~~ ] is responsible for the protection and advocacy system [ ~~systems~~ ] for developmentally disabled individuals established under the Developmental Disabilities Assistance and Bill of Rights Act, part C;

(6) a [ ~~any~~ ] representative of Advocacy, Incorporated, which [ ~~the Texas Department of Mental Health and Mental Retardation who~~ ] is responsible for the protection and advocacy system [ ~~systems~~ ] for mentally ill individuals established under the Protection and Advocacy for Mentally Ill Individuals Act;

(7) subject to the resident's [ ~~residents'~~ ] right to deny or withdraw consent at any time, immediate family or other relatives of the resident; and

(8) (No change.)

(b) A [ ~~The~~ ] facility must provide reasonable access to a [ ~~any~~ ] resident by any entity or individual that provides health, social, legal, or other services to the resident, subject to the resident's right to deny or withdraw consent at any time.

(c) A facility must allow a certified ombudsman, as defined in §85.2 of this title (relating to Definitions), and a staff person of the Office access: [ The facility must allow representatives of the state ombudsman cited in subsection (a)(4) of this section to examine a resident's clinical records with the permission of the resident or the resident's legal representative, and consistent with state law. ]

(1) to the medical and social records of a resident, including an incident report involving the resident, if the certified ombudsman or staff person of the Office has the consent of the resident or the legally authorized representative of the resident;

(2) to the medical and social records of a resident 60 years of age or older, including an incident report involving the resident, in accordance with the Older Americans Act, §712(b); and

(3) to the administrative records, policies, and documents of the facility to which the facility residents or general public have access.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 7, 2008.

TRD-200801813

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: May 18, 2008

For further information, please call: (512) 438-3734

Chapter 30. MEDICAID HOSPICE PROGRAM

The Health and Human Services Commission (HHSC) proposes, on behalf of the Department of Aging and Disability Services (DADS), amendments to §30.14, concerning certification of terminal illness; §30.60, concerning Medicaid hospice payments and limitations; §30.62, concerning Medicaid hospice claims requirements; and §30.92, concerning Texas Index for Level of Effort (TILE) assessments, in Chapter 30, Medicaid Hospice Program.

BACKGROUND AND PURPOSE

The purpose of the amendments is to implement rule changes necessitated by a project under the direction of HHSC that will replace the state case-mix system for provider payments, which is based on the Texas Index for Level of Effort (TILE) model, with the federal case-mix system, which is based on the federal Resource Utilization Group (RUG) model. The TILE-to-RUG project implements Texas Health and Safety Code, §§242.221 et seq, which requires DADS to use an automated system for nursing facility reimbursement and an assessment form designed by the United States Health Care Financing Administration (now the Centers for Medicare and Medicaid Services). As allowed by Texas Health and Safety Code, §242.221(b), DADS and HHSC have elected to add other components of the state Medicaid program, such as the Medicaid Hospice Program, to the automated system of reimbursement. Medicaid hospice providers, therefore, will be required to use the Minimum Data Set (MDS) assessment forms, rather than the TILE-based assessments they currently use, for making medical necessity determinations and calculating the RUG.

The purpose of the amendments is also to update agency names and rule cross-references.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §30.14 replaces a requirement that a hospice provider retain copies of a current TILE assessment, if applicable, with a requirement that the hospice provider retain copies of the current MDS assessment. The amendment also corrects the section title in a rule cross-reference.

The proposed amendment to §30.60 replaces references to the TILE assessment with references to the MDS assessment. New language is added in subsection (e)(1) to provide the time frames for submitting the MDS assessment based on whether a hospice recipient or applicant is currently residing in a nursing facility or is newly admitted to the nursing facility. The proposed amendment also replaces references to the Texas Department of Human Services (DHS) with references to DADS and replaces the name of the former claims administrator with a more generic term.

The proposed amendment to §30.62 replaces a reference to the TILE assessment with a reference to the MDS assessment.

The proposed amendment to §30.92 changes the name of the section and updates section titles in several cross-references to HHSC rules that are being amended because of the TILE to RUG conversion project.

FISCAL NOTE

Gordon Taylor, DADS Chief Financial Officer, has determined that, for the first five years the proposed amendments are in effect, enforcing or administering the amendments does not have foreseeable implications relating to costs or revenues of state or local governments.

SMALL BUSINESS AND MICRO-BUSINESS IMPACT ANALYSIS

DADS has determined that the proposed amendments will not have an adverse economic effect on small businesses or micro-businesses, because the amendments impose no new requirements that would cause them to alter their business practices.

PUBLIC BENEFIT AND COSTS

Barry Waller, DADS Assistant Commissioner for Provider Services, has determined that, for each year of the first five years the amendments are in effect, the public benefit expected as a result of enforcing the amendments is that DADS rules will provide accurate requirements for Medicaid hospice providers. The amendments, which require hospice providers to conduct assessments of individuals on the same form on which nursing facility residents are assessed, will allow for better comparison of services in Texas to services in other states and provide for more streamlined and integrated business processes. These improvements will in turn lead to opportunities for improved services for DADS' consumers.

Mr. Waller anticipates that there will not be an economic cost to persons who are required to comply with the amendments. The amendments will not affect a local economy.

TAKINGS IMPACT ASSESSMENT

PUBLIC COMMENT

Questions about the content of this proposal may be directed to Lynn Cooper at (512) 438-3159 in DADS' Provider Services Division. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-011, Department of Aging and Disability Services W-615, P.O. Box 149030, Austin, Texas 78714-9030, or street address 701 West 51st St., Austin, TX 78751; faxed to (512) 438-5759; or e-mailed to rulescomments@dads.state.tx.us . To be considered, comments must be submitted no later than 30 days after the date of this issue of the Texas Register . The last day to submit comments falls on a Sunday; therefore, comments must be either (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered to DADS before 5:00 p.m. on DADS' last working day of the comment period; or (3) faxed or e-mailed by midnight on the last day of the comment period. When faxing or e-mailing comments, please indicate "Comments on Proposed Rule 011" in the subject line.

Subchapter B. ELIGIBILITY REQUIREMENTS

40 TAC §30.14

STATUTORY AUTHORITY

The amendment affects Texas Government Code, §531.0055 and §531.021; Texas Human Resources Code, §161.021; and Texas Health and Safety Code, §242.226.

§30.14.Certification of Terminal Illness.

(a) Timing of certification.

(1) (No change.)

(2) For the initial period, the physician(s) must sign and date the Medicaid Hospice Program Physician Certification of Terminal Illness form before the hospice submits an initial request for payment. The physician must sign and date the Medicaid Hospice Program Physician Certification of Terminal Illness form in all cases before the expiration date of each six-month certification period. Forms must be submitted by the hospice as outlined in §30.62 of this chapter [ ~~title~~ ] (relating to Medicaid Hospice Claims [ ~~Processing~~ ] Requirements) and must be submitted before billing.

(b) - (e) (No change.)

(f) Record maintenance. The hospice provider must retain copies of all physician certification statements, a current Minimum Data Set (MDS) assessment [ ~~Texas Index for Level of Effort (TILE)~~ ] or current level of need (LON) assessment, if applicable, and the client-specific comprehensive assessment in the recipient's records at the hospice and the nursing facility clinical record or ICF/MR-RC client record, if applicable.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 7, 2008.

TRD-200801798

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: May 18, 2008

For further information, please call: (512) 438-3734

Subchapter F. REIMBURSEMENT

40 TAC §30.60, §30.62

STATUTORY AUTHORITY

The amendments affect Texas Government Code, §531.0055 and §531.021; Texas Human Resources Code, §161.021; and Texas Health and Safety Code, §242.226.

§30.60.Medicaid Hospice Payments and Limitations.

(a) Medicaid hospice per diem rates. For each day that an individual is under the care of a hospice, the hospice will be reimbursed an amount applicable to the type and intensity of the services furnished to the individual for that day. For continuous home care, the amount of payment is determined based on the number of hours of continuous care furnished to the beneficiary on that day.

(1) (No change.)

(2) Continuous home care. The hospice will be paid the continuous home care rate when continuous home care is provided. The continuous home care rate is divided by 24 hours in order to arrive at an hourly rate. A minimum of 8 hours must be provided. For every hour or part of an hour of continuous care furnished, the hourly rate will be reimbursed to the hospice up to 24 hours a day. A maximum of five consecutive days are allowed for reimbursement. Additional days may be allowed with approval from the [ ~~Texas~~ ] Department of Aging and Disability [ ~~Human~~ ] Services (DADS) [ ~~(DHS)~~ ].

(3) Inpatient respite care. The hospice will be paid at the inpatient respite care rate for each day on which the beneficiary is in an approved inpatient facility and is receiving respite care. Payment for respite care may be made for a maximum of 5 days at a time including the date of admission but not counting the date of discharge. Payment for the sixth and any subsequent days is to be made at the routine home care rate.

(A) - (B) (No change.)

(4) General Inpatient Care. Payment is made at the general inpatient rate when general inpatient care is provided.

(A) (No change.)

(B) For the day of discharge, DADS [ ~~DHS~~ ] pays the routine home care rate.

(D) (No change.)

(b) Medicaid payments for physician services.

(1) - (2) (No change.)

(3) Payments for non-hospice physician services to Medicaid hospice recipients are made directly to physicians by Medicaid through DADS' claims processor [ ~~the National Heritage Insurance Company (NHIC)~~ ].

(4) (No change.)

(e) Medicaid time limitations for DADS [ ~~DHS~~ ] hospice payment.

(1) To receive payment of the hospice nursing facility rate, the hospice and nursing facility providers must have completed and submitted a Minimum Data Set (MDS) assessment for [ ~~complete and submit the Texas Index for Level of Effort (TILE) assessment on~~ ] the hospice recipient or applicant [ ~~in a nursing facility within 20 days of either or both hospice election or entrance to the nursing facility~~ ].

(A) For a hospice recipient or applicant currently residing in the facility with a current MDS assessment, no action is required until the next required MDS assessment.

(B) For a hospice recipient or applicant newly admitted to the facility, the hospice and the nursing facility must complete and submit an MDS assessment as required by §19.801 of this title (relating to Resident Assessment).

(2) An MDS assessment [ ~~TILE Assessments~~ ] received after the required date [ ~~20th day~~ ] will have the stamp-in date as the effective date.

(f) - (h) (No change.)

(i) Medicaid payment limitations for inpatient care. During the 12-month period beginning November 1 of each calendar year and ending October 31 of the following calendar year (the cap year), the aggregate number of inpatient hospice care days must not exceed 20% of the aggregate total number of all hospice care days for the same cap year. This limitation is applied once each year, at the end of the cap year for each Medicaid hospice provider. If it is determined that the inpatient rate should not be paid, any days for which the hospice receives payment at a home care rate are not counted as inpatient days. The limitation is calculated as follows:

(1) - (3) (No change.)

(4) If the inpatient care maximum has been exceeded, DADS [ ~~DHS~~ ] recoups excess payments from subsequent Medicaid hospice provider claims.

§30.62.Medicaid Hospice Claims Requirements.

(a) (No change.)

(b) Submittal and forms completion requirements. To receive Medicaid hospice payments, the hospice must submit the following documents to DADS' claims processor:

(1) - (2) (No change.)

(3) Minimum Data Set (MDS) assessment [ ~~Texas Index for Level of Effort (TILE) Assessment form~~ ], if applicable; and

(4) (No change.)

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 7, 2008.

TRD-200801799

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: May 18, 2008

For further information, please call: (512) 438-3734

Subchapter I. MEDICAL REVIEW AND RE-EVALUATION

40 TAC §30.92

STATUTORY AUTHORITY

The amendment affects Texas Government Code, §531.0055 and §531.021; Texas Human Resources Code, §161.021; and Texas Health and Safety Code, §242.226.

§30.92. Minimum Data Set Assessment [ ~~Texas Index for Level of Effort (TILE) Assessments~~ ].

The [ ~~Texas~~ ] Department of Aging and Disability [ ~~Human~~ ] Services [ ~~(DHS)~~ ] adopts by reference 1 TAC §371.212 (relating to Minimum Data Set (MDS) Assessments [ ~~Case Mix Classification System~~ ]), §371.213 (relating to Utilization Review and Control Activities Performed by Texas Health and Human Services Commission (Commission)), and §371.214 (relating to Resource Utilization Group Classification System [ ~~Texas Index for Level of Effort (TILE) Assessments~~ ]). Each hospice provider must comply with the Texas Health and Human Services Commission's utilization review requirements found at 1 TAC §§371.212 - 371.214.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 7, 2008.

TRD-200801800

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: May 18, 2008

For further information, please call: (512) 438-3734

Chapter 40. USE OF GENERAL REVENUE FOR SERVICES EXCEEDING THE INDIVIDUAL COST LIMIT OF A WAIVER PROGRAM

40 TAC §40.1

The Health and Human Services Commission (HHSC) proposes, on behalf of the Department of Aging and Disability Services (DADS), new §40.1, concerning the use of general revenue for services exceeding the individual cost limit of a waiver program, in new Chapter 40, Use of General Revenue for Services Exceeding the Individual Cost Limit of a Waiver Program.

BACKGROUND AND PURPOSE

The purpose of the new section is to implement provisions of the 2008-09 General Appropriations Act (Article II, Department of Aging and Disability Services, Rider 45, H.B. 1, 80th Legislature, Regular Session, 2007) concerning the use of general revenue for services exceeding an individual's cost limit in certain DADS programs operated in accordance with §1915(c) of the federal Social Security Act. Rider 45 authorizes DADS, under certain conditions, to use general revenue to pay for services that exceed the cost limit and requires DADS to use general revenue to continue to provide services to a person who was receiving waiver program services on September 1, 2005, at a cost that exceeded the waiver program's cost limit.

SECTION-BY-SECTION SUMMARY

Proposed new §40.1 provides definitions for the following words and terms used in the new section: waiver program, general revenue, and individual. It implements the provisions of Rider 45 concerning the use of general revenue for services that exceed an individual's waiver program cost limit by stating the conditions under which general revenue may be used and the requirements that services funded by general revenue under Rider 45 must meet. The proposed new section also states that DADS will use general revenue to continue to provide services to an individual who has been receiving waiver program services since September 1, 2005, at a cost that exceeded the individual cost limit of the waiver program, if the services above the individual cost limit are necessary for the individual to live in the most integrated setting appropriate to the individual's needs and federal financial participation is not available to pay for the services above the individual cost limit.

FISCAL NOTE

Gordon Taylor, DADS Chief Financial Officer, has determined that, for the first five years the proposed new section is in effect, enforcing or administering the new section does not have foreseeable implications relating to costs or revenues of state or local governments.

SMALL BUSINESS AND MICRO-BUSINESS IMPACT ANALYSIS

DADS has determined that the proposed new section will not have an adverse economic effect on small businesses or micro-businesses, because the proposal places no new requirements on small businesses or micro-businesses.

PUBLIC BENEFIT AND COSTS

Barry Waller, DADS Assistant Commissioner for Provider Services, has determined that, for each year of the first five years the new section is in effect, the public benefit expected as a result of enforcing the new section is that DADS procedures for addressing situations in which an individual cannot be served within the individual cost limit of a waiver program and whose health and safety cannot be ensured in another available living arrangement will be clarified.

Mr. Waller anticipates that there will not be an economic cost to persons who are required to comply with the new section. The new section will not affect a local economy.

TAKINGS IMPACT ASSESSMENT

PUBLIC COMMENT

Questions about the content of this proposal may be directed to Kristi Guilbeaux at (512) 438-2756 in DADS' Provider Services Division. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-010, Department of Aging and Disability Services W-615, P.O. Box 149030, Austin, Texas 78714-9030, or street address 701 West 51st St., Austin, TX 78751; faxed to (512) 438-5759; or e-mailed to rulescomments@dads.state.tx.us. To be considered, comments must be submitted no later than 30 days after the date of this issue of the Texas Register. The last day to submit comments falls on a Sunday; therefore, comments must be either (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered to DADS before 5:00 p.m. on DADS' last working day of the comment period; or (3) faxed or e-mailed by midnight on the last day of the comment period. When faxing or e-mailing comments, please indicate "Comments on Proposed Rule 010" in the subject line.

STATUTORY AUTHORITY

The new section is proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including DADS; Texas Human Resources Code, §161.021, which provides that the Aging and Disability Services Council shall study and make recommendations to the HHSC executive commissioner and the DADS commissioner regarding rules governing the delivery of services to persons who are served or regulated by DADS; Texas Government Code, §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program in each agency that operates a portion of the Medicaid program; and the 2008-09 General Appropriations Act (Article II, Department of Aging and Disability Services, Rider 45, H.B. 1, 80th Legislature, Regular Session, 2007), which authorizes the use of general revenue to pay for services that exceed the cost of certain waiver programs operated by DADS.

The new section affects Texas Government Code, §531.0055 and §531.021; Texas Human Resources Code, §161.021; and the 2008-09 General Appropriations Act (Article II, Department of Aging and Disability Services, Rider 45, H.B. 1, 80th Legislature, Regular Session, 2007).

§40.1.Use of General Revenue for Services Exceeding the Individual Cost Limit of a Waiver Program.

(a) The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:

(1) Waiver program--A program administered by the Department of Aging and Disability Services (DADS), other than the Texas Home Living Program, that provides services under a waiver granted by the Centers for Medicare and Medicaid Services in accordance with §1915(c) of the Social Security Act.

(2) General revenue--State funds appropriated by the Texas Legislature for use by DADS.

(3) Individual--A person applying for or enrolled in a waiver program.

(b) DADS may use general revenue to pay for services above the individual cost limit of a waiver program for an individual if DADS determines:

(1) the individual needs services that exceed the individual cost limit because the individual's health and safety cannot be protected by the services provided within the individual cost limit;

(2) the individual receives waiver services at the individual cost limit;

(3) federal financial participation is not available to pay for services above the individual cost limit; and

(4) there is no other available living arrangement in which the individual's health and safety can be protected, as evidenced by:

(A) an assessment conducted by DADS clinical staff; and

(B) supporting documentation, including the individual's medical and service records.

(1) the same service array offered by the waiver program in which the individual is enrolled;

(2) necessary to protect the individual's health and safety;

(3) authorized using the waiver program's criteria; and

(4) unavailable through other funding sources.

(d) For an individual who has been receiving waiver program services since September 1, 2005, at a cost that exceeded the individual cost limit of the waiver program, DADS uses general revenue to pay for services above the individual cost limit if:

(1) the services above the individual cost limit are necessary for the individual to live in the most integrated setting appropriate to the individual's needs; and

(2) federal financial participation is not available to pay for the services above the individual cost limit.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 7, 2008.

TRD-200801777

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: May 18, 2008

For further information, please call: (512) 438-3734

Chapter 42. MEDICAID WAIVER PROGRAM FOR PEOPLE WHO ARE DEAF BLIND WITH MULTIPLE DISABILITIES

The Health and Human Services Commission (HHSC) proposes, on behalf of the Department of Aging and Disability Services (DADS), amendments to §42.5, concerning eligibility criteria; and §42.6, concerning planning for and provision of services; and proposes the repeal of §42.12, concerning the provision of services when costs exceed the individual cost limit, in Chapter 42, Medicaid Waiver Program for People Who Are Deaf Blind with Multiple Disabilities.

BACKGROUND AND PURPOSE

The purpose of the amendments and repeal is to implement the 2008-09 General Appropriations Act (Article II, Department of Aging and Disability Services, Rider 45, H.B. 1, 80th Legislature, Regular Session, 2007), concerning waiver program cost limits. Rider 45 places an individual's annual cost limit for Deaf Blind with Multiple Disabilities (DBMD) Program services at 200 percent of the estimated annualized per capita cost of providing services in an intermediate care facility for persons with mental retardation (ICF/MR) to an individual qualifying for an ICF/MR Level of Care VIII; authorizes DADS, under certain conditions, to use general revenue to pay for services that exceed the cost limit; requires DADS to use general revenue to continue to provide services to a person who was receiving waiver program services, such as DBMD Program services, on September 1, 2005, at a cost that exceeded the waiver program's cost limit; and requires DADS to employ utilization management and utilization review practices as necessary to ensure that the appropriate scope and level of services are provided to an individual receiving services through a waiver program.

The amendments are also proposed to update agency names and terminology, to update the rules to reflect current procedures, and to reorganize the structure of the rule for clarity and consistency with other DADS programs operated in accordance with §1915(c) of the federal Social Security Act.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §42.5 provides a definition for "individual" and replaces the terms "applicant" and "participant" with "individual" to provide consistency throughout the rule. The amendment implements Rider 45 provisions by: (1) increasing the cost limit from 115 percent of the average cost of institutional care in an ICF/MR (currently in §42.6(c)) to 200 percent of the estimated annualized per capita cost of providing services in an ICF/MR; and (2) providing a cross-reference to 40 TAC §40.1 proposed as a new section elsewhere in this issue of the Texas Register, which governs the use of general revenue, under certain conditions, to pay for services that exceed the cost limit. The proposed amendment also replaces a provision governing financial eligibility for the DBMD Program with a provision that the individual be determined by HHSC to be financially eligible for Medicaid, and deletes a provision governing calculation of an individual's co-payment, because HHSC, rather than DADS, now determines financial eligibility and calculates the co-payment. The amendment to §42.5 also revises terminology and reorganizes the structure of the rule for clarity and consistency with other DADS waiver program rules.

The proposed amendment to §42.6, concerning the individual plan of care (IPC), expands the provisions of the current rule to address the utilization management and review provisions of Rider 45. Subsection (d) of the proposed amendment describes five requirements that DBMD Program services in the IPC must meet in order for DADS to approve the IPC. Subsection (e) of the proposed amendment requires the DBMD Program provider to submit documentation to DADS that demonstrates that the DBMD Program services in the IPC meet the five requirements described in subsection (d). Subsections (f) and (g) of the proposed amendment govern the procedures for utilization review and state that DADS may conduct utilization review at any time and may deny or reduce services if DADS determines that one or more of the DBMD Program services in the IPC do not meet the requirements of subsection (d).

The proposed repeal of §42.12 eliminates a rule governing exceptions to the DBMD Program cost limit. The Centers for Medicare and Medicaid Services has indicated that exceptions to the cost limit may not be granted and, therefore, this rule is no longer necessary. The provisions in §42.12 covering an individual who was receiving DBMD Program services on or before September 1, 2005, at a cost that exceeded the individual cost limit of the DBMD Program have been revised to comply with Rider 45 and are included in proposed new §40.1, published elsewhere in this issue of the Texas Register.

FISCAL NOTE

Gordon Taylor, DADS Chief Financial Officer, has determined that, for the first five years the proposed amendments and repeal are in effect, enforcing or administering the amendments and repeal does not have foreseeable implications relating to costs or revenues of state or local governments.

SMALL BUSINESS AND MICRO-BUSINESS IMPACT ANALYSIS

DADS has determined that the proposed amendments and repeal will not have an adverse economic effect on small businesses or micro-businesses, because the proposal places no new requirements on small businesses or micro-businesses.

PUBLIC BENEFIT AND COSTS

Barry Waller, DADS Assistant Commissioner for Provider Services, has determined that, for each year of the first five years the amendments and repeal are in effect, the public benefit expected as a result of enforcing the amendments and repeal is that DADS procedures for addressing situations in which an individual cannot be served within the individual cost limit of a waiver program and whose health and safety cannot be ensured in another available living arrangement will be clarified.

Mr. Waller anticipates that there will not be an economic cost to persons who are required to comply with the amendments and repeal. The amendments and repeal will not affect a local economy.

TAKINGS IMPACT ASSESSMENT

PUBLIC COMMENT

40 TAC §42.5, §42.6

STATUTORY AUTHORITY

The amendments are proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including DADS; Texas Human Resources Code, §161.021, which provides that the Aging and Disability Services Council shall study and make recommendations to the HHSC executive commissioner and the DADS commissioner regarding rules governing the delivery of services to persons who are served or regulated by DADS; and Texas Government Code, §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program in each agency that operates a portion of the Medicaid program.

The amendments affect Texas Government Code, §531.0055 and §531.021, and Texas Human Resources Code, §161.021.

§42.5.[ ~~Participant~~ ] Eligibility Criteria.

(a) In this section, the term "individual" means a person applying for or enrolled in the Deaf Blind with Multiple Disabilities (DBMD) Program, unless the context clearly indicates otherwise.

(b) [ ~~(a)~~ ] To be determined eligible by the Department of Aging and Disability Services (DADS) [ ~~Texas Rehabilitation Commission (TRC) {Texas Department of Human Services (DHS)}~~ ] for the DBMD Program [ ~~waiver program services~~ ], an individual [ ~~applicant~~ ] must:

(1) have been determined by the Texas Health and Human Services Commission (HHSC) to be financially eligible for Medicaid; [ ~~be eligible for Supplemental Security Income (SSI) benefits; or~~ ]

~~[ ~~(2)~~ have been eligible for and received SSI benefits and continue to be eligible for Medicaid as a result of protective coverage mandated by federal law; or]~~

[ ~~(3)~~ be an individual who would be financially eligible for Medicaid if residing in a Medicaid-certified institution. For these individuals, the policies specified in subparagraphs (A) and (B) of this paragraph apply.]

~~[ ~~(A)~~ Spousal impoverishment provisions.]~~

[ ~~(i)~~ For waiver participants with spouses who live in the community, the income and resource eligible requirements are determined according to the spousal impoverishment provisions in the Social Security Act, §1924, and as specified in the Medicaid State Plan and this subsection.]

~~[ ~~(ii)~~ After the participant is determined to be eligible for Medicaid, DHS determines the amount of the participant's income applicable to payment.]~~

[ ~~(iii)~~ To determine the amount of the participant's income applicable to payment, DHS uses the same methodology as if the participant were residing in an institution, except that the personal needs allowance is equal to the institutional cap.]

[ ~~(iv)~~ Texas Department of Human Services (DHS) applies post-eligibility treatment of income rules to individuals eligible under a special income level, as specified in 42 Code of Federal Regulations (CFR) 435.726, for use only by states that do not use the 209(b) option. For individuals receiving home and community-based services who are subject to the post-eligibility treatment of income rules, the Medicaid payment to the provider for home and community-based services will be reduced by the amount that remains after deducting the appropriate amounts from the individual's income. The DHS Copayment Worksheet form is used to calculate the client copayment amount.]

~~[ ~~(B)~~ Calculation of participant copayment.]~~

[ ~~(i)~~ A participant who is financially eligible based on the special institutional income limit must share in the cost of waiver services. The method for determining the participant copayment is specified in this subparagraph and is documented on DHS's Medical Assistance Only Worksheet form. When calculating the copayment amount for a participant with income that exceeds the SSI federal benefit rate, DHS deducts the following:]

~~[ ~~(I)~~ the cost of participant(s) maintenance needs, which must equal the special institutional income limit for eligibility under the Texas Medicaid program;]~~

[ ~~(II)~~ the cost of the maintenance needs of the participant's dependent children. This amount is equivalent to the Aid to Families with Dependent Children (AFDC) program basic monthly grant for children or for a spouse with children, using the recognizable needs amount in the AFDC Budgetary Allowance Chart;]

[ ~~(III)~~ the costs incurred for medical or remedial care that are necessary, but not covered by Medicare, Medicaid, or any other third party. This included the cost of health insurance premiums, deductibles, and coinsurance; and]

~~[ ~~(IV)~~ the cost of the maintenance needs of the participant's spouse. This amount is equivalent to the amount of the SSI federal benefit rate, less the spouse's own income.]~~

[ ~~(ii)~~ The copayment amount is the participant's remaining income after all allowable expenses have been deducted. The copayment amount is applied only to the cost of home and community-based services which are funded through the Medicaid Waiver for People with Deaf-Blindness and Multiple Disabilities (DB-MD waiver) program and specified on the participant's individual plan of care. The copayment amount must not exceed the cost of services actually delivered.]

~~[ ~~(iii)~~ Participants must pay the copayment amount to the provider contracted to deliver authorized waiver services.]~~

[ ~~(b)~~

~~To be determined eligible by TRC {DHS} for DB-MD waiver program services, participants must also meet the following requirements.]~~

[ ~~(1)~~ Have a completed "Project Link" Referral form on file with the Texas Rehabilitation Commission Program for People Who are Deaf-Blind with Multiple Disabilities. This form is forwarded by TRC {DHS} to providers in the region of the state of Texas designated as preferred by the participant. When placements are available, providers are to consider each participant in the order of received referral form.]

(2) have medical [ ~~Medical~~ ] documentation verifying a diagnosis of deaf blindness [ ~~must verify existence of deaf-blindness~~ ] with multiple disabilities ; [ . ]

(3) have been determined by DADS to qualify for the intermediate care facility for persons with mental retardation (ICF/MR) Level of Care VIII, as described in §9.239 of this title (relating to ICF/MR Level of Care VIII Criteria); [ Participants must meet the intermediate care facility for the mentally retarded with related conditions (ICF-MR/RC VIII) level-of-care criteria as determined by the Texas Department of Human Services (DHS) according to applicable state and federal regulations, and as verified by a current level of care assessment. ]

[ ~~(A)~~ A preadmission level of care assessment by DHS expires 90 calendar days from its issuance. For participants who are enrolled in the waiver program within 30 calendar days of discharge from an ICF-MR/RC VIII or another waiver program provider, the current level-of-care assessment may be used for enrollment and is valid until the expiration date on the level-of-care assessment.]

[ ~~(B)~~ Re-evaluation of ICF-MR/RC level-of-care criteria is performed annually by the Texas Department of Human Services using the same criteria as used initially. An initial re-evaluation of level of care must be performed no later than 364 calendar days from the date of enrollment. Subsequent level-of-care re-evaluations must be performed no later than 364 calendar days from the effective date of the prior level-of-care assignment.]

~~[ ~~(C)~~ Any gaps in the level-of-care coverage periods result in loss of payment to the provider.]~~

(4) have an individual plan of care (IPC) with a cost for DBMD Program services at or below 200 percent of the estimated annualized per capita cost of providing services in an ICF/MR to an individual qualifying for an ICF/MR Level of Care VIII considering all other resources, including resources described in §40.1 of this title (relating to Use of General Revenue for Services Exceeding the Individual Cost Limit of a Waiver Program);

(5) not reside in an institutional setting, including a hospital, a nursing facility, an ICF/MR, a licensed assisted living facility in which more than six persons reside, or a facility required to be licensed as an assisted living facility but is not licensed; and

(6) not be enrolled in another Medicaid waiver program approved by the Centers for Medicare and Medicaid Services (CMS) pursuant to §1915(c) of the Social Security Act and operated by DADS.

(c) Enrollment in the DBMD Program is limited to the number of individuals approved by CMS or the availability of state funding.

(d) DADS enrolls an eligible individual from the DBMD Program interest list on a "first-come, first-served" basis.

(e) An individual found by HHSC to be financially eligible for the DBMD Program based on the special institutional income limit must share in the cost of DBMD Program services.

(f) DADS does not pay a DBMD Program provider for any gaps in level-of-care coverage periods.

(g) An individual receiving services reimbursed through the Texas Medicaid Nursing Facility Program will be approved for the DBMD Program if the individual requests DBMD Program services while residing in the nursing facility and meets all eligibility criteria for the DBMD Program. If the individual is discharged from the nursing facility to a community setting before being determined eligible for the DBMD Program, the individual will be denied immediate enrollment in the DBMD Program.

§42.6.Planning for and Provision of Services.

(a) In this section, the term "individual" means a person applying for or enrolled in the Deaf Blind with Multiple Disabilities (DBMD) Program, unless the context clearly indicates otherwise.

(b) A DBMD Program provider must ensure that an interdisciplinary team:

(1) develops an enrollment individual plan of care (IPC) for an individual;

(2) reviews and updates the IPC at least annually and when the individual's needs for DBMD Program services change;

(3) specifies in the IPC the type of DBMD Program services required to support the individual in the community, the units of services, and their frequency; and

(4) signs and dates the IPC.

(c) Before providing DBMD Program services in accordance with the IPC, the DBMD Program provider must obtain approval from the Department of Aging and Disability Services (DADS).

(d) To be approved by DADS, DBMD Program services in the IPC must:

(1) be necessary to protect the individual's health and welfare in the community;

(2) supplement rather than replace the individual's natural supports and other non-DBMD Program services and supports for which the individual may be eligible;

(3) prevent the individual's admission to an institution;

(4) be the most appropriate type and amount of services to meet the individual's needs; and

(5) be cost effective.

(e) To demonstrate that the DBMD Program services in the IPC meet the requirements described in subsection (d) of this section, the DBMD Program provider must submit the following to DADS:

(1) documentation supporting the DBMD Program services recommended by the DBMD Program provider; and

(2) documentation that other sources for the DBMD Program services are unavailable.

(f) DADS conducts utilization review of an IPC and supporting documentation at any time to determine if the DBMD Program services specified in the IPC meet the requirements described in subsection (d) of this section.

(1) The DBMD Program provider must submit documentation supporting the IPC to DADS as requested by DADS.

(2) If DADS determines that one or more of the DBMD Program services specified in the IPC do not meet the requirements described in subsection (d) of this section, DADS denies or reduces the service, modifies the IPC, and sends written notification to the individual and DBMD Program provider.

(g) In addition to the utilization review conducted in accordance with subsection (f) of this section, DADS may conduct utilization reviews of DBMD Program providers and DBMD Program services based on utilization patterns and trends.

[ ~~(a)~~ Applicants must have an individual plan of care for home and community-based services, developed by the interdisciplinary team composed of a case manager and other appropriate professional staff who meet the qualifications specified in the waiver request. The individual plan of care for home and community-based services must specify the type of waiver services required to keep an individual in the community, the units of waiver services, and their frequency and duration. The individual plan of care for home and community-based services must be signed and dated by the interdisciplinary team prior to implementation. The interdisciplinary team must certify in writing that the waiver program services authorized on the individual plan of care are necessary to avoid ICF-MR/RC VIII institutional placement and are appropriate to meet the applicant's needs in the community.]

[ ~~(b)~~ The individual plan of care for home and community-based services must be approved by the Texas Department of Human Services (DHS) and updated by the provider at least annually. Any gaps in the coverage periods of the individual plan of care approved by DHS result in loss of payment to the provider.]

[ ~~(c)~~ The estimated annual cost of the applicant's individual plan of care for a period of 364 days from the initial enrollment for home and community-based services must not exceed 115% of the average cost of institutional care in an ICF-MR/RC VIII facility.]

[ ~~(d)~~ Enrollment into this waiver program is limited to the number of participants approved by the Centers for Medicare and Medicaid Services (CMS) or the availability of state funding. When the number of participants can be increased, DHS DB-MD waiver program will analyze need based on number of Project Link referral forms received. At that point, a Request for Proposals (RFP) will be issued statewide announcing the need for providers to serve particular counties or multiple counties where clients desire services. A team of experts will evaluate received proposals based on approved common standards. A contract will be signed by the approved providers and DHS, detailing standards to be followed in provision of home and community based services. Potential participants on the DHS centralized waiting list will be notified of qualified providers who can serve them in the location they desire. Notification of service availability to potential participants will be in order of the date DHS receives the Project Link Referral form. The providers will likewise be notified of those clients desiring services in their area. Once the providers and applicants decide to begin services, the case manager employed by the providers will establish eligibility of the clients and submit plan of care forms to DHS.]

~~[ ~~(e)~~ Participants may be enrolled in only one waiver program at a time. Participants may not receive both DB-MD waiver services and other Medicaid community care services at the same time.]~~

[ ~~(f)~~ Individuals residing in a Texas nursing facility who are enrolled in Medicaid will be approved for Community Care services if they request services while residing in a Texas nursing facility and meet all eligibility criteria for Community Care services. If an individual is discharged from the nursing facility for a community setting before being determined eligible for Medicaid nursing facility services and Community Care services, the individual will be denied Community Care services unless these services are part of an entitlement program. Upon admission to or discharge from the nursing facility, DHS must make information on Community Care services, including Medicaid waiver services, available to the nursing facility resident.]

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 7, 2008.

TRD-200801778

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: May 18, 2008

For further information, please call: (512) 438-3734

Chapter 42. MEDICAID WAIVER PROGRAM FOR PEOPLE WHO ARE DEAF-BLIND WITH MULTIPLE DISABILITIES

40 TAC §42.12

STATUTORY AUTHORITY

The repeal is proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including DADS; Texas Human Resources Code, §161.021, which provides that the Aging and Disability Services Council shall study and make recommendations to the HHSC executive commissioner and the DADS commissioner regarding rules governing the delivery of services to persons who are served or regulated by DADS; and Texas Government Code, §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program in each agency that operates a portion of the Medicaid program.

The repeal affects Texas Government Code, §531.0055 and §531.021, and Texas Human Resources Code, §161.021.

§42.12.Providing DBMD Services When Costs Exceed the Individual Cost Limit.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 7, 2008.

TRD-200801779

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: May 18, 2008

For further information, please call: (512) 438-3734

Chapter 46. CONTRACTING TO PROVIDE ASSISTED LIVING AND RESIDENTIAL CARE SERVICES

Subchapter B. PROVIDER CONTRACTS

40 TAC §46.13

The Health and Human Services Commission (HHSC) proposes, on behalf of the Department of Aging and Disability Services (DADS), an amendment to §46.13, concerning housing options, in Chapter 46, Contracting to Provide Assisted Living and Residential Care Services.

BACKGROUND AND PURPOSE

The purpose of the amendment is, in part, to implement Senate Bill 1318, 80th Legislature, Regular Session, 2007, which amended Texas Health and Safety Code, §247.069. Section 247.069 requires the Community Based Alternatives (CBA) Program to provide consumers with the opportunity to choose an assisted living facility that meets construction-related licensing standards without regard to the number of units in the facility, if the consumers are advised of all other community-based service options. Senate Bill 1318 removed the specific facility requirements from §247.069, and, therefore, the specific facility requirements need to be removed from the rule.

The purpose of the amendment is also to implement a rule change necessitated by a project under the direction of HHSC that will replace the state case-mix system for provider payments, which is based on the Texas Index for Level of Effort (TILE) model, with the federal case-mix system, which is based on the Resource Utilization Group (RUG) model. The transition to the RUG model affects the Texas Nursing Facility Program, as well as community-based waiver programs, including the CBA Program, which serve individuals who have a determination of medical necessity for nursing facility care. The project also requires that DADS replace its Client Assessment, Review and Evaluation (CARE) form (also known as Form 3652) with an assessment based on the federal Minimum Data Set (MDS) assessment for making medical necessity determinations and calculating the RUG. For the purpose of this rule, the community-based waiver assessment is termed the "medical necessity and level of care assessment."

SECTION-BY-SECTION SUMMARY

The proposed amendment to §46.13 removes the specific facility requirements listed in paragraph (3). The amendment also replaces references to the CARE form and to a specific score an individual must have on the CARE form with more generic terminology.

FISCAL NOTE

SMALL BUSINESS AND MICRO-BUSINESS IMPACT ANALYSIS

DADS has determined that the proposed amendment will have no adverse economic effect on small businesses or micro-businesses, because the amendment imposes no new requirements that would cause them to alter their business practices.

PUBLIC BENEFIT AND COSTS

Barry Waller, DADS Assistant Commissioner for Provider Services, has determined that, for each year of the first five years the amendment is in effect, the public benefit expected as a result of enforcing the amendment is that DADS rules will reflect current statutory requirements and that individuals receiving CBA services in non-apartment settings will be given a choice of living in a larger assisted living facility. Additionally, the amendment, which requires providers to conduct assessments of individuals served in the community on a form similar to the form on which nursing facility residents are assessed, will allow for better comparison of services in Texas to that of other states and provide for more streamlined and integrated business processes. These improvements will in turn lead to opportunities for improved services for DADS' consumers.

Mr. Waller anticipates that there will not be an economic cost to persons who are required to comply with the amendment. The amendment will not affect a local economy.

TAKINGS IMPACT ASSESSMENT

PUBLIC COMMENT

Questions about the content of this proposal may be directed to Gilbert Estrada at (512) 438-2578 in DADS' Provider Services Division. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-029, Department of Aging and Disability Services W-615, P.O. Box 149030, Austin, Texas 78714-9030, or street address 701 West 51st St., Austin, TX 78751; faxed to (512) 438-5759; or e-mailed to rulescomments@dads.state.tx.us. To be considered, comments must be submitted no later than 30 days after the date of this issue of the Texas Register. The last day to submit comments falls on a Sunday; therefore, comments must be either (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered to DADS before 5:00 p.m. on DADS' last working day of the comment period; or (3) faxed or e-mailed by midnight on the last day of the comment period. When faxing or e-mailing comments, please indicate "Comments on Proposed Rule 029" in the subject line.

STATUTORY AUTHORITY

The amendment is proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including DADS; Texas Human Resources Code, §161.021, which provides that the Aging and Disability Services Council shall study and make recommendations to the HHSC executive commissioner and the DADS commissioner regarding rules governing the delivery of services to persons who are served or regulated by DADS; Texas Government Code, §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program in each agency that operates a portion of the Medicaid program; and Texas Health and Safety Code, §247.069, which provides consumer choice for assisted living in community care programs.

The amendment affects Texas Government Code, §531.0055 and §531.021; Texas Human Resources Code, §161.021; and Texas Health and Safety Code, §247.069.

§46.13.Housing Options.

(a) Setting. A facility must specify in the contract the type(s) of setting(s) it uses to provide assisted living services according to the following guidelines:

(1) - (2) (No change.)

(3) Residential care non-apartment. A residential care non-apartment setting is a living unit that does not meet either the definition of an assisted living apartment or a residential care apartment. A living unit must not exceed double occupancy. [ ~~The facility must be:~~ ]

~~[ ~~(A)~~ a freestanding building not physically attached to another licensed facility and have a capacity of 16 or fewer beds; or]~~

~~[ ~~(B)~~ a building that:]~~

~~[ ~~(i)~~ has never been licensed by DADS as anything other than an assisted living facility;]~~

~~[ ~~(ii)~~ is not physically attached to a nursing facility licensed under Texas Health and Safety Code, Chapter 242;]~~

~~[ ~~(iii)~~ was constructed before September 1, 2005; and]~~

~~[ ~~(iv)~~ meets all other requirements of this chapter.]~~

(4) Personal Care 3. A Personal Care 3 setting is only available in the Community Based Alternatives (CBA) Assisted Living/Residential Care (AL/RC) Program, and must meet the following qualifications:

(A) - (C) (No change.)

(D) Sixty percent or more of the total clients served each month must require one-to-one staff assistance as documented [ ~~. One-to-one assistance is determined by a value of three or more~~ ] on the DADS medical necessity and level of care assessment [ ~~Client Assessment, Review, and Evaluation form~~ ] in one or more of the following activities of daily living:

(i) - (iii) (No change.)

(b) (No change.)

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 3, 2008.

TRD-200801748

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: May 18, 2008

For further information, please call: (512) 438-3734

Chapter 46. CONTRACTING TO PROVIDE ASSISTED LIVING AND RESIDENTIAL CARE SERVICES

The Health and Human Services Commission (HHSC) proposes, on behalf of the Department of Aging and Disability Services (DADS), amendments to §46.21, concerning reimbursement; §46.41, concerning required services; and §46.45, concerning required notifications, in Chapter 46, Contracting to Provide Assisted Living and Residential Care Services.

BACKGROUND AND PURPOSE

The purpose of the amendments is to implement rule changes necessitated by a project under the direction of HHSC that will replace the state case-mix system for provider payments, which is based on the Texas Index for Level of Effort (TILE) model, with the federal case-mix system, which is based on the Resource Utilization Group (RUG) model. The TILE-to-RUG project implements Texas Health and Safety Code, §§242.221 et seq, which requires DADS to use an automated system for nursing facility reimbursement and an assessment form designed by the United States Health Care Financing Administration (now the Centers for Medicare and Medicaid Services). As allowed by Texas Health and Safety Code, §242.221(b), DADS and HHSC have elected to add other components of the state Medicaid program, such as the Community Based Alternatives (CBA) Program, to the automated system of reimbursement and, therefore, to require use of an assessment form similar to the form on which nursing facility residents are assessed. The proposed amendments concern assisted living and residential care services offered under the CBA Program.

The purpose of the amendments is also to replace references to the Texas Department of Human Services and DHS with references to DADS.

SECTION-BY-SECTION SUMMARY

The proposed amendments to §46.21 and §46.45 replace references to procedures under the TILE model with more generic references, such as "level of care." The amendments also change DHS to DADS.

The proposed amendment to §46.41 deletes a sentence in subsection (b)(5) concerning the determination of a TILE score, because this reference will be obsolete with the implementation of the RUG model. The amendment also adjusts the grammatical structure of the rule to provide clarity.

FISCAL NOTE

SMALL BUSINESS AND MICRO-BUSINESS IMPACT ANALYSIS

DADS has determined that the proposed amendments will have no adverse economic effect on small businesses or micro-businesses, because the amendments impose no new requirements that would cause them to alter their business practices.

PUBLIC BENEFIT AND COSTS

Mr. Waller anticipates that there will not be an economic cost to persons who are required to comply with the amendments. The amendments will not affect a local economy.

TAKINGS IMPACT ASSESSMENT

PUBLIC COMMENT

Questions about the content of this proposal may be directed to Gilbert Estrada at (512) 438-2578 in DADS' Provider Services Division. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-014, Department of Aging and Disability Services W-615, P.O. Box 149030, Austin, Texas 78714-9030, or street address 701 West 51st St., Austin, TX 78751; faxed to (512) 438-5759; or e-mailed to rulescomments@dads.state.tx.us . To be considered, comments must be submitted no later than 30 days after the date of this issue of the Texas Register . The last day to submit comments falls on a Sunday; therefore, comments must be either (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered to DADS before 5:00 p.m. on DADS' last working day of the comment period; or (3) faxed or e-mailed by midnight on the last day of the comment period. When faxing or e-mailing comments, please indicate "Comments on Proposed Rule 014" in the subject line.

Subchapter B. PROVIDER CONTRACTS

40 TAC §46.21

STATUTORY AUTHORITY

The amendment affects Texas Government Code, §531.0055 and §531.021; Texas Human Resources Code, §161.021; and Texas Health and Safety Code, §242.226.

§46.21.Reimbursement.

(a) (No change.)

(b) The [ ~~Texas~~ ] Department of Aging and Disability [ ~~Human~~ ] Services (DADS) [ ~~(DHS)~~ ] will pay for eligible services provided and billed in compliance with this chapter.

(d) The facility must agree to accept the unit rate authorized by DADS [ ~~DHS~~ ], plus any applicable room and board payments, as payment in full for services required by DADS [ ~~DHS~~ ].

(e) The unit rate reimbursed by DADS [ ~~DHS~~ ] includes any copayment. The combined reimbursement from DADS [ ~~DHS~~ ] and the client or the client's representative for the required services described in §46.41 of this chapter (relating to Required Services) must not exceed the unit rate plus room and board specified for each type of setting. The unit rate does not include charges for services described in §46.15 of this chapter (relating to Additional Services and Fees).

(f) The facility must deduct the copayment amount from reimbursement claims submitted to DADS [ ~~DHS~~ ].

(g) The facility must not bill DADS [ ~~DHS~~ ] for the day of discharge, unless the discharge is due to the death of the client.

(h) (No change.)

(i) The facility must bill DADS [ ~~DHS~~ ] for the balance of the bedhold charge for any clients whose daily copayment is less than the maximum bedhold charge allowed by DADS [ ~~DHS~~ ].

(1) (No change.)

(2) The facility must deduct the client's daily copayment amount from the bedhold rate and submit the claim to DADS [ ~~DHS~~ ].

(3) (No change.)

(j) The facility may bill DADS [ ~~DHS~~ ] for emergency care provided to clients for:

(1) - (2) (No change.)

(k) The facility must not bill for services provided before or after the authorized effective dates for CBA AL/RC or Community Care for Aged and Disabled (CCAD) Residential Care (RC) services, as those dates are determined by DADS [ ~~DHS~~ ].

(l) When the facility requests a level of care [ ~~Texas Index of Level of Effort (TILE)~~ ] reset, the facility may bill DADS [ ~~DHS~~ ] at the new payment rate [ ~~TILE level~~ ] effective the date of the new [ ~~TILE~~ ] assessment. The facility may request only two level of care [ ~~TILE~~ ] resets during each calendar year for each CBA client for the following time periods:

(1) - (2) (No change.)

(m) (No change.)

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 7, 2008.

TRD-200801801

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: May 18, 2008

For further information, please call: (512) 438-3734

Subchapter C. PROVIDER REQUIREMENTS

40 TAC §46.41, §46.45

STATUTORY AUTHORITY

The amendments affect Texas Government Code, §531.0055 and §531.021; Texas Human Resources Code, §161.021; and Texas Health and Safety Code, §242.226.

§46.41.Required Services.

(a) (No change.)

(b) Required services. Services include:

(1) Personal care. The facility must provide or assist with personal care services identified on the service plan completed for the client. Personal care services are activities related to the care of the client's physical health that include at a minimum:

(A) - (F) (No change.)

(G) medication administration, including injections , except in [ ~~. This does not apply to~~ ] the Community Care for Aged and Disabled (CCAD) Residential Care (RC) Program;

(H) transferring/ambulating , except [ ~~. This does not apply to clients residing~~ ] in a Type A assisted living facility;

(I) twenty-four-hour supervision , which means the facility must: [ . The facility must conduct and document in the client file checks or visits to each client to ensure that each client is safe and well. The checks or visits must be made as identified on the service plan completed for the client; and ]

(i) conduct checks or visits to each client as identified in the client's service plan, to ensure that each client is safe and well; and

(ii) document the checks and visits in the client's file;

(J) meal services , which means the [ ~~. The~~ ] facility must:

(i) - (iv) (No change.)

(2) Home management. The facility must provide or assist with activities related to housekeeping that are essential to the client's health and comfort, including:

(A) - (D) (No change.)

(E) storing purchased items in the client's living unit , including [ ~~. This includes~~ ] medical supplies delivered to Community Based Alternatives (CBA) Assisted Living/Residential Care (AL/RC) clients; and

(F) (No change.)

(3) - (4) (No change.)

(5) Participation in the client assessment. The facility must designate someone who is familiar with the CBA AL/RC client's needs and service plan to participate in [ ~~with~~ ] the client's assessment by a home and community support services agency's licensed nurse . A facility is not required to designate someone to participate in a client's [ ~~The assessment will determine the Texas Index of Level of Effort (TILE) at both the annual assessment, and a requested re-TILE. Participation in the client~~ ] assessment in [ ~~does not apply to~~ ] the CCAD RC Program.

(6) (No change.)

§46.45.Required Notifications.

(a) The facility must notify the [ ~~Texas~~ ] Department of Aging and Disability [ ~~Human~~ ] Services (DADS) [ ~~(DHS)~~ ] when one of the following happens:

(1) - (9) (No change.)

(10) [ ~~when~~ ] the facility believes that a client's functional needs have changed such that it will impact the client's level of care, if the facility provides [ ~~Texas Index of Level of Effort (TILE). This only applies to facilities providing~~ ] assisted living services under the Community Based Alternatives (CBA) Assisted Living/Residential Care (AL/RC) Program and participates [ ~~that participate~~ ] in the attendant compensation rate option.

(b) The facility must notify the client's DADS [ ~~DHS~~ ] case manager orally or by facsimile about the change no later than one DADS working day [ ~~DHS workday~~ ] after the change happens. If the facility's first notification is oral, the facility must send written notification to the case manager within five working days of the initial notification.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 7, 2008.

TRD-200801802

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: May 18, 2008

For further information, please call: (512) 438-3734

Chapter 48. COMMUNITY CARE FOR AGED AND DISABLED

The Health and Human Services Commission (HHSC) proposes, on behalf of the Department of Aging and Disability Services (DADS), an amendment to §48.2103, concerning eligibility criteria; new §48.2106, concerning the individual service plan (ISP); and the repeal of §48.2123, concerning the provision of services when costs exceed the individual cost limit, in Chapter 48, Community Care for Aged and Disabled, Subchapter C, which is being renamed Community Living Assistance and Support Services (CLASS) Program.

BACKGROUND AND PURPOSE

The purpose of the amendment, new section, and repeal is to implement the 2008-09 General Appropriations Act (Article II, Department of Aging and Disability Services, Rider 45, H.B. 1, 80th Legislature, Regular Session, 2007), concerning waiver program cost limits. Rider 45 places an individual's annual cost limit for CLASS Program services at 200 percent of the estimated annualized per capita cost of providing services in an intermediate care facility for persons with mental retardation (ICF/MR); authorizes DADS, under certain conditions, to use general revenue to pay for services that exceed the cost limit; requires DADS to use general revenue to continue to provide services to a person who was receiving waiver program services, such as CLASS Program services, on September 1, 2005, at a cost that exceeded the waiver program's cost limit; and requires DADS to employ utilization management and utilization review practices as necessary to ensure that the appropriate scope and level of services are provided to an individual receiving services through a waiver program.

The amendment is also proposed to update agency names and terminology, to correct cross-references, and to reorganize the structure of the rule for clarity and consistency with other DADS programs operated in accordance with §1915(c) of the federal Social Security Act.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §48.2103 implements Rider 45 provisions by: (1) increasing the cost limit from 125 percent of the average cost of institutional care in an ICF/MR to 200 percent of the estimated annualized per capita cost of providing services in an ICF/MR; and (2) providing a cross-reference to 40 TAC §40.1 proposed as a new section elsewhere in this issue of the Texas Register, which governs the use of general revenue, under certain conditions, to pay for services that exceed the cost limit. The proposed amendment also replaces a provision governing financial eligibility for the CLASS Program with a provision that the applicant or participant be determined by HHSC to be financially eligible for Medicaid, and deletes a provision governing calculation of a participant's co-payment, because HHSC, rather than DADS, now determines financial eligibility and calculates the co-payment. The eligibility criteria in current §48.2103(b)(2), requiring an applicant or participant to live in a specific geographic catchment area, is being deleted because CLASS Program services are now available statewide. The provisions of current §48.2103(b)(3), concerning the development and content of an ISP, are deleted from §48.2103 so they can be moved to proposed new §48.2106 with other provisions concerning the ISP. The proposed amendment also updates agency names and reorganizes the structure of the rule for clarity and consistency with other DADS waiver program rules.

Proposed new §48.2106 governs the development and content of an ISP, including utilization management and review provisions required by Rider 45. Subsection (c) of the proposed new section describes five requirements that CLASS Program services in the ISP must meet in order for DADS to approve the ISP. Subsection (d) of the proposed amendment requires CLASS Program providers to have documentation that demonstrates that the CLASS Program services in the IPC meet the five requirements described in subsection (c). Subsections (e) and (f) of the proposed new section govern the procedures for utilization review and state that DADS may conduct utilization review at any time and may deny or reduce services if DADS determines that one or more of the CLASS Program services in the ISP do not meet the requirements of subsection (c).

The proposed repeal of §48.2123 eliminates a rule governing exceptions to the CLASS Program cost limit. The Centers for Medicare and Medicaid Services has indicated that exceptions to the cost limit may not be granted and, therefore, this rule is no longer necessary. The provisions in §48.6099 covering an individual who was receiving CLASS Program services on or before September 1, 2005, at a cost that exceeded the individual cost limit of the CLASS Program have been revised to comply with Rider 45 and are included in proposed new §40.1, published elsewhere in this issue of the Texas Register.

FISCAL NOTE

Gordon Taylor, DADS Chief Financial Officer, has determined that, for the first five years the proposed amendment, new section, and repeal are in effect, enforcing or administering the amendment, new section, and repeal does not have foreseeable implications relating to costs or revenues of state or local governments.

SMALL BUSINESS AND MICRO-BUSINESS IMPACT ANALYSIS

DADS has determined that the proposed amendment, new section, and repeal will not have an adverse economic effect on small businesses or micro-businesses, because the proposal places no new requirements on small businesses or micro-businesses.

PUBLIC BENEFIT AND COSTS

Barry Waller, DADS Assistant Commissioner for Provider Services, has determined that, for each year of the first five years the amendment, new section, and repeal are in effect, the public benefit expected as a result of enforcing the amendment, new section, and repeal is that DADS procedures for addressing situations in which an individual cannot be served within the individual cost limit of a waiver program and whose health and safety cannot be ensured in another available living arrangement will be clarified.

Mr. Waller anticipates that there will not be an economic cost to persons who are required to comply with the amendment, new section, and repeal. The amendment, new section, and repeal will not affect a local economy.

TAKINGS IMPACT ASSESSMENT

PUBLIC COMMENT

Subchapter C. COMMUNITY LIVING ASSISTANCE AND SUPPORT SERVICES (CLASS) PROGRAM

40 TAC §48.2103, §48.2106

STATUTORY AUTHORITY

The amendment and new section are proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including DADS; Texas Human Resources Code, §161.021, which provides that the Aging and Disability Services Council shall study and make recommendations to the HHSC executive commissioner and the DADS commissioner regarding rules governing the delivery of services to persons who are served or regulated by DADS; and Texas Government Code, §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program in each agency that operates a portion of the Medicaid program.

The amendment and new section affect Texas Government Code, §531.0055 and §531.021, and Texas Human Resources Code, §161.021.

§48.2103.[ ~~Participant~~ ] Eligibility Criteria.

(a) To be determined eligible by the [ ~~Texas~~ ] Department of Aging and Disability [ ~~Human~~ ] Services (DADS) [ ~~(DHS)~~ ] for the Community Living Assistance and Support Services (CLASS) Program [ ~~waiver program services~~ ], an applicant or participant must:

(1) have been determined by the Texas Health and Human Services Commission (HHSC) to be financially eligible for Medicaid; [ ~~be eligible for Supplemental Security Income (SSI) benefits; or~~ ]

(2) have been determined by DADS to qualify for the intermediate care facility for persons with mental retardation (ICF/MR) Level of Care VIII as described in §9.239 of this title (relating to ICF/MR Level of Care VIII Criteria); [ ~~eligible for and received SSI benefits and continue to be eligible for Medicaid as a result of protective coverage mandated by federal law; or~~ ]

(3) have been diagnosed with a related condition that manifested before the individual was 22 years of age; [ ~~be under age 18 and reside with parents or spouses, and~~ ]

~~[ ~~(A)~~ be eligible for Medicaid benefits only if institutionalized,]~~

~~[ ~~(B)~~ meet the SSI criteria for disability, as documented on the appropriate DHS forms,]~~

~~[ ~~(C)~~ meet the SSI criteria for institutional deeming,]~~

~~[ ~~(D)~~ have income and resources which meet the requirements of the SSI program, and]~~

~~[ ~~(E)~~ receive waiver program services for persons with related conditions; or]~~

(4) have been determined by a service planning team to need habilitation services; [ ~~be an individual who would be financially eligible for Medicaid if residing in a Medicaid-certified institution. For these individuals, the policies specified in subparagraphs (A) and (B) apply.~~ ]

~~[ ~~(A)~~ Spousal impoverishment provisions.]~~

[ ~~(i)~~ For waiver participants with spouses who live in the community, the income and resource eligibility requirements are determined according to the spousal impoverishment provisions in §1924 of the Social Security Act, and as specified in the Medicaid State Plan and subsection (a) of this section.]

~~[ ~~(ii)~~ After the participant is determined to be eligible for Medicaid, DHS determines the amount of the participant's income applicable to payment.]~~

[ ~~(iv)~~ DHS applies post-eligibility treatment of income rules to individuals eligible under a special income level, as specified in 42 Code of Federal Regulations 435.726, for use only by states that do not use the 209(b) option. For individuals receiving home and community-based services who are subject to the post-eligibility treatment of income rules, the Medicaid payment to the provider for home and community-based services will be reduced by the amount that remains after deducting the appropriate amounts from the individual's income. The DHS Copayment Worksheet form is used to calculate the client copayment amount.]

~~[ ~~(B)~~ Calculation of participant copayment.]~~

~~[ ~~(I)~~ the cost of the participant(s) maintenance needs, which must equal the special institutional income limit for eligibility under the Texas Medicaid program;]~~

[ ~~(III)~~ the costs incurred for medical or remedial care that are necessary, but not covered by Medicare, Medicaid, or any other third party. This includes the cost of health insurance premiums, deductibles, and coinsurance; and]

~~[ ~~(IV)~~ the cost of the maintenance needs of the participant's spouse. This amount is equivalent to the amount of the SSI federal benefit rate, less the spouse's own income.]~~

[ ~~(ii)~~ The copayment amount is the participant's remaining income after all allowable expenses have been deducted. The copayment amount is applied only to the cost of home and community-based services which are funded through the Community Living Assistance and Support Services (CLASS) waiver program and specified on the participant's individual plan of care. The copayment amount must not exceed the cost of services actually delivered.]

~~[ ~~(iii)~~ Participants must pay the copayment amount to the provider contracted to deliver authorized waiver services; or]~~

(5) have an individual service plan (ISP) with a cost for CLASS Program services at or below 200 percent of the estimated annualized per capita cost of providing services in an ICF/MR to an individual qualifying for an ICF/MR Level of Care VIII considering all other resources, including resources described in §40.1 of this title (relating to Use of General Revenue for Services Exceeding the Individual Cost Limit of a Waiver Program); [ ~~be an individual under age 19:~~ ]

~~[ ~~(A)~~ for whom the Texas Department of Protective and Regulatory Services (TDPRS) assumes financial responsibility for, in whole or in part (not to exceed level II foster care payment), and]~~

~~[ ~~(B)~~ who is being cared for in a foster care home licensed or certified and supervised by:]~~

~~[ ~~(i)~~ TDPRS, or]~~

~~[ ~~(ii)~~ a licensed public or private nonprofit child placing agency; or]~~

(6) not be enrolled in another Medicaid waiver program approved by the Centers for Medicare and Medicaid Services (CMS) pursuant to §1915(c) of the Social Security Act and operated by DADS; [ ~~be a member of a family that receives Medicaid as a result of qualifying for AFDC.~~ ]

(7) live in the applicant's or participant's own home or family home; and

(8) not reside in an institutional setting, including a hospital, a nursing facility, an ICF/MR, a licensed assisted living facility, or a facility required to be licensed as an assisted living facility but is not licensed.

~~[ ~~(b)~~ To be determined eligible by DHS for the waiver program services, participants must also meet the following requirements:]~~

[ ~~(1)~~ Participants must meet the intermediate care facility for the mentally retarded with related conditions (ICF-MR/RC VIII) level-of-care criteria as determined by the Texas Department of Health (TDH) according to applicable state and federal regulations, and as verified by a current level of care assessment.]

[ ~~(A)~~ A preadmission level of care assessment by TDH expires 90 calendar days from its issuance. For participants who are enrolled in the waiver program within 30 calendar days of discharge from an ICF-MR/RC VIII or another waiver program provider, the current level-of-care assessment may be used for enrollment and is valid until the expiration date on the level-of-care assessment.]

[ ~~(B)~~ Re-evaluation of ICF-MR level-of-care criteria is performed annually by the Texas Department of Health using the same criteria as used initially. An initial re-evaluation of level of care must be performed no later than 364 calendar days from the date of enrollment. Subsequent level-of-care re-evaluations must be performed no later than 364 calendar days from the effective date of the prior level-of-care assignment.]

~~[ ~~(C)~~ Any gaps in the level-of-care coverage periods result in loss of payment to the provider.]~~

[ ~~(2)~~ Applicants must live in the contracted provider's geographic catchment area or must move into the geographic catchment area within 120 days from the date the applicant's name is removed from the waiting list and the applicant begins the Community Living Assistance and Support Services (CLASS) enrollment process.]

[ ~~(3)~~ Applicants must have an individual plan of care for home and community-based services, developed by the interdisciplinary team composed of a case management service provider and other appropriate professional staff who meet the qualifications specified in the waiver request. The individual plan of care for home and community-based services must specify the type of waiver services required to keep an individual in the community, the units of waiver services, and their frequency and duration.]

[ ~~(A)~~ The individual plan of care for home and community-based services must be signed and dated by the interdisciplinary team prior to implementation. The interdisciplinary team must certify in writing that the waiver program services authorized on the individual plan of care are necessary to avoid ICF-MR/RC VIII institutional placement and are appropriate to meet the applicant's needs in the community.]

[ ~~(B)~~ The individual plan of care for home and community-based services must be approved by DHS and updated by the provider at least annually. Any gaps in the coverage periods of the individual plan of care approved by DHS result in loss of payment to the provider.]

[ ~~(c)~~ The estimated annual cost of the applicant's individual plan of care for a period of 364 days from the initial enrollment for home and community-base services must not exceed 125% of the average cost of institutional care in an ICF-MR/RC VIII facility.]

(b) [ ~~(d)~~ ] Enrollment in the CLASS Program [ ~~into this waiver program~~ ] is limited to the number of individuals [ ~~participants~~ ] approved by CMS [ ~~Centers for Medicare and Medicaid Services (CMS)~~ ] or the availability of state funding.

(c) An individual found by HHSC to be financially eligible for the CLASS Program based on the special institutional income limit must share in the cost of CLASS Program services.

(d) DADS does not pay a CLASS Program provider for any gaps in the level-of-care coverage periods.

~~[ ~~(e)~~ Participants may be enrolled in only one waiver program at a time. Participants may not receive both CLASS waiver services and other DHS community care services at the same time.]~~

(e) [ ~~(f)~~ ] An individual receiving services reimbursed through the Texas Medicaid Nursing Facility Program [ ~~Individuals residing in a Texas nursing facility who are enrolled in Medicaid~~ ] will be approved for the CLASS Program [ ~~Community Care services~~ ] if the individual requests CLASS Program [ ~~they request~~ ] services while residing in the nursing facility and meets [ ~~meet~~ ] all eligibility criteria for the CLASS Program [ ~~Community Care services~~ ]. If the [ an ] individual is discharged from the nursing facility to a community setting before being determined eligible for the CLASS Program [ ~~Medicaid nursing facility services and Community Care services~~ ], the individual will be denied immediate enrollment in the CLASS Program [ Community Care services unless these services are part of an entitlement program. Upon admission to or discharge from the nursing facility, DHS must make information on Community Care services, including Medicaid waiver services, available to the nursing facility resident ].

§48.2106.Individual Service Plan.

(a) A Community Living Assistance and Support Services (CLASS) Program case management agency must ensure that an applicant's or participant's case manager convenes a service planning team that:

(1) develops an enrollment individual service plan (ISP) for the applicant;

(2) reviews and updates the ISP at least annually and when the participant's needs for CLASS Program services change;

(3) specifies in the ISP the type of CLASS Program services required to support the applicant or participant in the community, the units of waiver services, and their frequency; and

(4) signs and dates the ISP.

(b) Before providing CLASS Program services in accordance with the ISP, a CLASS Program provider must obtain approval from the Department of Aging and Disability Services (DADS).

(1) be necessary to protect the applicant's or participant's health and welfare in the community;

(2) supplement rather than replace the applicant's or participant's natural supports and other non-CLASS Program services and supports for which the applicant or participant may be eligible;

(3) prevent the applicant's or participant's admission to an institution;

(4) be the most appropriate type and amount of services to meet the applicant's or participant's needs; and

(5) be cost effective.

(d) To demonstrate that the CLASS Program services in the ISP meet the requirements described in subsection (c) of this section, the CLASS Program providers must have the following:

(1) documentation, which may include assessments of the participant, supporting the CLASS Program services recommended by the CLASS Program providers; and

(2) documentation that other sources for the CLASS Program services are unavailable.

(e) DADS conducts utilization review of an ISP and supporting documentation at any time to determine if the CLASS Program services specified in the ISP meet the requirements described in subsection (c) of this section.

(1) The CLASS Program providers must submit documentation supporting the ISP to DADS as requested by DADS.

(2) If DADS determines that one or more of the CLASS Program services specified in the ISP do not meet the requirements described in subsection (c) of this section, DADS denies or reduces the service, modifies the ISP, and sends written notification to the applicant or participant and the CLASS Program providers.

(f) In addition to the utilization review conducted in accordance with subsection (e) of this section, DADS may conduct utilization reviews of CLASS Program providers and CLASS Program services based on utilization patterns and trends.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 7, 2008.

TRD-200801780

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: May 18, 2008

For further information, please call: (512) 438-3734

Subchapter C. MEDICAID WAIVER PROGRAM FOR PERSONS WITH RELATED CONDITIONS

40 TAC §48.2123

STATUTORY AUTHORITY

The repeal is proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including DADS; Texas Human Resources Code, §161.021, which provides that the Aging and Disability Services Council shall study and make recommendations to the HHSC executive commissioner and the DADS commissioner regarding rules governing the delivery of services to persons who are served or regulated by DADS; and Texas Government Code, §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program in each agency that operates a portion of the Medicaid program.

The repeal affects Texas Government Code, §531.0055 and §531.021, and Texas Human Resources Code, §161.021.

§48.2123.Providing CLASS Program Services When Costs Exceed the Individual Cost Limit.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 7, 2008.

TRD-200801781

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: May 18, 2008

For further information, please call: (512) 438-3734

Chapter 48. COMMUNITY CARE FOR AGED AND DISABLED

The Health and Human Services Commission (HHSC) proposes, on behalf of the Department of Aging and Disability Services (DADS), amendments to §48.6003, concerning eligibility criteria, and §48.6006, concerning the individual plan of care (IPC); and proposes the repeal of §48.6099, concerning the provision of services when costs exceed the individual cost limit, in Chapter 48, Community Care for Aged and Disabled, Subchapter J, which is being renamed Community Based Alternatives (CBA) Program.

BACKGROUND AND PURPOSE

The purpose of the amendments and repeal is to implement the 2008-09 General Appropriations Act (Article II, Department of Aging and Disability Services, Rider 45, H.B. 1, 80th Legislature, Regular Session, 2007), concerning waiver program cost limits. Rider 45 places an individual's annual cost limit for CBA Program services at 200 percent of the reimbursement rate that would have been paid for that same individual to receive services in a nursing facility; authorizes DADS, under certain conditions, to use general revenue to pay for services that exceed the cost limit; requires DADS to use general revenue to continue to provide services to a person who was receiving waiver program services, such as CBA Program services, on September 1, 2005, at a cost that exceeded the waiver program's cost limit; and requires DADS to employ utilization management and utilization review practices as necessary to ensure that the appropriate scope and level of services are provided to an individual receiving services through a waiver program.

The amendments are also proposed to update agency names and terminology, to correct cross-references, and to reorganize the structure of the rule for clarity and consistency with other DADS programs operated in accordance with §1915(c) of the federal Social Security Act.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §48.6003 provides a definition for "individual" and replaces the terms "applicant" and "participant" with "individual" to provide consistency throughout the rule. The amendment also replaces two cross-references to nursing facility rules, concerning qualifications for medical necessity determinations, with one cross-reference to a proposed new nursing facility rule (40 TAC §19.2401), concerning qualifications for medical necessity determinations. The proposed new §19.2401 is published elsewhere in this issue of the Texas Register. The amendment to §48.6003 implements Rider 45 provisions by: (1) increasing the cost limit from 100 percent of the individual's actual nursing facility payment rate to 200 percent of the reimbursement rate that would have been paid for that same individual to receive services in a nursing facility; and (2) providing a cross-reference to 40 TAC §40.1 proposed as a new section elsewhere in this issue of the Texas Register, which governs the use of general revenue, under certain conditions, to pay for services that exceed the cost limit. The amendment to §48.6003 also revises terminology, updates rule cross-references, and reorganizes the structure of the rule for clarity and consistency with other DADS waiver program rules.

The proposed amendment to §48.6006, concerning the IPC, expands the provisions of the current rule to address the utilization management and review provisions of Rider 45. Subsection (d) of the proposed amendment describes five requirements that CBA Program services in the IPC must meet in order for DADS to approve the IPC. Subsection (e) of the proposed amendment requires the CBA Program provider to submit certain information to DADS that demonstrates that the CBA Program services in the IPC meet the five requirements described in subsection (d). Subsections (f) and (g) of the proposed amendment govern the procedures for utilization review and state that DADS may conduct utilization review at any time and may deny or reduce services if DADS determines that one or more of the CBA Program services in the IPC do not meet the requirements of subsection (d).

The proposed repeal of §48.6099 eliminates a rule governing exceptions to the CBA Program cost limit. The Centers for Medicare and Medicaid Services has indicated that exceptions to the cost limit may not be granted and, therefore, this rule is no longer necessary. The provisions in §48.6099 covering an individual who was receiving CBA Program services on or before September 1, 2005, at a cost that exceeded the individual cost limit of the CBA Program have been revised to comply with Rider 45 and are included in proposed new §40.1, published elsewhere in this issue of the Texas Register.

FISCAL NOTE

SMALL BUSINESS AND MICRO-BUSINESS IMPACT ANALYSIS

PUBLIC BENEFIT AND COSTS

Mr. Waller anticipates that there will not be an economic cost to persons who are required to comply with the amendments and repeal. The amendments and repeal will not affect a local economy.

TAKINGS IMPACT ASSESSMENT

PUBLIC COMMENT

Subchapter J. COMMUNITY BASED ALTERNATIVES (CBA) PROGRAM

40 TAC §48.6003, §48.6006

STATUTORY AUTHORITY

The amendments are proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including DADS; Texas Human Resources Code, §161.021, which provides that the Aging and Disability Services Council shall study and make recommendations to the HHSC executive commissioner and the DADS commissioner regarding rules governing the delivery of services to persons who are served or regulated by DADS; and Texas Government Code, §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program in each agency that operates a portion of the Medicaid program.

The amendments affect Texas Government Code, §531.0055 and §531.021, and Texas Human Resources Code, §161.021.

§48.6003.[ ~~Client~~ ] Eligibility Criteria.

(a) In this section, the term "individual" means a person applying for or enrolled in the Community Based Alternatives (CBA) Program, unless the context clearly indicates otherwise.

(b) [ ~~(a)~~ ] To be determined eligible by the Department of Aging and Disability Services (DADS) for the CBA Program [ ~~1915(c) Medicaid waiver program provided as an alternative to care in a nursing facility~~ ], an individual [ ~~applicant~~ ] must:

(1) be [ ~~age~~ ] 21 years of age or older [ ~~above~~ ];

(2) meet the level-of-care criteria for medical necessity for nursing facility care in accordance with §19.2401 [ ~~§19.2409 and §19.2410~~ ] of this title (relating to General Qualifications for Medical Necessity Determinations [ ~~and Criteria Specific to a Medical Necessity Determination~~ ]);

(3) choose the CBA Program as an alternative to nursing facility services, as described in the Code of Federal Regulations, Title 42, §441.302(d) [ ~~meet the requirements for Preadmission Screening and Annual Resident Review (PASARR) and be determined appropriate for nursing facility care~~ ];

(4) not be enrolled in another Medicaid waiver program approved by the Centers for Medicare and Medicaid Services (CMS) pursuant to §1915(c) of the Social Security Act and operated by DADS [ choose home and community-based waiver services as an alternative to nursing facility placement based on an informed choice with approval conditional on feasible alternatives available under the waiver in accordance with 42 Code of Federal Regulations §441.302(d)(1) ];

(5) live in a county not included in a Medicaid managed care area;

(6) [ ~~(5)~~ ] have an individual plan of care (IPC) with a cost for CBA Program services at or below 200 percent of the reimbursement rate that would have been paid for that same individual to receive nursing facility services considering all other resources, including resources described in §40.1 of this title (relating to Use of General Revenue for Services Exceeding the Individual Cost Limit of a Waiver Program) [ for waiver services as specified in §48.6006 of this title (relating to Individual Plan of Care for Waiver Services) whose cost does not exceed 100% of the individual's actual nursing facility payment rate ];

(7) have been determined by the Texas Health and Human Services Commission to be financially eligible for Medicaid;

~~[ ~~(6)~~ meet the financial eligibility criteria for waiver services as specified in §48.6007 of this title (relating to Financial Eligibility Criteria);]~~

(8) [ ~~(7)~~ ] have ongoing needs for CBA Program [ ~~waiver~~ ] services with [ ~~whose~~ ] projected costs, as indicated on the IPC [ ~~Individual Plan of Care~~ ], that do not exceed the following maximum service ceilings [ ~~set for those services as listed below~~ ]:

(A) adaptive aids [ ~~Adaptive Aids~~ ] and medical supplies [ ~~Medical Supplies~~ ] service category must not [ ~~cannot~~ ] exceed $10,000 per individual per IPC [ ~~Individual Plan of Care~~ ] year without approval by DADS [ ~~the waiver manager~~ ];

(B) minor home modifications service category must not [ ~~cannot~~ ] exceed a lifetime maximum of $7,500 [ ~~$7500~~ ] per individual without approval by DADS, after which minor home modifications must not exceed $300 per IPC year for maintenance or additional modifications [ ~~the waiver manager~~ ]; and

(C) respite care must not [ ~~cannot~~ ] exceed 30 days per individual per IPC [ ~~Individual Plan of Care~~ ] year without approval by DADS [ ~~the waiver manager~~ ];

(9) [ ~~(8)~~ ] receive CBA Program [ ~~waiver~~ ] services within 30 days after [ ~~waiver~~ ] eligibility is established;

(10) [ ~~(9)~~ ] reside [ ~~either~~ ] in :

(A) the individual's [ ~~his~~ ] own home ;

(B) [ ~~or in~~ ] a licensed assisted living facility contracted with DADS to provide CBA Program services; or

(C) an adult foster care home contracted with DADS to provide CBA Program [ ~~Community Based Alternatives (CBA)~~ ] services ; [ . ]

(11) not reside in an institutional setting, including a hospital, a nursing facility, an intermediate care facility for persons with mental retardation, or a facility required to be licensed as an assisted living facility but is not licensed [ ~~CBA services will not be delivered to residents of hospitals, nursing facilities, ICF-MR facilities, or unlicensed assisted living facilities~~ ]; and

(12) [ ~~(10)~~ ] meet two or more of the criteria [ ~~for nursing home risk, as~~ ] specified in the Resident Assessment Instrument-Home Care Assessment for Nursing Home Risk [ ~~as revised in April 1996~~ ] and summarized as follows:

(A) needs assistance with one or more of the activities of dressing, personal hygiene, eating, toilet use, or bathing;

(B) has a functional decline in the past 90 days;

(D) has a neurological diagnosis of Alzheimer's disease, head trauma, multiple sclerosis, parkinsonism, or dementia [ ~~Head Trauma, Multiple Sclerosis, Parkinsonism, or Dementia~~ ];

(E) has a history of nursing facility placement within the last five years;

(F) has multiple episodes of urine incontinence daily; or [ ~~and~~ ]

(G) goes out of one's residence one or fewer days a week.

(c) [ ~~(b)~~ ] Enrollment in the CBA Program [ ~~Community Based Alternatives (CBA) program~~ ] is limited to the number of individuals [ ~~participants~~ ] approved by CMS [ ~~the Centers for Medicare and Medicaid Services (CMS)~~ ] or the availability of state funding.

(1) An individual is [ ~~Eligible individuals are to be~~ ] enrolled from the CBA Program interest list on a "first-come, first-served" basis, except for [ ~~individuals who meet~~ ] the following [ ~~criteria~~ ]:

(A) an individual who is 21 years of age and:

(i) has been receiving [ ~~children age 21 who are no longer eligible for the~~ ] Medically Dependent Children Program (MDCP) services and is no longer eligible for MDCP ; or

(ii) has been receiving nursing services through the Texas Health Steps Program and is no longer eligible for Texas Health Steps Program services; or

(B) an individual described in paragraph (3) of this subsection [ ~~children age 21 who have been receiving nursing services through the Texas Health Steps Program and are no longer eligible~~ ].

(2) Except for an individual described in paragraph (1)(A) and (B) of this subsection, DADS suspends enrollment of individuals whose names are on the CBA Program interest list into the CBA Program while [ ~~program as long as~~ ] the census of enrolled individuals [ ~~program participants~~ ] exceeds funded limits. [ For purposes of this section, the census is considered to have exceeded funded limits when DADS determines that the combination of existing caseloads and individuals described in paragraph (1)(A) and (1)(B) of this subsection exceed funded limits within the current budget period. ]

(3) An individual receiving services reimbursed through the Texas Medicaid Nursing Facility Program [ ~~Individuals residing in a Texas nursing facility who are enrolled in Medicaid~~ ] will be approved for the CBA Program if the individual requests [ ~~Community Care services if they request~~ ] services while residing in the [ ~~a Texas~~ ] nursing facility and meets [ ~~meet~~ ] all eligibility criteria for the CBA Program [ ~~Community Care services~~ ]. If the individual is discharged from the nursing facility for a community setting before being determined eligible for Medicaid nursing facility services and the CBA Program [ ~~Community Care services~~ ], the individual will be denied immediate enrollment in the CBA Program [ Community Care services unless these services are part of an entitlement program. Upon inquiry to DADS regarding the possibility of nursing facility placement and upon admission to a nursing facility, DADS must make information on Community Care services, including Medicaid waiver services, available to the individual making the inquiry or being admitted to a nursing facility. Upon inquiry of discharge from a nursing facility, DADS must also make information on Community Care services, including Medicaid waiver services, available to the nursing facility resident ].

~~[ ~~(c)~~ Participants may be enrolled in only one waiver program at a time.]~~

[ ~~(d)~~ The nursing facility risk criteria will be applied at the time of the first annual re-assessment for current Community Based Alternatives Program participants and at the time of initial enrollment for all new applicants.]

(d) [ ~~(e)~~ ] An individual [ ~~Individuals~~ ] transferring from a nursing facility or from MDCP is [ ~~the Medically Dependent Children Program are~~ ] exempt from subsection (b)(12) [ ~~(a)(10)~~ ] of this section.

~~[ ~~(f)~~ A participant must live in a county not included in a managed care service area and meet all other eligibility requirements to be enrolled in CBA.]~~

§48.6006.Individual Plan of Care [ ~~for Waiver Services~~ ].

(a) In this section, the term "individual" means a person applying for or enrolled in the Community Based Alternatives (CBA) Program, unless the context clearly indicates otherwise.

(b) A CBA Program provider must coordinate with an interdisciplinary team to develop an individual plan of care (IPC) that is based on assessments conducted in accordance with §48.6020 and §48.6022 of this subchapter (relating to Pre-Enrollment Health Assessment; and Community Based Alternatives Annual Reassessment) and that meets the criteria in subsection (d) of this section.

(c) Before providing CBA Program services in accordance with the IPC, the CBA Program provider must obtain approval from the Department of Aging and Disability Services (DADS).

(d) To be approved by DADS, CBA Program services in the IPC must:

(1) be necessary to protect the individual's health and welfare in the community;

(2) supplement rather than replace the individual's natural supports and other non-CBA Program services and supports for which the individual may be eligible;

(3) prevent the individual's admission to an institution;

(4) be the most appropriate type and amount of services to meet the individual's needs; and

(5) be cost effective.

(e) To demonstrate that the CBA Program services in the IPC meet the requirements described in subsection (d) of this section, the CBA Program provider must submit to DADS the following:

(1) an assessment of the individual supporting the CBA Program services recommended by the CBA Program provider; and

(2) documentation that other sources for adaptive aids and medical supplies are unavailable.

(f) DADS conducts utilization review of an IPC and supporting documentation at any time to determine if the CBA Program services specified in the IPC meet the requirements described in subsection (d) of this section.

(1) The CBA Program provider must submit documentation supporting the IPC to DADS as requested by DADS.

(2) If DADS determines that one or more of the CBA Program services specified in the IPC do not meet the requirements described in subsection (d) of this section, DADS denies or reduces the service, modifies the IPC, and sends written notification to the individual and CBA Program provider.

(g) In addition to the utilization review conducted in accordance with subsection (f) of this section, DADS may conduct utilization reviews of CBA Program providers and CBA Program services based on utilization patterns and trends.

[ ~~(a)~~ Waiver clients must have an individual plan of care for waiver services developed by the interdisciplinary team as described in the waiver request. The individual plan of care must specify the type of waiver services required to support the individual in the community, the units of waiver services, and their frequency.]

[ ~~(b)~~ The individual plan of care must be signed and dated by the interdisciplinary team prior to implementation. The interdisciplinary team must certify in writing that the waiver services are necessary as an alternative to institutionalization and appropriate to meet the needs of the individual in the community.]

~~[ ~~(c)~~ The individual plan of care must be approved by the Texas Department of Human Services (DHS) and updated by the interdisciplinary team at least annually.]~~

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 7, 2008.

TRD-200801782

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: May 18, 2008

For further information, please call: (512) 438-3734

Subchapter J. 1915(c) MEDICAID HOME AND COMMUNITY-BASED WAIVER SERVICES FOR AGED AND DISABLED ADULTS WHO MEET CRITERIA FOR ALTERNATIVES TO NURSING FACILITY CARE

40 TAC §48.6099

STATUTORY AUTHORITY

The repeal is proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including DADS; Texas Human Resources Code, §161.021, which provides that the Aging and Disability Services Council shall study and make recommendations to the HHSC executive commissioner and the DADS commissioner regarding rules governing the delivery of services to persons who are served or regulated by DADS; and Texas Government Code, §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program in each agency that operates a portion of the Medicaid program.

The repeal affects Texas Government Code, §531.0055 and §531.021, and Texas Human Resources Code, §161.021.

§48.6099.Providing CBA Services When Costs Exceed the Individual Cost Limit.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 7, 2008.

TRD-200801783

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: May 18, 2008

For further information, please call: (512) 438-3734

Subchapter J. COMMUNITY BASED ALTERNATIVES (CBA) PROGRAM

40 TAC §§48.6021, 48.6022, 48.6078

The Health and Human Services Commission (HHSC) proposes, on behalf of the Department of Aging and Disability Services (DADS), amendments to §48.6021, concerning delay of pre-enrollment home health assessment; §48.6022, concerning Community Based Alternatives (CBA) annual reassessment; and §48.6078, concerning billable units, in Chapter 48, Community Care for Aged and Disabled, Subchapter J, which is being renamed Community Based Alternatives (CBA) Program.

BACKGROUND AND PURPOSE

The purpose of the amendments is, in part, to implement rule changes necessitated by a project under the direction of HHSC that will replace the state case-mix system for provider payments, which is based on the Texas Index for Level of Effort (TILE) model, with the federal case-mix system, which is based on the Resource Utilization Group (RUG) model. The TILE-to-RUG project implements Texas Health and Safety Code, §§242.221 et seq, which requires DADS to use an automated system for nursing facility reimbursement and an assessment form designed by the United States Health Care Financing Administration (now the Centers for Medicare and Medicaid Services). As allowed by Texas Health and Safety Code, §242.221(b), DADS and HHSC have elected to add other components of the state Medicaid program, such as the CBA Program, to the automated system of reimbursement and, therefore, to require use of an assessment form similar to the form on which nursing facility residents are assessed. As a result, DADS will replace its Client Assessment, Review and Evaluation (CARE) form (also known as Form 3652) with an assessment based on the federal Minimum Data Set (MDS) assessment for making medical necessity determinations and calculating the RUG. For the purpose of this rule, the community-based assessment is termed the "medical necessity and level of care assessment."

SECTION-BY-SECTION SUMMARY

The proposed amendment to §48.6021 replaces a reference to the CARE form with a more generic term. The amendment also adjusts the grammatical structure of the rule to provide clarity.

The proposed amendment to §48.6022 replaces a reference to the CARE form with a more generic term. It also updates the time frame for submitting the form and an individual's service plan to reflect current practice.

The proposed amendment to §48.6078 replaces a reference to a procedure under the TILE model with a more generic reference to "level of care."

FISCAL NOTE

SMALL BUSINESS AND MICRO-BUSINESS IMPACT ANALYSIS

PUBLIC BENEFIT AND COSTS

Barry Waller, DADS Assistant Commissioner for Provider Services, has determined that, for each year of the first five years the amendments are in effect, the public benefit expected as a result of enforcing the amendments is that DADS rules will provide accurate requirements for CBA providers. The amendment, which requires providers to conduct assessments of individuals served in the community on a form similar to the form on which nursing facility residents are assessed, will allow for better comparison of services in Texas to services in other states and provide for more streamlined and integrated business processes. These improvements will in turn lead to opportunities for improved services for DADS' consumers.

Mr. Waller anticipates that there will not be an economic cost to persons who are required to comply with the amendments. The amendments will not affect a local economy.

TAKINGS IMPACT ASSESSMENT

PUBLIC COMMENT

Questions about the content of this proposal may be directed to Gilbert Estrada at (512) 438-2578 in DADS' Provider Services Division. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-014, Department of Aging and Disability Services W-615, P.O. Box 149030, Austin, Texas 78714-9030, or street address 701 West 51st St., Austin, TX 78751; faxed to (512) 438-5759; or e-mailed to rulescomments@dads.state.tx.us . To be considered, comments must be submitted no later than 30 days after the date of this issue of the Texas Register . The last day to submit comments falls on a Sunday; therefore, comments must be either (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered to DADS before 5:00 p.m. on DADS' last working day of the comment period; or (3) faxed or e-mailed by midnight on the last day of the comment period. When faxing or e-mailing comments, please indicate "Comments on Proposed Rule 014" in the subject line.

STATUTORY AUTHORITY

The amendments affect Texas Government Code, §531.0055 and §531.021; Texas Human Resources Code, §161.021; and Texas Health and Safety Code, §242.226.

§48.6021.Delay of Pre-Enrollment Home Health Assessment.

(a) A home and community support services agency (HCSSA) must [ ~~The only valid reasons for the Home and Community Support Services (HCSS) agency to not~~ ] complete the pre-enrollment home health assessment within the time period described in §48.6020 of this chapter (relating to Pre-Enrollment Home Health Assessment), unless [ ~~14 days for routine applicants or by the negotiated date for priority applicants are that~~ ]:

(1) (No change.)

(2) there is a delay in getting the medical necessity and level of care assessment [ ~~Client Assessment, Review, and Evaluation form~~ ] signed by the physician.

(b) The HCSSA [ ~~HCSS agency~~ ] must notify the case manager of a delay in obtaining the physician's signature which would prevent the HCSSA [ ~~HCSS agency~~ ] from meeting the time frame for completion of the pre-enrollment home health assessment as follows [ by ]:

(1) For priority referrals, the HCSSA must orally notify [ ~~verbally notifying~~ ] the case manager no later than 24 hours before the negotiated assessment completion date[ ~~, if it is a priority referral,~~ ] of the delay in obtaining the physician's signature and submit a [ ~~. The agency must submit written documentation on the~~ ] Case Information form to the case manager within two working days after [ ~~Texas Department of Human Services (DHS) workdays of~~ ] the oral [ ~~verbal~~ ] notification, documenting the reason for the delay . [ ~~; and~~ ]

(2) For routine referrals, the HCSSA must submit [ ~~submitting~~ ] the Case Information form documenting the reason for the delay to the case manager no later than 24 hours before the end of the 14-day time frame allowed [ ~~for routine referrals and documenting the reason for the delay~~ ].

§48.6022.Community Based Alternatives Annual Reassessment.

The home and community support services [ ~~Home and Community Support Services~~ ] agency must complete and return the Individual Service Plan (ISP) attachments and the medical necessity and level of care assessment [ ~~Client Assessment, Review, and Evaluation form~~ ] to the case manager's office during the second [ ~~between the fifth and the 20th day of the fourth~~ ] month before the month the ISP expires [ ~~expiration of the individual service plan (ISP)~~ ], according to reassessment due dates listed in Appendix XIX of the Community Based Alternatives Provider Manual [ ~~Community Based Alternatives manual~~ ] (CBA Reassessment Packet Due Dates).

§48.6078.Billable Units.

The following activities may be billed as Community Based Alternatives (CBA) services by a home and community support services agency [ ~~Home and Community Support Services agencies~~ ]:

(1) Nursing services:

(A) - (E) (No change.)

(F) time spent [ in ] performing the annual reassessment or level of care [ ~~Texas Index Level of Effort~~ ] resets which include actual participant contact and documentation of assessment forms and care plan;

(G) time spent [ in ] performing assessments and developing written specifications for adaptive aids; and

(H) (No change.)

(2) - (7) (No change.)

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 7, 2008.

TRD-200801803

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: May 18, 2008

For further information, please call: (512) 438-3734

Chapter 50. §1915(c) CONSOLIDATED WAIVER PROGRAM

The Health and Human Services Commission (HHSC) proposes, on behalf of the Department of Aging and Disability Services (DADS), amendments to §50.4, concerning eligibility criteria; §50.10, concerning additional eligibility criteria related to level of care; and §50.16, concerning the individual service plan (ISP); and proposes the repeal of §50.48, concerning utilization review; and §50.50, concerning the provision of services when costs exceed the individual cost limit, in Chapter 50, §1915(c) Consolidated Waiver Program.

BACKGROUND AND PURPOSE

The purpose of the amendments is, in part, to implement the 2008-09 General Appropriations Act (Article II, Department of Aging and Disability Services, Rider 45, H.B. 1, 80th Legislature, Regular Session, 2007), concerning waiver program cost limits. Rider 45 places an individual's annual cost limit for Consolidated Waiver Program (CWP) services at, as applicable: (1) 200 percent of the estimated annualized per capita cost of providing services in an intermediate care facility for persons with mental retardation (ICF/MR); (2) 50 percent of the reimbursement rate that would have been paid for that same individual under age 21 to receive services in a nursing facility; or (3) 200 percent of the reimbursement rate that would have been paid for that same individual age 21 or over to receive services in a nursing facility. However, a recent communication from the Centers for Medicare and Medicaid Services states that the waiver cannot have cost limits that vary depending upon a person's age. Therefore, the proposal uses the higher of the two cost limits described in (2) and (3). Rider 45 also authorizes DADS, under certain conditions, to use general revenue to pay for services that exceed the cost limit; requires DADS to use general revenue to continue to provide services to a person who was receiving waiver program services, such as CWP services, on September 1, 2005, at a cost that exceeded the waiver program's cost limit; and requires DADS to employ utilization management and utilization review practices as necessary to ensure that the appropriate scope and level of services are provided to an individual receiving services through a waiver program.

The purpose of the amendments and repeal is also to implement rule changes necessitated by a project under the direction of HHSC that will replace the state case-mix system for provider payments, which is based on the Texas Index for Level of Effort (TILE) model, with the federal case-mix system, which is based on the Resource Utilization Group (RUG) model. The transition to the RUG model affects the Texas Nursing Facility Program, as well as community-based waiver programs, including CWP, which serve individuals who have a determination of medical necessity for nursing facility care.

Furthermore, the amendments are proposed to update agency names and terminology, to correct cross-references, and to reorganize the structure of the rules for clarity and consistency with other DADS programs operated in accordance with §1915(c) of the federal Social Security Act.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §50.4 deletes references to the TILE payment rate and establishes the new cost limits for CWP services. The amendment also: (1) provides a cross-reference to 40 TAC §40.1 proposed as a new section elsewhere in this issue of the Texas Register, which governs the use of general revenue, under certain conditions, to pay for services that exceed the cost limit; (2) replaces references to the Texas Department of Human Services or DHS with references to the Department of Aging and Disability Services or DADS; (3) revises a reference to TDMHMR (the former Texas Department of Mental Health and Mental Retardation); (4) deletes references to slot allocations; and (5) updates the rule cross-references for Level of Care I and Level of Care VIII criteria.

The proposed amendment to §50.10 deletes a reference to the cost limit for individuals under age 21 in subsection (a)(2), because the cost limit is now referenced in the proposed amendment to §50.4. The proposed amendment also updates terminology to reflect current usage and updates the rule cross-reference for Level of Care VIII criteria.

The proposed amendment to §50.16, concerning the ISP, expands the provisions of the current rule to address the utilization management and review provisions of Rider 45. Subsection (d) of the proposed amendment describes five requirements that CWP services in the ISP must meet in order for DADS to approve the ISP. Subsection (e) of the proposed amendment requires the CWP provider to submit certain information to DADS that demonstrates that the CWP services in the ISP meet the five requirements described in subsection (d). Subsections (f) and (g) of the proposed amendment govern the procedures for utilization review and state that DADS may conduct utilization review at any time and may deny or reduce services if DADS determines that one or more of the CWP services in the ISP do not meet the requirements of subsection (d).

The proposed repeal of §50.48 eliminates a reference to the TILE rate and allows for the placement of utilization review requirements in the proposed amendment to §50.16.

The proposed repeal of §50.50 eliminates a rule governing exceptions to the CWP cost limit. The Centers for Medicare and Medicaid Services has indicated that exceptions to the cost limit may not be granted and, therefore, this rule is no longer necessary. The provisions in §50.50 covering an individual who was receiving CWP services on or before September 1, 2005, at a cost that exceeded the CWP individual cost limit have been revised to comply with Rider 45 and are included in proposed new §40.1, published elsewhere in this issue of the Texas Register.

FISCAL NOTE

SMALL BUSINESS AND MICRO-BUSINESS IMPACT ANALYSIS

PUBLIC BENEFIT AND COSTS

Mr. Waller anticipates that there will not be an economic cost to persons who are required to comply with the amendments and repeal. The amendments and repeal will not affect a local economy.

TAKINGS IMPACT ASSESSMENT

PUBLIC COMMENT

40 TAC §§50.4, 50.10, 50.16

STATUTORY AUTHORITY

The amendments are proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including DADS; Texas Human Resources Code, §161.021, which provides that the Aging and Disability Services Council shall study and make recommendations to the HHSC executive commissioner and the DADS commissioner regarding rules governing the delivery of services to persons who are served or regulated by DADS; and Texas Government Code, §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program in each agency that operates a portion of the Medicaid program.

The amendments affect Texas Government Code, §531.0055 and §531.021, and Texas Human Resources Code, §161.021.

§50.4.[ ~~Participant~~ ] Eligibility Criteria.

(a) To be determined eligible by the [ ~~Texas~~ ] Department of Aging and Disability [ ~~Human~~ ] Services (DADS) [ ~~(DHS)~~ ] for the Consolidated Waiver Program (CWP) [ ~~services~~ ], an applicant or participant must:

(1) live in the pilot area;

(2) have been determined by the Texas Health and Human Services Commission (HHSC) to be financially eligible for Medicaid [ ~~meet the financial eligibility criteria as defined in §50.6 of this title (relating to Financial Eligibility Criteria)~~ ];

(3) not be enrolled in another [ ~~participate in other §1915(c) Medicaid~~ ] waiver program [ ~~programs~~ ];

(4) have an individual service plan (ISP) with a cost for CWP services at or below one of the following individual cost limits considering all other resources, including resources described in §40.1 of this title (relating to Use of General Revenue for Services Exceeding the Individual Cost Limit of a Waiver Program): [ for home and community-based services developed by the interdisciplinary team (IDT). The individual service plan (ISP) for home and community-based services must specify the type of waiver services required to keep an individual in the community, the units of waiver services, and their frequency and duration as defined in §50.16 of this title (relating to Individual Service Plan); ]

(A) 200 percent of the estimated annualized per capita cost of providing services in an intermediate care facility for persons with mental retardation (ICF/MR); or

(B) 200 percent of the reimbursement rate that would have been paid for that same individual to receive services in a nursing facility;

~~[ ~~(5)~~ have an ISP for home and community-based services with an estimated annual cost that does not exceed:]~~

[ ~~(A)~~ 125% of the average aggregate cost of intermediate care facilities for individuals with mental retardation (ICF-MR) Level I, V, VI, and VIII for individuals who meet the ICF-MR level of care in accordance with §50.8(a)(2) of this title (relating to Individual Level-of-Care Criteria); or]

[ ~~(B)~~ 150% of the individual's actual Texas Index for Level of Effort (TILE) payment rate for individuals with a nursing facility level-of-care in accordance with §50.8(a)(1) of this title (relating to Individual Level-of-Care Criteria);]

(5) [ ~~(6)~~ ] have been determined by DADS:

(A) to meet the level-of-care criteria as described in §50.8(a)(1) of this chapter (relating to Individual Level of Care Criteria) [ ~~§50.8 of this title (relating to Individual Level-of-Care Criteria)~~ ]; or

(B) to qualify for:

(i) the ICF/MR Level of Care (LOC) I, as described in §9.238 of this title (relating to Level of Care I Criteria); or

(ii) the ICF/MR LOC VIII, as described in §9.239 of this title (relating to ICF/MR Level of Care VIII Criteria);

(6) [ ~~(7)~~ ] have ongoing needs for CWP [ ~~waiver~~ ] services with [ ~~whose~~ ] projected costs, as indicated in [ on ] the ISP, that do not exceed the following maximum service ceilings [ ~~that follow~~ ]:

(A) adaptive aids and medical supplies service category must not [ ~~cannot~~ ] exceed $10,000 per individual per ISP [ ~~plan~~ ] year without approval by DADS [ ~~with DHS maintaining the right to exception~~ ];

(B) minor home modifications service category :

(i) must not [ ~~cannot~~ ] exceed $7,500 [ ~~$7500~~ ] per individual per seven [ 7 ] years until the individual is 21 years of age without approval by DADS; and [ ~~age 21; then the minor home modifications service category cannot exceed $7500 (lifetime maximum) with a maximum of $300 for repairs per ISP year thereafter;~~ ]

(ii) must not exceed a lifetime maximum of $7,500 per individual without approval by DADS for an individual 21 years of age or older, after which minor home modifications must not exceed $300 per ISP year for maintenance or additional modifications;

(C) respite care must not [ ~~cannot~~ ] exceed 45 days per individual per ISP year without approval by DADS [ ~~with DHS maintaining the right to exception~~ ]; and

(D) dental services must not [ ~~care cannot~~ ] exceed $1,000 per individual [ ~~$1000~~ ] per ISP year;

(7) [ ~~(8)~~ ] receive CWP [ ~~waiver~~ ] services within 30 days after CWP [ ~~waiver~~ ] eligibility is determined;

(8) [ ~~(9)~~ ] meet the re-evaluation of institutional level-of-care criteria as performed annually by DADS [ ~~DHS~~ ] using the same criteria as used initially;

(9) [ ~~(10)~~ ] reside in :

(A) the applicant's or participant's [ ~~his~~ ] own home ; [ , ]

(B) [ in ] a licensed assisted living facility contracted with DADS to provide CWP services; [ , ]

(D) a 24-hour residential habilitation contracted with DADS to provide CWP services;

(E) a [ or ] family surrogate services setting contracted with DADS [ ~~DHS~~ ] to provide CWP services ; [ , ] or

(F) [ in ] a foster home that meets the requirements for foster homes in accordance with 40 TAC §700.1501 (relating to Decision on Foster Home Applications); [ (concerning Foster and Adoptive Home Development). CWP services will not be delivered to residents of hospitals, nursing facilities, ICF-MR facilities, or unlicensed assisted living facilities unless the facility is exempt in accordance with §50.30 of this title (relating to 24-Hour Residential Habilitation) as pertains to provider requirements for 24-hour residential habilitation; and ]

(10) not reside in an institutional setting, including a hospital, a nursing facility, an ICF/MR, or a facility required to be licensed as an assisted living facility but is not licensed; and

(11) choose CWP [ ~~waiver~~ ] services as an alternative to institutional care.

(b) A preadmission level of care assessment expires 120 calendar days from its issuance. For a participant [ ~~participants who are~~ ] enrolled in CWP [ ~~the waiver program~~ ] within 30 calendar days of discharge from an institution, the current level-of-care assessment may be used for enrollment and is valid until the expiration date on the approved ISP.

(c) Enrollment into CWP [ ~~this waiver program~~ ] is limited to the number of individuals [ ~~participants~~ ] approved by the Centers for Medicare and Medicaid Services (CMS) or the availability of state funding [ ~~and funded by the State of Texas~~ ].

~~[ ~~(d)~~ Enrollment in the pilot is restricted to 200 participants with the following slot allocation:]~~

~~[ ~~(1)~~ 50 slots for adults who meet the requirements for nursing facility care from the Community Based Alternatives (CBA) interest list;]~~

~~[ ~~(2)~~ 50 slots for children who meet the requirements for nursing facility care from the Medically Dependent Children Program (MDCP) interest list;]~~

~~[ ~~(3)~~ 25 slots for adults with mental retardation who meet the requirements for ICF-MR care level I from the Home and Community Based Services (HCS) interest list;]~~

~~[ ~~(4)~~ 25 slots for children with mental retardation who meet the requirements for ICF-MR care level I from the HCS interest list;]~~

[ ~~(5)~~ 25 slots for adults with related conditions or developmental disabilities who meet the requirements for ICF-MR care level VIII from the CLASS interest list, with one of these slots specifically targeted to an individual who is deaf-blind with multiple disabilities from the Deaf Blind Multiple Disabilities (DBMD) interest list; and]

[ ~~(6)~~ 25 slots for children with related conditions or developmental disabilities who meet the requirements for ICF-MR care level VIII from the CLASS interest list, with one of these slots specifically targeted to an individual who is deaf-blind with multiple disabilities from the DBMD interest list.]

~~[ ~~(e)~~ If the funding for CWP changes, the ratios for slot allocation will remain the same.]~~

~~[ ~~(f)~~ For purposes of slot allocation, HCS means TDMHMR waiver currently operating in the pilot area.]~~

(d) [ ~~(g)~~ ] An individual receiving services reimbursed through the Texas Medicaid Nursing Facility Program [ ~~who resides in a Texas nursing facility and is enrolled in Medicaid~~ ] will be approved for CWP [ ~~Community Care services~~ ] if the individual requests services while residing in the [ ~~a Texas~~ ] nursing facility and meets all eligibility requirements for CWP [ ~~Community Care services~~ ].

[ ~~(1)~~ ] If the individual is discharged into the community before being determined eligible for CWP [ ~~to receive nursing facility Medicaid and Community Care services~~ ], the individual will be denied immediate enrollment in CWP. [ ~~Community Care services unless:~~ ]

[ ~~(A)~~ The individual is next in line to fill a CWP slot as outlined in §50.32 of this title (relating to Maintenance of Interest Lists) and there is an opening within the number approved by CMS with available state funding; or]

~~[ ~~(B)~~ The individual has requested Community Care services that are part of an entitlement program.]~~

[ ~~(2)~~ Upon admission to or discharge from the nursing facility, DHS must make information on Community Care services, including Medicaid waiver services, available to the nursing facility resident.]

§50.10.Additional Eligibility Criteria Related to Level of Care.

(a) An individual who meets [ ~~Individuals who meet~~ ] the level-of-care criteria for medical necessity for nursing facility care in accordance with §50.8(a)(1) of this chapter [ ~~title~~ ] (relating to Individual Level of Care Criteria) must also [ ~~meet the following requirements~~ ]:

(1) meet two or more of the criteria for nursing home risk, as specified in the Resident Assessment Instrument Home Care Assessment for Nursing Home Risk [ ~~as revised in April 1996 in accordance with §48.6003(10)(A-G) of this title (relating to Client Eligibility Criteria Nursing Home Risk)~~ ], unless the individual [ ~~except for the following individuals who are exempt from meeting the nursing home risk criteria if~~ ]:

(A) is transferring to the Consolidated Waiver Program (CWP) from a nursing facility ; or

(B) is applying for or receiving §1915(c) waiver services before the individual's [ ~~their~~ ] 21st birthday; and

(2) if under 21 years of age , [ : ]

[ ~~(A)~~ ] [ ~~the participant must~~ ] access services through the Comprehensive Care Program . [ ~~; and~~ ]

~~[ ~~(B)~~ yearly Consolidated Waiver Program services are limited to 50% of the cost ceiling in §50.4(a)(5)(B) of this title (relating to Participant Eligibility Criteria)]~~

(b) An individual who meets Level of Care VIII criteria, as described in §9.239 of this title (relating to ICF/MR Level of Care VIII Criteria) [ Individuals who meet the level-of-care criteria for an intermediate care facility for the mentally retarded with related conditions (ICF-MR/RC Level VIII) in accordance with §50.8(a)(2)(A) of this title (relating to Individual Level of Care Criteria) ] and who wishes [ ~~wish~~ ] to fill a slot [ ~~slots~~ ] in the program designated for people who are deaf blind [ ~~deaf-blind~~ ] with multiple disabilities must provide medical documentation that verifies the existence of deaf blindness with multiple disabilities.

§50.16.Individual Service Plan (ISP).

(a) In this section, the term "individual" means a person applying for or enrolled in the Consolidated Waiver Program (CWP), unless the context clearly indicates otherwise.

(b) A CWP provider must coordinate with an interdisciplinary team to develop an individual service plan (ISP) that is based on an assessment of the individual and that meets the criteria in subsection (d) of this section.

(c) Before providing CWP services in accordance with the ISP, a CWP provider must obtain approval from the Department of Aging and Disability Services (DADS).

(d) To be approved by DADS, CWP services in the ISP must:

(1) be necessary to protect the individual's health and welfare in the community;

(2) supplement rather than replace the individual's natural supports and other non-CWP services and supports for which the individual may be eligible;

(3) prevent the individual's admission to an institution;

(4) be the most appropriate type and amount of services to meet the individual's needs; and

(5) be cost effective.

(e) To demonstrate that the CWP services in the ISP meet the requirements described in subsection (d) of this section, the CWP provider must submit to DADS the following:

(1) an assessment of the individual supporting the CWP services recommended by the CWP provider; and

(2) documentation that other sources for adaptive aids and medical supplies are unavailable.

(f) DADS conducts utilization review of an ISP and supporting documentation at any time to determine if the CWP services specified in the ISP meet the requirements described in subsection (d) of this section.

(1) The CWP provider must submit documentation supporting the ISP to DADS as requested by DADS.

(2) If DADS determines that one or more of the CWP services specified in the ISP do not meet the requirements described in subsection (d) of this section, DADS denies or reduces the service, modifies the ISP, and sends written notification to the individual and CWP provider.

(g) In addition to the utilization review conducted in accordance with subsection (f) of this section, DADS may conduct utilization reviews of CWP providers and CWP services based on utilization patterns and trends.

~~[ ~~(a)~~ Waiver participants must have a person-directed individual service plan (ISP) for waiver services developed by the interdisciplinary team (IDT) as described in the waiver request.]~~

[ ~~(b)~~ The IDT members must sign and date the ISP prior to implementation of the plan. The IDT members must certify in writing that the waiver services are necessary as an alternative to institutionalization and appropriate to meet the needs of the individual in the community.]

~~[ ~~(c)~~ The Texas Department of Human Services (DHS) must approve and the IDT must update the ISP at least annually.]~~

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 7, 2008.

TRD-200801784

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: May 18, 2008

For further information, please call: (512) 438-3734

40 TAC §50.48, §50.50

STATUTORY AUTHORITY

The repeal is proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including DADS; Texas Human Resources Code, §161.021, which provides that the Aging and Disability Services Council shall study and make recommendations to the HHSC executive commissioner and the DADS commissioner regarding rules governing the delivery of services to persons who are served or regulated by DADS; and Texas Government Code, §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program in each agency that operates a portion of the Medicaid program.

The repeal affects Texas Government Code, §531.0055 and §531.021, and Texas Human Resources Code, §161.021.

§50.48.Utilization Review.

§50.50.Providing CWP Services When Costs Exceed the Individual Cost Limit.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 7, 2008.

TRD-200801785

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: May 18, 2008

For further information, please call: (512) 438-3734

40 TAC §50.28

The Health and Human Services Commission (HHSC) proposes, on behalf of the Department of Aging and Disability Services (DADS), an amendment to §50.28, concerning housing options in assisted living/residential care services, in Chapter 50, §1915(c) Consolidated Waiver Program.

BACKGROUND AND PURPOSE

The purpose of the amendment is to implement Senate Bill 1318, 80th Legislature, Regular Session, 2007, which amended Texas Health and Safety Code, §247.069. Section 247.069 requires residential care programs, including the Consolidated Waiver Program (CWP), to provide consumers with the opportunity to choose an assisted living facility that meets construction-related licensing standards without regard to the number of units in the facility, if the consumers are advised of all other community-based service options. Senate Bill 1318 removed the specific facility requirements from §247.069, and, therefore, the specific facility requirements need to be removed from the rule.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §50.28 removes the specific facility requirements listed in subsection (d).

FISCAL NOTE

SMALL BUSINESS AND MICRO-BUSINESS IMPACT ANALYSIS

PUBLIC BENEFIT AND COSTS

Mr. Waller anticipates that there will not be an economic cost to persons who are required to comply with the amendment. The amendment will not affect a local economy.

TAKINGS IMPACT ASSESSMENT

PUBLIC COMMENT

Questions about the content of this proposal may be directed to Claudia Mansbridge at (512) 438-3444 in DADS' Provider Services Division. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-029, Department of Aging and Disability Services W-615, P.O. Box 149030, Austin, Texas 78714-9030, or street address 701 West 51st St., Austin, TX 78751; faxed to (512) 438-5759; or e-mailed to rulescomments@dads.state.tx.us. To be considered, comments must be submitted no later than 30 days after the date of this issue of the Texas Register. The last day to submit comments falls on a Sunday; therefore, comments must be either (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered to DADS before 5:00 p.m. on DADS' last working day of the comment period; or (3) faxed or e-mailed by midnight on the last day of the comment period. When faxing or e-mailing comments, please indicate "Comments on Proposed Rule 029" in the subject line.

STATUTORY AUTHORITY

The amendment is proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including DADS; Texas Human Resources Code, §161.021, which provides that the Aging and Disability Services Council shall study and make recommendations to the HHSC executive commissioner and the DADS commissioner regarding rules governing the delivery of services to persons who are served or regulated by DADS; Texas Government Code, §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program in each agency that operates a portion of the Medicaid program; and Texas Health and Safety Code, §247.069, which provides consumer choice for assisted living in community care programs.

The amendment affects Texas Government Code, §531.0055 and §531.021; Texas Human Resources Code, §161.021; and Texas Health and Safety Code, §247.069.

§50.28.Housing Options in Assisted Living/Residential Care Services.

(a) - (c) (No change.)

(d) A residential care non-apartment setting is a licensed assisted living facility that has living units that do not meet either the definition of an assisted living apartment or a residential care apartment. A living unit must not exceed double occupancy. [ ~~The facility must be:~~ ]

~~[ ~~(1)~~ a freestanding building with a licensed capacity of 16 or fewer beds; or]~~

~~[ ~~(2)~~ a building that:]~~

~~[ ~~(A)~~ has never been licensed by the Department of Aging and Disability Services as anything other than an assisted living facility;]~~

~~[ ~~(B)~~ is not physically connected to a nursing facility licensed under Texas Health and Safety Code, Chapter 242;]~~

~~[ ~~(C)~~ was constructed before September 1, 2005; and]~~

~~[ ~~(D)~~ meets all other requirements of this chapter.]~~

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 3, 2008.

TRD-200801747

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: May 18, 2008

For further information, please call: (512) 438-3734

Chapter 51. MEDICALLY DEPENDENT CHILDREN PROGRAM

Subchapter A. INTRODUCTION

40 TAC §51.103

The Health and Human Services Commission (HHSC) proposes, on behalf of the Department of Aging and Disability Services (DADS), an amendment to §51.103, concerning definitions, in Chapter 51, Medically Dependent Children Program (MDCP).

BACKGROUND AND PURPOSE

The purpose of the amendment is to implement a rule change necessitated by a project under the direction of HHSC that will replace the state case-mix system for provider payments, which is based on the Texas Index for Level of Effort (TILE) model, with the federal case-mix system, which is based on the Resource Utilization Group (RUG) model. The TILE-to-RUG project implements Texas Health and Safety Code, §§242.221 et seq, which requires DADS to use an automated system for nursing facility reimbursement and an assessment form designed by the United States Health Care Financing Administration (now the Centers for Medicare and Medicaid Services). As allowed by Texas Health and Safety Code, §242.221(b), DADS and HHSC have elected to add other components of the state Medicaid program, such as MDCP, to the automated system of reimbursement and, therefore, to require use of an assessment form similar to the form on which nursing facility residents are assessed. The reference in §51.103(13) to an individual's TILE score will not be applicable under the RUG system and, therefore, needs to be revised.

The amendment also updates terminology in response to House Bill 2426, 80th Legislature, Regular Session, 2007, which amended the Texas Occupations Code, Chapter 301, and changed the name of the Board of Nurse Examiners for the State of Texas (BNE) to the Texas Board of Nursing.

SECTION-BY-SECTION SUMMARY

The amendment to §51.103(8) revises the definition of "BNE" so that references in the chapter to the BNE will mean the Texas Board of Nursing. The proposal also amends the definitions in §51.103(30), (35), and (41) to update references to the BNE.

The amendment to §51.103(13) revises the definition of "cost ceiling" to eliminate references to an individual's TILE score and to the specific percentage of the nursing facility reimbursement rate that is associated with an individual's cost ceiling. The percentage was revised in the 2008-2009 General Appropriations Act (Article II, Department of Aging and Disability Services, Rider 45, House Bill 1, 80th Legislature, Regular Session, 2007) and is better placed in a section other than the definitions section. An amendment to §51.203, proposed elsewhere in this issue of the Texas Register , includes the revised percentage of the nursing facility reimbursement rate that is associated with an individual's cost ceiling.

The definition of "TILE" in §51.103(49) is deleted from the section, because it is now an obsolete term and is no longer used in Chapter 51.

FISCAL NOTE

SMALL BUSINESS AND MICRO-BUSINESS IMPACT ANALYSIS

DADS has determined that the proposed amendment will not have an adverse economic effect on small businesses or micro-businesses, because the amendment imposes no new requirements that would cause them to alter their business practices.

PUBLIC BENEFIT AND COSTS

Mr. Waller anticipates that there will not be an economic cost to persons who are required to comply with the amendment. The amendment will not affect a local economy.

TAKINGS IMPACT ASSESSMENT

PUBLIC COMMENT

Questions about the content of this proposal may be directed to Lynn Cooper at (512) 438-3519 in DADS' Provider Services Division. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-013, Department of Aging and Disability Services W-615, P.O. Box 149030, Austin, Texas 78714-9030, or street address 701 West 51st St., Austin, TX 78751; faxed to (512) 438-5759; or e-mailed to rulescomments@dads.state.tx.us . To be considered, comments must be submitted no later than 30 days after the date of this issue of the Texas Register . The last day to submit comments falls on a Sunday; therefore, comments must be either (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered to DADS before 5:00 p.m. on DADS' last working day of the comment period; or (3) faxed or e-mailed by midnight on the last day of the comment period. When faxing or e-mailing comments, please indicate "Comments on Proposed Rule 013" in the subject line.

STATUTORY AUTHORITY

The amendment affects Texas Government Code, §531.0055 and §531.021; Texas Human Resources Code, §161.021; and Texas Health and Safety Code, §242.226.

§51.103.Definitions.

The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise.

(1) - (7) (No change.)

(8) BNE-- Formerly, this referred to the Board of Nurse Examiners for the State of Texas. It now refers to the Texas Board of Nursing.

(9) - (12) (No change.)

(13) Cost ceiling--The maximum dollar amount available to an individual for MDCP services per IPC year[ ~~, which is based on 63% of the nursing facility rate associated with the individual's TILE score~~ ].

(14) - (29) (No change.)

(30) LVN--Licensed vocational nurse. A person licensed by the Texas Board of Nursing [ ~~BNE~~ ] or who holds a license from another state recognized by the Texas Board of Nursing [ ~~BNE~~ ] to practice vocational nursing in Texas.

(31) - (34) (No change.)

(35) Practitioner--A physician currently licensed in Texas, Louisiana, Arkansas, Oklahoma, or New Mexico; a physician assistant currently licensed in Texas; or an RN approved by the Texas Board of Nursing [ ~~BNE~~ ] to practice as an advanced practice nurse.

(36) - (40) (No change.)

(41) RN--Registered nurse. A person licensed by the Texas Board of Nursing [ ~~BNE~~ ] or who holds a license from another state recognized by the Texas Board of Nursing [ ~~BNE~~ ] to practice professional nursing in Texas.

(42) - (48) (No change.)

~~[(49) TILE--Texas Index for Level of Effort. The system used to identify the intensity of the care needs of a person in a Texas nursing facility and in MDCP.]~~

(49) [ ~~(50)~~ ] Transition assistance services--One-time service provided to a Medicaid-eligible resident of a nursing facility located in Texas to assist the resident in moving from the nursing facility into the community to receive MDCP services.

(50) [ ~~(51)~~ ] Working day--Any day except Saturday, Sunday, a state holiday, or a federal holiday.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 7, 2008.

TRD-200801804

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: May 18, 2008

For further information, please call: (512) 438-3734

Chapter 51. MEDICALLY DEPENDENT CHILDREN PROGRAM

The Health and Human Services Commission (HHSC) proposes, on behalf of the Department of Aging and Disability Services (DADS), an amendment to §51.203, concerning eligibility requirements; new §51.409, concerning utilization review; and the repeal of §51.239, concerning the provision of services when costs exceed the individual cost ceiling, in Chapter 51, Medically Dependent Children Program.

BACKGROUND AND PURPOSE

The purpose of the amendment, new section, and repeal is to implement the 2008-09 General Appropriations Act (Article II, Department of Aging and Disability Services, Rider 45, H.B. 1, 80th Legislature, Regular Session, 2007), concerning waiver program cost limits. Rider 45 places an individual's annual cost limit for Medically Dependent Children Program (MDCP) services at 50 percent of the reimbursement rate that would have been paid for the same individual to receive services in a nursing facility; authorizes DADS, under certain conditions, to use general revenue to pay for services that exceed the cost limit; requires DADS to use general revenue to continue to provide services to a person who was receiving waiver program services, such as MDCP services, on September 1, 2005, at a cost that exceeded the waiver program's cost limit; and requires DADS to employ utilization management and utilization review practices as necessary to ensure that the appropriate scope and level of services are provided to an individual receiving services through a waiver program.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §51.203 implements Rider 45 provisions by: (1) changing the cost limit from 63 percent of the reimbursement rate that would have been paid for the same individual to receive services in a nursing facility (currently in §51.101(13)) to 50 percent of the reimbursement rate that would have been paid for the same individual to receive services in a nursing facility; and (2) providing a cross-reference to 40 TAC §40.1 proposed as a new section elsewhere in this issue of the Texas Register, which governs the use of general revenue, under certain conditions, to pay for services that exceed the cost limit.

Proposed new §51.409 states that DADS may conduct utilization reviews of MDCP providers and MDCP services based on utilization patterns and trends to implement Rider 45's requirement that DADS ensure that the appropriate scope and level of services are provided to an individual receiving services through a waiver program.

The proposed repeal of §51.239 eliminates a rule governing exceptions to the MDCP cost ceiling. The Centers for Medicare and Medicaid Services has indicated that exceptions to the cost ceiling may not be granted and, therefore, this rule is no longer necessary. The provisions in §51.239 covering an individual who was receiving MDCP services on or before September 1, 2005, at a cost that exceeded the MDCP individual cost ceiling have been revised to comply with Rider 45 and are included in proposed new §40.1, published elsewhere in this issue of the Texas Register.

FISCAL NOTE

SMALL BUSINESS AND MICRO-BUSINESS IMPACT ANALYSIS

PUBLIC BENEFIT AND COSTS

TAKINGS IMPACT ASSESSMENT

PUBLIC COMMENT

Subchapter B. ELIGIBILITY, ENROLLMENT, AND SERVICES

1. ELIGIBILITY

40 TAC §51.203

STATUTORY AUTHORITY

The amendment is proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including DADS; Texas Human Resources Code, §161.021, which provides that the Aging and Disability Services Council shall study and make recommendations to the HHSC executive commissioner and the DADS commissioner regarding rules governing the delivery of services to persons who are served or regulated by DADS; and Texas Government Code, §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program in each agency that operates a portion of the Medicaid program.

The amendment affects Texas Government Code, §531.0055 and §531.021, and Texas Human Resources Code, §161.021.

§51.203.Eligibility Requirements.

To be eligible to participate in MDCP, a person must:

(1) - (3) (No change.)

(4) meet the financial Medicaid eligibility criteria described in Texas Administrative Code, Title 1, [ ~~1 TAC~~ ] Chapter 358 (relating to Medicaid Eligibility), based on the person's income and resources [ ~~of the individual~~ ];

(5) - (6) (No change.)

(7) have an IPC with a cost for MDCP services at or below 50 percent of the reimbursement rate that would have been paid for the same individual to receive nursing facility services considering all other resources, including resources described in §40.1 of this title (relating to Use of General Revenue for Services Exceeding the Individual Cost Limit of a Waiver Program) [ ~~that a practitioner has signed~~ ]; and

(8) (No change.)

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 7, 2008.

TRD-200801786

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: May 18, 2008

For further information, please call: (512) 438-3734

3. SERVICES

40 TAC §51.239

STATUTORY AUTHORITY

The repeal is proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including DADS; Texas Human Resources Code, §161.021, which provides that the Aging and Disability Services Council shall study and make recommendations to the HHSC executive commissioner and the DADS commissioner regarding rules governing the delivery of services to persons who are served or regulated by DADS; and Texas Government Code, §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program in each agency that operates a portion of the Medicaid program.

The repeal affects Texas Government Code, §531.0055 and §531.021, and Texas Human Resources Code, §161.021.

§51.239.Providing MDCP Services When Costs Exceed the Individual Cost Ceiling.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 7, 2008.

TRD-200801787

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: May 18, 2008

For further information, please call: (512) 438-3734

Subchapter D. PROVIDER REQUIREMENTS

1. CONTRACTING REQUIREMENTS

40 TAC §51.409

STATUTORY AUTHORITY

The new section is proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including DADS; Texas Human Resources Code, §161.021, which provides that the Aging and Disability Services Council shall study and make recommendations to the HHSC executive commissioner and the DADS commissioner regarding rules governing the delivery of services to persons who are served or regulated by DADS; and Texas Government Code, §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program in each agency that operates a portion of the Medicaid program.

The new section affects Texas Government Code, §531.0055 and §531.021, and Texas Human Resources Code, §161.021.

§51.409.Utilization Review.

DADS may conduct utilization reviews of MDCP providers and MDCP services based on utilization patterns and trends.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 7, 2008.

TRD-200801788

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: May 18, 2008

For further information, please call: (512) 438-3734

Chapter 60. CONTRACTING TO PROVIDE PROGRAMS OF ALL-INCLUSIVE CARE FOR THE ELDERLY (PACE)

40 TAC §60.16

The Health and Human Services Commission (HHSC) proposes, on behalf of the Department of Aging and Disability Services (DADS), an amendment to §60.16, concerning medical necessity assessments, in Chapter 60, Contracting to Provide Programs of All-Inclusive Care for the Elderly (PACE).

BACKGROUND AND PURPOSE

The purpose of the amendment is to implement a rule change necessitated by a project under the direction of HHSC that will replace the state case-mix system for provider payments, which is based on the Texas Index for Level of Effort (TILE) model, with the federal case-mix system, which is based on the Resource Utilization Group (RUG) model. The TILE-to-RUG project implements Texas Health and Safety Code, §§242.221 et seq, which requires DADS to use an automated system for nursing facility reimbursement and an assessment form designed by the United States Health Care Financing Administration (now the Centers for Medicare and Medicaid Services). As allowed by Texas Health and Safety Code, §242.221(b), DADS and HHSC have elected to add other components of the state Medicaid program, such as PACE, to the automated system of reimbursement and, therefore, to require use of an assessment form similar to the form on which nursing facility residents are assessed. As a result, DADS will replace its Client Assessment, Review and Evaluation (CARE) form (also known as Form 3652) with forms based on the federal Minimum Data Set (MDS) assessment for making medical necessity determinations and calculating the RUG. For the purpose of this rule, the community-based assessment is termed "the medical necessity and level of care assessment."

SECTION-BY-SECTION SUMMARY

The amendment replaces references to the CARE form and to the TILE assessment with references to the medical necessity and level of care assessment. It also corrects outdated references to the Texas Department of Human Services (DHS) and replaces them with references to either DADS or to HHSC, as appropriate.

FISCAL NOTE

SMALL BUSINESS AND MICRO-BUSINESS IMPACT ANALYSIS

PUBLIC BENEFIT AND COSTS

Barry Waller, DADS Assistant Commissioner for Provider Services, has determined that, for each year of the first five years the amendment is in effect, the public benefit expected as a result of enforcing the amendment is that DADS rules will provide accurate requirements for PACE providers. The amendment, which requires providers to conduct assessments of individuals served in the community on a form similar to the form on which nursing facility residents are assessed, will allow for better comparison of services in Texas to services in other states and provide for more streamlined and integrated business processes. These improvements will in turn lead to opportunities for improved services for DADS' consumers.

Mr. Waller anticipates that there will not be an economic cost to persons who are required to comply with the amendment. The amendment will not affect a local economy.

TAKINGS IMPACT ASSESSMENT

PUBLIC COMMENT

Questions about the content of this proposal may be directed to Pam Lovell at (512) 438-2489 in DADS' Provider Services Division. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-012, Department of Aging and Disability Services W-615, P.O. Box 149030, Austin, Texas 78714-9030, or street address 701 West 51st St., Austin, TX 78751; faxed to (512) 438-5759; or e-mailed to rulescomments@dads.state.tx.us . To be considered, comments must be submitted no later than 30 days after the date of this issue of the Texas Register . The last day to submit comments falls on a Sunday; therefore, comments must be either (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered to DADS before 5:00 p.m. on DADS' last working day of the comment period; or (3) faxed or e-mailed by midnight on the last day of the comment period. When faxing or e-mailing comments, please indicate "Comments on Proposed Rule 012" in the subject line.

STATUTORY AUTHORITY

The amendment affects Texas Government Code, §531.0055 and §531.021; Texas Human Resources Code, §161.021; and Texas Health and Safety Code, §242.226.

§60.16.Medical Necessity Assessments.

(a) The provider agency must complete a medical necessity and level of care assessment [ ~~Client Assessment and Review Evaluation (CARE) form~~ ] based on the client's total needs.

(b) The provider agency must electronically transmit [ ~~or mail~~ ] the medical necessity and level of care assessment [ ~~CARE form~~ ] to the agency with which the Texas Health and Human Services Commission (HHSC) [ ~~Department of Human Services (DHS)~~ ] contracts for medical necessity determinations.

(c) The provider agency must enroll any eligible applicant within 60 calendar days after [ of ] the date of the medical necessity and level of care assessment [ ~~CARE form~~ ].

(d) The provider agency must complete another medical necessity and level of care assessment [ ~~CARE form~~ ] and submit it to the agency with which HHSC [ ~~DHS~~ ] contracts for medical necessity determinations 12 months after the initial assessment.

(1) If the client meets the state's medical necessity criteria and the client has an irreversible or progressive diagnosis, or a terminal illness that could reasonably be expected to result in death in the next six months, and the Department of Aging and Disability Services (DADS) [ ~~DHS~~ ] determines that there is no reasonable expectation of improvement or significant change in the client's condition because of severity of a chronic condition or the degree of impairment of functional capacity, DADS [ ~~DHS~~ ] will permanently waive the annual recertification requirement and the client may be deemed to be continually eligible for PACE. The medical necessity and level of care assessment [ ~~CARE form~~ ] must have sufficient documentation to substantiate the client's prognosis and the client's functional capacity.

(2) In addition, if DADS [ ~~DHS~~ ] determines that a PACE client no longer meets the medical necessity criteria for nursing facility care, the client may be deemed to continue to be eligible for PACE until the next annual reassessment, if, in the absence of PACE services, it is reasonable to expect that the client would meet the nursing facility medical necessity criteria within the next six months.

(e) The provider agency's licensed nurse must complete the medical necessity and level of care assessment [ ~~CARE form~~ ] for the provider agency. The licensed nurse must be registered with the agency with which HHSC [ ~~DHS~~ ] contracts for medical necessity determinations as having, within the last two years, received and passed a state-approved [ ~~Texas Health and Human Services Commission approved~~ ] training on the medical necessity and level of care assessment [ ~~Texas Index for Level of Effort (TILE) assessment~~ ].

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 7, 2008.

TRD-200801805

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: May 18, 2008

For further information, please call: (512) 438-3734

Chapter 83. AREA AGENCY ON AGING ADMINISTRATIVE REQUIREMENTS

40 TAC §§83.1, 83.2, 83.11

The Health and Human Services Commission (HHSC) proposes, on behalf of the Department of Aging and Disability Services (DADS), the repeal of §83.1, concerning area agency on aging administrative responsibilities, §83.2, concerning area agency on aging fiscal responsibilities, and §83.11, concerning ombudsman services, in Chapter 83, Area Agency on Aging Administrative Requirements.

BACKGROUND AND PURPOSE

HHSC, on behalf of DADS, is proposing new rules that govern area agencies on aging (AAAs) and implementation of the Older Americans Act of 1965, as amended in 2006, elsewhere in this issue of the Texas Register . As part of the proposal to rewrite and reorganize the AAA rules in Chapter 85, DADS proposes to repeal obsolete rules in Chapter 83 that are no longer required in the rule base.

SECTION-BY-SECTION SUMMARY

The repeal of §83.1 deletes the requirements governing administrative responsibilities, including requirements related to AAA structure, accountability, contracted provider review, targeting, uniform telephone listings, identification of facilities, and emergency management.

The repeal of §83.2 deletes the requirements governing fiscal responsibilities, including requirements related to purchases, independent audit, an indirect costs allocation plan, disallowance of costs, recapture of payments, budget submissions, contracting, service match, program income, adequate proportion, and ombudsman maintenance of effort.

The repeal of §83.11 deletes the requirements governing ombudsman services, including requirements related to eligibility, access of managing local ombudsmen, responsibilities of contractors to operate local ombudsman entities, complaint process, certification program, and responsibilities of certified volunteer ombudsmen.

FISCAL NOTE

Gordon Taylor, DADS Chief Financial Officer, has determined that, for the first five years after the repeal, there are no foreseeable implications relating to costs or revenues of state or local governments.

SMALL BUSINESS AND MICRO-BUSINESS IMPACT ANALYSIS

DADS has determined that the proposed repeal will have no adverse economic effect on small businesses or micro-businesses, because the repeal applies only to AAAs, which are public or private nonprofit agencies or organizations. A small or micro-business is defined, in part, as a legal entity that is formed for the purpose of making a profit.

PUBLIC BENEFIT AND COSTS

Gary Jessee, DADS Assistant Commissioner for Access and Intake, has determined that, for each year of the first five years after the repeal, the public benefit expected as a result of repealing the sections is to accommodate the reorganization of AAA rules in Chapter 85, resulting in clearer, more up-to-date rules.

Mr. Jessee anticipates that there will not be an economic cost to persons who are affected by the repeal. The repeal will not affect a local economy.

TAKINGS IMPACT ASSESSMENT

PUBLIC COMMENT

Questions about the content of this proposal may be directed to Toni Packard at (512) 438-4290 in DADS' Access and Intake Division, Area Agencies on Aging Section. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-045, Department of Aging and Disability Services W-615, P.O. Box 149030, Austin, Texas 78714-9030, or street address 701 West 51st St., Austin, TX 78751; faxed to (512) 438-5759; or e-mailed to rulescomments@dads.state.tx.us . To be considered, comments must be submitted no later than 30 days after the date of this issue of the Texas Register . The last day to submit comments falls on a Sunday; therefore, comments must be either (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered to DADS before 5:00 p.m. on DADS' last working day of the comment period; or (3) faxed or e-mailed by midnight on the last day of the comment period. When faxing or e-mailing comments, please indicate "Comments on Proposed Rule 045" in the subject line.

STATUTORY AUTHORITY

The repeal implements Texas Government Code, §531.0055, and Texas Human Resources Code, §161.021.

§83.1.Area Agency on Aging Administrative Responsibilities.

§83.2.Area Agency on Aging Fiscal Responsibilities.

§83.11.Ombudsman Services.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 7, 2008.

TRD-200801810

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: May 18, 2008

For further information, please call: (512) 438-3734

Chapter 84. GENERAL SERVICE REQUIREMENTS

40 TAC §§84.1 - 84.3, 84.5 - 84.9, 84.11, 84.13, 84.15, 84.17, 84.19, 84.21, 84.23

The Health and Human Services Commission (HHSC) proposes, on behalf of the Department of Aging and Disability Services (DADS), the repeal of Chapter 84, General Service Requirements, consisting of §84.1, concerning general service requirements; §84.2, concerning services definitions; §84.3, concerning transportation service requirements for the elderly; §84.5, concerning nutrition service requirements; §84.6, concerning participant assessment; §84.7, concerning homemaker service requirements; §84.8, concerning data management; §84.9, concerning personal assistance service requirements; §84.11, concerning health promotion requirements; §84.13, concerning adult day care service requirements; §84.15, concerning emergency response service standards; §84.17, concerning in-home service requirements for frail older adults; §84.19, concerning residential repair services; §84.21, concerning senior center requirements; and §84.23, concerning respite voucher program.

BACKGROUND AND PURPOSE

SECTION-BY-SECTION SUMMARY

The repeal of §84.1 deletes general service requirements for subcontractors of AAAs, including requirements related to eligibility, confidentiality of records, complaint and appeals procedures, recordkeeping, reporting, contributions, insurance, facilities, and contractor and subcontractor responsibilities for compliance.

The repeal of §84.2 deletes the service definitions for the chapter.

The repeal of §84.3 deletes the requirements for providing transportation services to the elderly, including requirements related to transit provider requirements, methods of service delivery, training, and personal use of vehicles.

The repeal of §84.5 deletes the requirements for providing congregate and home-delivered nutrition services, including requirements related to menus, modified diets, meal packaging, training, and complaints.

The repeal of §84.6 deletes the requirements for participant assessment services, including a description of service activities and requirements related to recordkeeping and monitoring.

The repeal of §84.7 deletes the requirements for AAAs in providing homemaker services, including a description of service activities and staff qualifications.

The repeal of §84.8 deletes the requirements for data management services.

The repeal of §84.9 deletes the requirements for AAAs in providing personal assistance services, including a description of service activities.

The repeal of §84.11 deletes the requirements for AAAs in providing health services, including a description of service activities.

The repeal of §84.13 deletes the requirements for AAAs in providing adult day services.

The repeal of §84.15 deletes the requirements for AAAs in providing emergency response services (ERS), including requirements related to staffing and maintenance of records.

The repeal of §84.17 deletes the requirements for AAAs in providing in-home services for frail older adults, including a description of service activities and requirements related to program participant eligibility.

The repeal of §84.19 deletes the requirements for AAAs in providing residential repair services, including the purpose of the service, a description of approved services, and prohibited activities.

The repeal of §84.21 deletes the requirements for senior centers, including the operation of the physical facility and the designation of focal points.

The repeal of §84.23 deletes the requirements for AAAs in implementing a respite voucher program, including targeting requirements and caregiver responsibilities.

FISCAL NOTE

SMALL BUSINESS AND MICRO-BUSINESS IMPACT ANALYSIS

PUBLIC BENEFIT AND COSTS

Mr. Jessee anticipates that there will not be an economic cost to persons who are affected by the repeal. The repeal will not affect a local economy.

TAKINGS IMPACT ASSESSMENT

PUBLIC COMMENT

Questions about the content of this proposal may be directed to Toni Packard at (512) 438- 4290 in DADS' Access and Intake Division, Area Agencies on Aging Section. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-045, Department of Aging and Disability Services W-615, P.O. Box 149030, Austin, Texas 78714-9030, or street address 701 West 51st St., Austin, TX 78751; faxed to (512) 438-5759; or e-mailed to rulescomments@dads.state.tx.us . To be considered, comments must be submitted no later than 30 days after the date of this issue of the Texas Register . The last day to submit comments falls on a Sunday; therefore, comments must be either (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered to DADS before 5:00 p.m. on DADS' last working day of the comment period; or (3) faxed or e-mailed by midnight on the last day of the comment period. When faxing or e-mailing comments, please indicate "Comments on Proposed Rule 045" in the subject line.

STATUTORY AUTHORITY

The repeal implements Texas Government Code, §531.0055, and Texas Human Resources Code, §161.021.

§84.1.General Service Requirements.

§84.2.Services Definitions.

§84.3.Transportation Service Requirements for the Elderly.

§84.5.Nutrition Service Requirements.

§84.6.Participant Assessment.

§84.7.Homemaker Service Requirements.

§84.8.Data Management.

§84.9.Personal Assistance Service Requirements.

§84.11.Health Promotion Requirements.

§84.13.Adult Day Care Service Requirements.

§84.15.Emergency Response Service Standards.

§84.17.In-Home Service Requirements for Frail Older Adults.

§84.19.Residential Repair Services.

§84.21.Senior Center Requirements.

§84.23.Respite Voucher Program.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 7, 2008.

TRD-200801811

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: May 18, 2008

For further information, please call: (512) 438-3734

Chapter 85. IMPLEMENTATION OF THE OLDER AMERICANS ACT

The Health and Human Services Commission (HHSC) proposes, on behalf of the Department of Aging and Disability Services (DADS), new Chapter 85, Implementation of the Older Americans Act, consisting of Subchapter A, §85.2, concerning definitions; Subchapter C, §§85.201, 85.202, and 85.208, concerning AAA administrative requirements; Subchapter D, §§85.301 - 85.310, concerning Older Americans Act services; and Subchapter E, §85.401, concerning Long-Term Care Ombudsman Program.

BACKGROUND AND PURPOSE

The proposed rules in new Chapter 85 describe the services provided by and the administrative and fiscal responsibilities of the 28 area agencies on aging (AAAs) in the state of Texas. A AAA is a public or private nonprofit agency or organization, designated by DADS in accordance with the Older Americans Act, §305(a)(2)(A), that develops and implements an area plan to provide services to program participants.

The new rules are proposed in order to rewrite and reorganize DADS rules so that they are easier for AAAs and the public to use and understand. The proposal will reorganize current AAA requirements into new subchapters, clarify and update rule language to reflect current agency practice, correct rule cross-references, and ensure that the rules that govern AAAs are more consistent with other DADS rules, including those rules that relate to services similar to those provided by a AAA. In particular, the new rules contain provisions that permit a AAA to provide homemaker services as a consumer directed service, a practice already in place.

Further, the new rules are proposed to comply with changes to the Older Americans Act of 1965, as amended in 2006. Specifically, the new rules permit a grandparent, step-grandparent, or relative by blood, marriage, or adoption who is 55 years of age or older and caring for a child or an individual with a disability to receive respite voucher services if other eligibility criteria are met. The previous federal law required the grandparent, step-grandparent, or relative to be 60 years of age or older and be caring for a child 18 years of age or younger. The rules also contain a reference to the new targeting requirement in the Older Americans Act for a AAA to give priority to older individuals at risk for institutional placement. In addition, the new rules more accurately reflect the requirements of the Ombudsman Program set forth in §711 and §712 of the Older Americans Act.

In a related proposal, HHSC, on behalf of DADS, proposes to repeal obsolete and duplicative rule language in Chapters 83, 84, and 100 of this title elsewhere in this issue of the Texas Register .

SECTION-BY-SECTION SUMMARY

Proposed new §85.2 contains the definitions for the chapter; the definitions were previously located in §84.2.

Proposed new §85.201 describes the administrative responsibilities of a AAA, including the requirements related to the structure of a AAA; the procedures for a AAA to review a subcontractor's programs; and the requirements to report abuse, neglect, or exploitation of a program participant.

Proposed new §85.202 describes the fiscal responsibilities of a AAA, including the responsibilities related to the purchase of goods and services, and the requirements for audits, Indirect Cost Allocation Plans, and service and administrative match.

Proposed new §85.208 describes the requirements for the provision of data management.

Proposed new §85.301 describes the requirements for the provision of transportation services, including requirements related to program participant eligibility and service provider operations.

Proposed new §85.302 establishes the requirements for the provision of nutrition services, including requirements related to program participant eligibility, facilities and food services, meal costs, menus, delivery of home-delivered meals, training of service provider staff persons, and political activity at congregate meal sites.

Proposed new §85.303 describes the requirements for the provision of participant assessment services, including requirements related to the provision of services, conducting an assessment and reassessment, and authorization of services.

Proposed new §85.304 describes the requirements for the provision of homemaker services, including a description of the types of activities that qualify as homemaker services, prohibited activities, and staffing qualifications. In addition, this new section permits a AAA to provide homemaker services as an agency-managed service or a consumer-directed service, or as both.

Proposed new §85.305 describes the requirements for the provision of personal assistance services, including a description of the types of activities that qualify as personal assistance services and prohibited activities.

Proposed new §85.306 describes the requirements for the provision of adult day services, and states that adult day services consist of nursing services, physical rehabilitative services, nutrition services, socialization activities, and transportation services.

Proposed new §85.307 describes the requirements for emergency response services, including that a licensed vendor must provide such services, and includes requirements relating to program participant eligibility, service activities, prerequisites to service, system checks, and equipment maintenance.

Proposed new §85.308 describes the requirements for residential repair services, states that a AAA must enter into a vendor agreement for the provision of residential repair services, and includes a description of activities that qualify as residential repair services.

Proposed new §85.309 describes the requirements for senior centers, community facilities used for the organization and provision of a broad spectrum of services for persons 60 years of age or older, and includes requirements related to operation of a senior center, political activity and religious activity at a center, change in ownership, and insurance requirements.

Proposed new §85.310 describes the requirements for respite voucher services, including requirements relating to program participant eligibility, targeting, application process, and qualifications of a respite provider.

Proposed new §85.401 describes the requirements for the Long-Term Care Ombudsman Program, including requirements related to qualifications of a certified ombudsman, access to residents and records, disclosure of information, volunteer program management, and specific services provided through the program.

FISCAL NOTE

Gordon Taylor, DADS Chief Financial Officer, has determined that, for the first five years the proposed new sections are in effect, enforcing or administering the new sections does not have foreseeable implications relating to costs or revenues of state or local governments.

SMALL BUSINESS AND MICRO-BUSINESS IMPACT ANALYSIS

DADS has determined that the proposed new sections will not have an adverse economic effect on small businesses or micro-businesses, because the rules apply only to AAAs, which are public or private nonprofit agencies or organizations. A small or micro-business is defined, in part, as a legal entity that is formed for the purpose of making a profit.

PUBLIC BENEFIT AND COSTS

Gary Jessee, DADS Assistant Commissioner for Access and Intake, has determined that, for each year of the first five years the new sections are in effect, the public benefit expected as a result of enforcing the new sections is DADS' rules will be compliant with the Older Americans Act of 1965, as amended in 2006. In addition, the rewritten AAA rules will be easier for AAAs and the public to use and understand.

Mr. Jessee anticipates that there will not be an economic cost to persons who are required to comply with the new sections. The new sections will not affect a local economy.

TAKINGS IMPACT ASSESSMENT

PUBLIC COMMENT

Subchapter A. DEFINITIONS

40 TAC §85.2

STATUTORY AUTHORITY

The new section implements Texas Government Code, §531.0055, and Texas Human Resources Code, §161.021.

§85.2.Definitions.

The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise.

(1) AAA--An area agency on aging (commonly referred to as a "triple A"). A public or private nonprofit agency or organization, designated by DADS in accordance with the Older Americans Act, §305(a)(2)(A), that develops and implements an area plan.

(2) Adult--A person who is 18 years of age or older.

(3) Alarm call--A signal transmitted from an electronic monitoring system to a service provider's response center indicating a program participant needs immediate assistance.

(4) Area plan--A plan developed and implemented by a AAA for its planning and service area that establishes a comprehensive and coordinated system of services in accordance with the Older Americans Act, §306(a).

(5) Business day--Any day except a Saturday, Sunday, or legal holiday listed in Texas Government Code, §662.021.

(6) Certified ombudsman--A certified staff ombudsman or a certified volunteer ombudsman.

(7) Certified staff ombudsman--A person who:

(A) meets the qualifications described in §85.401(g)(1) of this chapter (relating to Long-Term Care Ombudsman Program);

(B) is employed by or is contracting with a AAA or nonprofit organization designated in accordance with §85.401(b) of this chapter; and

(C) performs activities for the AAA or designated nonprofit organization to implement the Long- Term Care Ombudsman Program.

(8) Certified volunteer ombudsman--A person who:

(A) meets the qualifications described in §85.401(g)(1) of this chapter;

(B) is not employed by or contracting with a AAA or nonprofit organization designated in accordance with §85.401(b) of this chapter; and

(C) voluntarily performs activities for the AAA or designated nonprofit organization to implement the Long-Term Care Ombudsman Program.

(9) Contract--A binding agreement between a AAA and a subcontractor obligating the subcontractor to take responsibility for the complete implementation and administration of a service described in this chapter, including determining which individuals are eligible to receive such a service and providing the service to such individuals.

(10) Child--A person who is under 18 years of age.

(11) Cost reimbursement--Payment of actual costs incurred for goods or services.

(12) DADS--The Department of Aging and Disability Services. DADS is the sole state agency (also referred to as the "state unit on aging") designated in accordance with the Older Americans Act, §305(a)(1).

(13) Day--A calendar day, unless otherwise specified.

(14) Direct purchase--When items or services are obtained from a vendor.

(15) Disability (except when such term is used in the phrase "severe disability")--A disability attributable to mental or physical impairment, or a combination of mental and physical impairments, that results in substantial functional limitations in one or more of the following areas of major life activity:

(A) self-care;

(B) receptive and expressive language;

(D) mobility;

(E) self-direction;

(F) capacity for independent living;

(G) economic self-sufficiency;

(H) cognitive functioning; and

(I) emotional adjustment.

(16) Electric monitoring system--The equipment used to allow a program participant to call an ERS vendor for assistance in the event of an emergency. Such equipment includes an alert bracelet or necklace that can be activated by the program participant and the signal box to receive the call from the program participant.

(17) ERS--Emergency response services.

(18) Fixed unit rate--A negotiated cost for a service, cost per program participant, or cost per event set forth in a contract or vendor agreement, that remains the same until the contract or vendor agreement is renegotiated, regardless of the amount of services provided, the number of program participants served, or the number of events that occur.

(19) Friendly visitor--A volunteer for a AAA or nonprofit organization designated in accordance with §85.401(b) of this chapter who:

(A) is not a certified ombudsman or ombudsman intern;

(B) meets the qualifications described in §85.401(g)(2) of this chapter; and

(C) performs activities to further the mission of the Long-Term Care Ombudsman Program such as visiting residents and coordinating social activities.

(20) Legally authorized representative--A person authorized by law to act on behalf of a person with regard to a matter described in this chapter, and may include:

(A) a parent, guardian, or managing conservator of a minor;

(B) the guardian of an adult;

(C) an agent to whom authority to make health care decisions is delegated under a medical power of attorney in accordance with state law; or

(D) the representative of a deceased person.

(21) Local ombudsman entity--A AAA or other entity designated by DADS to provide services in the Long-Term Care Ombudsman Program in accordance with the Older Americans Act, §712(a)(5)(A).

(22) LTC facility--Long-term care facility. A nursing facility licensed or required to be licensed in accordance with Texas Health and Safety Code, Chapter 242, and Chapter 19 of this title (relating to Nursing Facility Requirements for Licensure and Medicaid Certification) or an assisted living facility licensed or required to be licensed in accordance with Texas Health and Safety Code, Chapter 247, and Chapter 92 of this title (relating to Licensing Standards for Assisted Living Facilities).

(23) Means testing--Using a person's income and resource data.

(24) Office--The Office of the State Long-Term Care Ombudsman. A division of DADS established to oversee the statewide implementation of the Long-Term Care Ombudsman Program.

(25) Older Americans Act--A federal law enacted to establish and fund a comprehensive service system for persons 60 years of age or older.

(26) Ombudsman intern--A person who is being trained to be a certified volunteer ombudsman in accordance with DADS Ombudsman Certification Training Manual but has not been approved by the Office to be a certified volunteer ombudsman.

(27) Planning and service area--A geographical area, consisting of one or more counties, for which DADS designates one AAA to develop and implement an area plan.

(28) Program participant--A person receiving a service described in this chapter.

(29) Resident--A person who resides in an LTC facility.

(30) Responder--A person identified by the program participant or designated by the AAA who will respond to an alarm call by a program participant.

(31) Service provider--A subcontractor or a vendor.

(32) Severe disability--A severe, chronic disability attributable to mental or physical impairment, or a combination of mental and physical impairments, that:

(A) is likely to continue indefinitely; and

(B) results in substantial functional limitation in three or more of the major life activities specified in paragraph (15)(A) - (I) of this section.

(33) Staff person--Personnel, including a full-time and part-time employee, contractor, and intern, but excluding a volunteer.

(34) State Long-Term Care Ombudsman--The person designated by DADS to be the administrator of the Office.

(35) Subcontractor--The party with whom a AAA enters into a contract.

(36) System check--Activating the call button of an electronic monitoring system to test the system.

(37) Variable unit rate--A negotiated cost for a service, cost per program participant, or cost per event set forth in a contract or vendor agreement that may change depending on the criteria and conditions set forth in the contract or vendor agreement.

(38) Vendor agreement--A binding agreement between a AAA and a vendor obligating the vendor to provide goods or services to individuals determined eligible by the AAA for such goods or services as part of the AAA's implementation and administration of a service described in this chapter.

(39) Vendor--The party with whom a AAA enters into a vendor agreement.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 7, 2008.

TRD-200801806

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: May 18, 2008

For further information, please call: (512) 438-3734

Subchapter C. AAA ADMINISTRATIVE REQUIREMENTS

40 TAC §§85.201, 85.202, 85.208

STATUTORY AUTHORITY

The new sections implement Texas Government Code, §531.0055, and Texas Human Resources Code, §161.021.

§85.201.AAA Administrative Responsibilities.

(a) Purpose. This section:

(1) establishes the responsibilities of a AAA in developing and maintaining an organized and efficient system of administration that demonstrates accountability and compliance with state and federal law and with all terms and conditions of the contract it enters into with DADS; and

(2) applies to a service under the Older Americans Act provided to a program participant that is funded, in whole or in part, by DADS.

(b) Structure of a AAA.

(1) A AAA must:

(A) reflect its organizational structure through job descriptions, staffing plans, area plans, and organizational charts that demonstrate its ability to effectively administer Older Americans Act programs and other programs funded by DADS;

(B) identify a person as a director or manager of the AAA;

(C) if a director or manager position becomes vacant, ensure that a qualified staff person is assigned to perform the duties of the director or manager until the position is filled;

(D) budget all positions based on the projected percentage of time to be spent performing the duties of an identified service;

(E) maintain documentation to support the actual time spent performing the duties of an identified service; and

(F) comply with the Service Definitions for Area Agencies on Aging available at www.dads.state.tx.us for all services funded by DADS.

(2) In accordance with the Older Americans Act, §306(a)(6)(D), a AAA must establish an advisory council that:

(A) continually advises the AAA on all matters relating to the development and administration of and operations conducted under the area plan; and

(B) consists of persons who are 60 years of age or older (including minority persons and persons residing in rural areas) who are program participants or who are eligible to participate in programs under the Older Americans Act, family caregivers of such individuals, representatives of persons 60 years of age or older, service providers, representatives of the business community, local elected officials, providers of veterans' health care, if appropriate, and the general public.

(3) A AAA must ensure that its board members, employees, advisory committee members, and volunteers are not subject to a conflict of interest, as described in subparagraph (A) of this paragraph, in fact or perception, and notify DADS in accordance with DADS Program Instruction AAA - PI 500 Conflicts of Interest , when potential conflicts of interest occur.

(A) A conflict of interest includes:

(i) having a substantial financial interest, directly or indirectly, in the profits of any entity from which services or goods are contracted or otherwise procured by the AAA; and

(ii) deriving a personal profit, directly or indirectly, from any entity that would conflict in any manner or degree with the performance of responsibilities of the board member, employee, advisory committee member, or volunteer.

(B) A AAA must comply with §85.401(i) of this chapter (relating to Long-Term Care Ombudsman Program).

(C) A AAA must include a requirement in a request for proposal (RFP) for services for older persons and requests for vendor enrollment that any potential conflicts of interest be identified in the RFP or vendor enrollment response. The notification of potential conflicts of interest must include:

(i) the person and the nature for which a potential conflict of interest exists; and

(ii) the relationship to any current or former board member, current or former aging advisory committee member, or current or former employee.

(c) Compliance with laws, rules, regulations, and other requirements. A AAA must comply with applicable federal and state laws, rules, and regulations, standards, and instructions, including:

(1) the Older Americans Act of 1965, as authorized in 2006;

(2) state laws regarding the financial operation of a AAA;

(3) 45 Code of Federal Regulations (CFR) §1321.67;

(4) 45 CFR §92.25;

(5) Uniform Grant Management Standards;

(6) Office of Management and Budget Circulars; and

(7) DADS Program Instructions.

(d) Accountability.

(1) A AAA must:

(A) maintain financial and programmatic systems capable of producing expenditure reports, cost center analyses, budgets, and state and federal reports;

(B) develop and implement written policies and procedures to back up automated information systems and continually update virus protection software to prevent the loss or corruption of program and financial data;

(C) meet programmatic and fiscal performance targets as outlined in the approved budget, as amended, within a five percent variance; and

(D) submit fiscal and programmatic reports required by DADS in a timely, complete, and accurate manner.

(2) A request for an extension to submit fiscal and programmatic reports must be submitted in writing to the AAA Help Desk at DADS on or before the date and time the reports are due.

(3) DADS may grant up to two requests for an extension per report per federal fiscal year. A AAA may be granted no more than a total of eight extensions per federal fiscal year. The length of an extension is negotiated, as much as possible, but DADS makes the final decision regarding extensions.

(4) A AAA must comply with the terms of all applicable interagency agreements, including those agreements legislatively mandated or to which DADS and the AAA are parties.

(e) Review of subcontractors.

(1) A AAA must review a subcontractor's programs and fiscal activities on a regular and systematic basis. Reviews must be conducted through a desk audit or by on-site review. A AAA must conduct a risk assessment annually to determine the necessity of an on-site review if it conducts an on-site review less than annually for all subcontractors.

(2) A AAA must conduct an annual customer satisfaction survey of program participants utilizing the process furnished by DADS.

(3) A AAA must comply with the requirements specified in §81.13 of this title (relating to Compliance with Contractor Responsibilities, Rewards and Sanctions) when imposing sanctions against a subcontractor for noncompliance with a contract.

(4) A AAA may develop requirements for a subcontractor in addition to those listed in paragraphs (1) - (3) of this subsection.

(f) Targeting. A AAA must ensure, in providing a service described in Subchapter D of this chapter (relating to Older Americans Act Services), that priority is given to persons:

(1) described in the Older Americans Act, §306(a)(4)(B)(i); and

(2) who have an unmet need for such a service.

(g) Means testing. A AAA must not use means testing for purposes of determining a person's eligibility to receive services, in accordance with the Older Americans Act, §315(b)(3).

(h) Confidentiality.

(1) A AAA must comply with all applicable state and federal laws, rules, and regulations related to the confidentiality of program participant information, including 45 CFR §1321.51, 45 CFR Part 164, and §85.401(k) of this chapter.

(2) A AAA must:

(A) keep the records of a program participant in a secure, locked facility when not in use by authorized personnel; and

(B) limit access to program participant records maintained in computer information systems through acceptable computer security practices, including password protection.

(i) Satisfaction with services. A AAA must, at least annually, give a program participant an opportunity to express his or her level of satisfaction with the services provided.

(j) Grievances. A AAA must:

(1) implement grievance procedures in accordance with §81.19 of this title (relating to Grievance Procedures for Participants in Older Americans Act Programs); and

(2) inform a program participant of the grievance procedures.

(k) Service participation. A AAA must not require a program participant to be a member in a specific private organization, group, association, or fraternal organization as a condition of receiving services, which includes permitting services to be provided in an organization's facility to which admission is limited to members of the organization.

(l) Contributions. A AAA:

(1) must provide a program participant with an opportunity to contribute toward the cost of the services the program participant receives;

(2) must not require a program participant to contribute toward the cost of services the program participant receives;

(3) may provide a program participant with a contribution schedule that suggests a contribution amount based on the income ranges of the program participant population, but may not determine a program participant's income using a means test;

(4) must protect the privacy of a program participant with respect to the program participant's contribution;

(5) must establish appropriate procedures to safeguard and account for all contributions made; and

(6) must use all program participant contributions to support or expand services for which the program participant contributed, in accordance with applicable state and federal laws, rules, and regulations.

(m) Facilities. A AAA must ensure that facilities in which services are provided are in compliance with applicable local building codes and ordinances and applicable state and federal laws, rules, and regulations.

(n) Tobacco policy. A AAA must prohibit the use of tobacco during the hours of operation of and in areas designated for Older Americans Act programs.

(o) Insurance. A AAA must maintain insurance that protects the health and safety of its employees and of program participants and complies with all applicable state and federal laws, rules, and regulations.

(p) Records. A AAA:

(1) must develop, maintain, and retain records in accordance with the Uniform Grant Management Standards, Subpart C;

(2) must establish written procedures to adequately ensure proper development, maintenance and retention of all financial records, supporting documents, statistical records and all other records relating to its performance;

(3) must maintain all records for a minimum of five years following the end of the federal fiscal year to which the record pertains and until any pending litigation, claim or audit findings, issuance or proposed disallowed costs or other disputes have been resolved;

(4) must maintain all records at a designated central location regardless of whether the AAA has one or multiple locations; and

(5) must give DADS, the Comptroller General of the United States, and the State of Texas, through any authorized representatives, access to its records, including:

(A) financial records such as contracts, general ledgers, invoices, accounts payable, and accounts receivable;

(B) program participant records unless specifically prohibited by law;

(D) any other records not directly related to the AAA if the purpose of such access is to review charges to any indirect costs pool.

(q) Service provider compliance. A AAA must ensure that a service provider complies with requirements described in subsections (f) - (p) of this section.

(r) Contingency plan. A AAA must have a written plan ensuring continuity of services to a program participant in the event a service provider is unable to provide a service.

(s) Designation of focal points. A AAA must comply with the Older Americans Act, §306(a)(3)(A) and (B) regarding designation of focal points.

(t) Visibility.

(1) A AAA must use the logo designed by DADS (illustrated in paragraph (2) of this subsection) to ensure a uniform, statewide symbol for AAAs.

(2) A AAA must use the logo on all printed material it develops.

Figure: 40 TAC §85.201(t)(2)

(u) AAA contact information.

(1) A AAA must publicize its contact information through a variety of media such as telephone directories, resource directories, the Internet, and other outreach tools for persons who reside in any geographical area that lies in whole or in part in the planning and service area served by the AAA.

(2) Contact information must begin with the words "area agency on aging" and must include the host agency, as applicable. A AAA must ensure that a telephone call to the AAA is answered "area agency on aging."

(v) Phrase for printed material. A AAA must cite DADS as the primary funding source using the phrase "Funded by the Department of Aging and Disability Services" or "Funded in part by Department of Aging and Disability Services" on all printed material.

(w) Identification of a AAA facility. A AAA must prominently display a sign outside its primary place of business that:

(1) adheres to local ordinances concerning signs; and

(2) conforms to the requirements in subsection (t) of this section.

(x) Emergency management.

(1) When a disaster occurs, a AAA must notify DADS of its need to provide for emergency management activities, provide information to DADS regarding the impact of the disaster on the older population in its service area, provide emergency management services in accordance with current Administration on Aging disaster relief guidelines, and collect pertinent data necessary to submit reimbursement requests for disaster services.

(2) A AAA must consult with the appropriate agencies that have an interest or role in meeting the needs of persons 60 years of age or older to plan for the occurrence and aftermath of natural, civil defense, or man-made disasters. To accomplish this, a AAA must:

(A) develop an emergency disaster plan in accordance DADS requirements;

(B) require by contract or vendor agreement that a service provider develop plans for emergency management; and

(C) provide technical assistance as necessary to service provider staff persons regarding emergency management activities.

(y) Reporting abuse, neglect, or exploitation.

(1) A AAA must instruct its staff persons and representatives to report allegations of abuse, neglect, or exploitation of a program participant to the Department of Family and Protective Services (DFPS) in accordance with Texas Human Resources Code, Chapter 48. A report must be made by calling 1-800-252-5400 or by following the instructions available at www.txabusehotline.org.

(2) The AAA must take appropriate corrective action if:

(A) a staff person does not report an allegation of abuse, neglect, or exploitation of a program participant in accordance with Texas Human Resources Code, Chapter 48; or

(B) DFPS confirms abuse, neglect, or exploitation of a program participant by a staff person of the AAA.

(z) Emergency services. A AAA must instruct all of its staff persons to call 911 or another local emergency hotline for fire-fighting, police, medical, or other emergency services, as appropriate, in the event of an emergency involving a program participant.

(aa) Reporting waste, abuse, or fraud.

(1) A AAA must instruct its staff persons and representatives to report allegations of waste, abuse, or fraud, as defined in 1 TAC §371.1601 (relating to Definitions), regarding a service described in subsection (a)(2) of this section. A report must be made to:

(A) the Texas Health and Human Services Commission (HHSC), Office of the Inspector General, in accordance with the HHSC instructions available at www.hhs.state.tx.us; and

(B) DADS by calling 1-800-436-6184.

(2) The Office of the Inspector General investigates reports of waste, abuse, or fraud in accordance with 1 TAC, Chapter 371, Subchapter G.

(bb) Ethical conduct.

(1) A AAA must ensure that its staff persons and representatives conduct themselves in an ethical manner.

(2) A AAA staff person may not:

(A) engage in inappropriate treatment of a program participant or person seeking services;

(B) withhold or suppress a complaint or report against the AAA or DADS;

(D) obtain a certification by fraud or deceit; or

(E) knowingly participate in the preparation of false or misleading program participant information.

(3) A AAA must instruct all staff persons and representatives to report allegations of unethical conduct, as described in paragraph (2) of this subsection, to DADS' AAA Section Manager.

(cc) Service provider compliance. A AAA must ensure that a service provider complies with the requirements described in subsections (y), (z), (aa)(1)(A), and (bb) of this section.

(dd) Complaints. A AAA must ensure that a service provider:

(1) on or before initiation of a service described in Subchapter D of this chapter, informs a program participant, in writing, of the procedure by which the program participant may file a complaint regarding such service;

(2) obtains and maintains documentation of receipt of the complaint procedure by the program participant;

(3) date stamps receipt of a written complaint;

(4) documents receipt of an oral complaint, with the date of receipt and a narrative of the allegations;

(5) investigates each complaint and responds, in writing, to the program participant regarding the results of the investigation in a timely manner; and

(6) maintains a written log of complaints filed by program participants that is accessible to the AAA and contains the following information:

(A) the date of the service provider's receipt of the complaint;

(B) the name of the person who filed the complaint;

(D) the name of the staff person who conducted the investigation of the complaint;

(E) the names of persons who were contacted during the investigation of the complaint;

(F) the outcome of the complaint; and

(G) the date final action was taken by the service provider in response to the complaint.

§85.202.AAA Fiscal Responsibilities.

(a) Purpose. This section establishes the fiscal responsibilities of a AAA, including responsibilities related to purchases of goods and services, audits, costs allocation plans, and service and administrative match.

(b) Purchases of goods and services.

(1) A AAA is permitted to enter into contracts and vendor agreements for the purchase of goods and services.

(2) Except as provided in paragraph (3) of this subsection, a AAA must comply with competitive bidding procedures in selecting a subcontractor through the use of formal bidding, informal bidding, or competitive proposals, as appropriate. A AAA must document its compliance with the competitive bidding procedures.

(3) A AAA may select a subcontractor using sole source procurement in accordance with 45 Code of Federal Regulations (CFR) §92.36(d)(4) if the award of a contract is not feasible using competitive bidding.

(4) When purchasing goods and services from a service provider, a AAA must use one of the following cost determination methodologies in accordance with DADS requirements:

(A) cost reimbursement;

(B) fixed unit rate; or

(5) A AAA may make a direct purchase of a service for a program participant on an individual basis in accordance with §83.19 of this title (relating to Direct Purchase of Services (DPS)).

(6) A AAA must reference in a contract and vendor agreement the state rules relating to the services being provided by the subcontractor or the vendor.

(7) A AAA must include in a contract a requirement that subcontractors have an accounting system that identifies all costs for each specific service being purchased or provided and that complies with 45 CFR, Part 1321.

(8) All purchases of services, materials, equipment, and goods made by a AAA with grant funds must meet the criteria of allowability as set forth in, as applicable, the Uniform Grant Management Standards, as adopted by the Governor's Office of Budget and Planning, including the Office of Management and Budget (OMB) Circulars A-87 and A-122 and 45 CFR, Chapter 92.

(9) All purchases made by a AAA must be evidenced by receipt of the service or merchandise or issuance of a purchase contract, voucher, or other legal document that binds both parties to the transaction, no later than the last day of the grant period for which funds have been budgeted and encumbered.

(10) If the service or merchandise has not been received by the last day of the grant period as described in paragraph (9) of this subsection, a AAA must have received the service or merchandise and made payment for such before the due date of the closeout report for the grant period for which funds have been budgeted and encumbered.

(11) A AAA must ensure that a service provider complies with the requirements described in paragraphs (8) - (10) of this subsection.

(1) A AAA must ensure that an independent certified public accounting firm performs an audit in accordance with:

(A) the standards for financial and compliance audits contained in the Standards for Audit of Governmental Organizations, Programs, Activities, and Functions, issued by the U.S. General Accounting Office;

(B) the Single Audit Act;

(D) the Uniform Grant Management Standards; and

(E) generally accepted accounting principles.

(2) A AAA must provide DADS and the Office of Inspector General of the Health and Human Services Commission with a report of the audit conducted in accordance with paragraph (1) of this subsection within 30 days following receipt of such report or within nine months following the end of the AAA's fiscal year that the audit covers, whichever is earlier.

(3) A AAA must ensure that an audit of a subcontractor is performed by an independent certified public accounting firm in accordance with OMB Circular A-133 and review the report of the audit performed.

(d) Indirect Cost Allocation Plan.

(1) To demonstrate compliance with the Uniform Grant Management Standards, a AAA for which DADS is not the designated state coordinating agency must submit to DADS an Indirect Cost Allocation Plan approval letter from the state coordinating agency or federal cognizant agency.

(2) A AAA for which DADS is the designated state coordinating agency must submit, in accordance with the Uniform Grant Management Standards and DADS requirements, an Indirect Cost Allocation Plan to DADS for its approval.

(e) Unallowable costs.

(1) Unallowable costs made by a AAA, as defined in OMB Circulars A-87 and A-122, and other applicable state and federal laws, rules, and regulations, may be identified:

(A) by the public accounting firm that performed an audit of the AAA in accordance with subsection (c)(1) of this section; or

(B) by DADS:

(i) as the result of monitoring of the AAA or because of information contained in the audit report described in subsection (c)(2) of this section; or

(ii) if a AAA fails to obtain an audit of a subcontractor in accordance with subsection (c)(3) of this section.

(2) The AAA is liable to DADS for any unallowable costs identified in accordance with paragraph (1) of this subsection.

(3) If DADS determines a AAA has unallowable costs, DADS sends the AAA a Letter of Notification of Disallowance with Intent to Recover Costs by certified or registered mail, requesting the AAA to resolve all findings and unallowable costs within six months of receipt of the letter, in accordance with OMB Circular A-133, unless an extension is granted by DADS.

(f) Refunding of payments.

(1) A AAA may be required to refund to DADS:

(A) unallowable costs identified in accordance with subsection (e) of this section; or

(B) amounts paid to the AAA in excess of those earned by the AAA.

(2) Refunds may be made by the AAA by making payment to DADS or by DADS withholding payments to be made to the AAA.

(3) A AAA that has made a refund to DADS in accordance with paragraph (1) of this subsection waives all rights to such funds and must not receive any of the funds as part of a future allocation.

(g) Capital expenditures. A AAA must comply with and ensure that a service provider complies with capital expenditure guidelines set forth in the Uniform Grant Management Standards, OMB Circulars A-87 and A-122, and requirements developed by DADS, as applicable.

(h) Budget submissions.

(1) A AAA must submit to DADS, on an annual basis and in accordance with DADS requirements, a budget that supports an approved area plan.

(2) A AAA may submit an amended budget that supports an approved area plan in accordance with DADS requirements.

(i) Service and administrative match.

(1) A AAA must;

(A) provide funds and in-kind contributions, in accordance with the Older Americans Act, §304, to match the expenditures of federal funds made to DADS for the cost of providing goods and services; and

(B) ensure that an appropriate portion of funds or in-kind contributions is generated to match the federal fund expenditure based on the cost of services it provides.

(2) The valuation of services or goods as reported as in-kind must be based on fair market value.

(3) A AAA may use state general revenue to match funds appropriated under Title III, Part E of the Older Americans Act.

(4) A AAA must not use state general revenue to match administrative funds.

(j) Program income. A AAA must administer and ensure that a service provider administers program income as described in DADS Program Instruction AAA - PI-305 Administering Program Income .

(k) Adequate proportion.

(1) In accordance with the Older Americans Act, §306(a)(2), a AAA must expend funds appropriated under Title III, Part B of the Older Americans Act to meet an adequate proportion requirement, as determined by DADS, for:

(A) access services;

(B) in-home services; and

(2) A AAA may request, in writing, by September 30 of each year, that DADS waive or revise the adequate proportion requirement for any of the categories of services listed in paragraph (1) of this subsection for the next federal fiscal year, in accordance with the Older Americans Act, §306(c).

(A) The AAA must demonstrate to DADS there are sufficient services available in the requested category to meet the need for such services.

(B) A AAA must submit a separate request for each category of service for which a waiver is sought.

(3) A AAA must comply with DADS instructions regarding adequate expenditures for the Medication Management Program funds appropriated under the Older Americans Act, Title III, Part D.

(l) Caregiver support program limitation. In accordance with the Older Americans Act, §373(g)(2)(C), a AAA may not use more than 10 percent of the funds appropriated under Title III, Part E of the Older Americans Act for the Caregiver Support Program for program participants 55 years of age and older who are providing primary care for children 18 years of age or younger.

(m) Administrative services. A AAA that elects to utilize state general revenue for administrative services may not supplant existing federal funds appropriated for such services.

§85.208.Data Management.

(a) Purpose. This section establishes the requirements for data management, a service provided under the Older Americans Act and funded, in whole or in part, by DADS.

(b) Service provider responsibilities. A AAA must perform or ensure that a service provider performs the data management activities described in DADS Program Instruction AAA - PI -312 Data Management Guide.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 7, 2008.

TRD-200801807

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: May 18, 2008

For further information, please call: (512) 438-3734

Subchapter D. OLDER AMERICANS ACT SERVICES

40 TAC §§85.301 - 85.310

STATUTORY AUTHORITY

The new sections implement Texas Government Code, §531.0055, and Texas Human Resources Code, §161.021.

§85.301.Transportation Services.

(a) Purpose. This section establishes the requirements for transportation services, a service provided under the Older Americans Act and funded, in whole or in part, by DADS.

(b) Eligibility. A AAA must ensure a program participant who receives transportation services is:

(1) 60 years of age and older; or

(2) an informal caregiver authorized to receive transportation services in accordance with the Older Americans Act, §373(b)(5).

(1) A AAA must ensure a service provider provides transportation services that:

(A) are for nonemergency purposes;

(B) consist of transporting a program participant to and from activities as specified in the contract or vendor agreement; and

(C) are, as defined in the Service Definitions for Area Agencies on Aging available at www.dads.state.tx.us, "demand response," "fixed route," or a combination of both.

(2) A AAA must ensure that in providing transportation services, a service provider:

(A) complies with applicable federal and state laws, rules, and regulations including the Americans with Disabilities Act;

(B) employs or contracts with staff persons who are trained and have current certification in, as applicable, scheduling and dispatching, defensive driving, passenger handling and assistance, first aid and cardiopulmonary resuscitation and operating an automatic external defibrillator, if one is available; and

§85.302.Nutrition Services.

(a) Purpose. This section establishes the requirements for nutrition services, a service provided under the Older Americans Act and funded, in whole or in part, by DADS.

(b) Eligibility.

(1) A AAA must ensure that a program participant who receives a congregate meal:

(A) is 60 years of age or older;

(B) meets the eligibility criteria to receive a congregate meal as described in DADS Program Instruction AAA - PI 307 Nutrition Services Eligibility Requirements for Individuals Under Age 60 and Caregivers; and

(C) before service initiation and at least every 12 months thereafter, has had a Nutritional Risk Assessment completed by a service provider or a staff person of the AAA.

(2) A AAA must ensure that a program participant who receives a home-delivered meal:

(A) is 60 years of age or older;

(B) meets the eligibility criteria to receive a home delivered meal as described in DADS Program Instruction AAA - PI 307 Nutrition Services Eligibility Requirements for Individuals Under Age 60 and Caregivers; and

(i) has had a Nutritional Risk Assessment completed by a service provider or staff person of the AAA; and

(ii) has had a functional assessment completed by a service provider or staff person of the AAA using the data elements contained in DADS' Form 2060, available at www.dads.state.tx.us, and based on the results of such assessment, meets the minimum requirements in accordance with DADS instructions.

(1) complies with 25 TAC, Chapter 229 (relating to Food and Drug) in the preparation, handling, and provision of food; and

(2) provides the AAA a copy of all results from inspections required by state law or rule.

(d) Nutrition Services Incentive Program compliance. A AAA must ensure that a service provider:

(1) complies with the Older Americans Act, §311, relating to the Nutrition Services Incentive Program; and

(2) includes only eligible meals (that is, meals delivered to program participants who meet the criteria described in subsection (b) of this section) in reports related to the Nutrition Services Incentive Program.

(e) Meal costs. A AAA must ensure that a service provider:

(1) posts the cost of a meal for purposes of cost recovery as described in paragraph (2) of this subsection;

(2) recovers, at a minimum, the cost of a meal that is not an eligible meal as defined in DADS Program Instruction AAA - PI 307 Nutrition Services Eligibility Requirements for Individuals Under Age 60 and Caregiver ; and

(3) keeps payments for ineligible meals separate from contributions from program participants.

(f) Service days. A AAA must ensure that a service provider:

(1) provides meals in accordance with the Older Americans Act, §331 and §336; and

(2) obtains, in accordance with DADS Program Instruction AAA-PI 300 Older Americans Act Nutrition Waiver Requests , prior approval from the AAA and DADS if service frequency is less than five days per week.

(g) Meal requirements. A AAA must ensure that a service provider complies with the Older Americans Act, §339(2)(A), relating to compliance with the current Dietary Guidelines for Americans and Dietary Reference Intakes.

(h) Menus.

(1) A AAA must ensure that, for each meal included on the menu and listed allowable substitutions, a service provider obtains:

(A) approval, in writing, from a dietitian consultant that the meal meets one-third of the recommended dietary allowance as referenced in the Dietary Reference Intakes for a person 60 years of age or older and the current Dietary Guidelines for Americans as required by the Older Americans Act, §339(2)(A); and

(B) the written approval before the date the meal is served.

(2) The dietitian consultant required by paragraph (1) of this subsection must:

(A) be a licensed dietitian in accordance with Texas Occupations Code, Chapter 701;

(B) be a registered dietitian with the Commission on Dietetic Registration/American Dietetic Association; or

(3) A AAA must ensure that a service provider's planned menus provide for variety in flavor, consistency, texture, and temperature.

(i) Standard recipes. A AAA must ensure that a service provider plans and manages food production through the use of standardized recipes adjusted to yield the number of servings needed and to provide for consistency in quality and documented nutrient content of food prepared.

(j) Modified diets.

(1) A AAA must permit a service provider to deviate from the standard menu pattern for therapeutic medical diets as required by the participant's medical condition as documented by a physician.

(2) A AAA may allow a service provider to provide therapeutic medical diets based on the service provider's ability to do so.

(k) Emergency or inclement weather or service frequency less than five days a week. If a service provider delivers frozen, chilled, or shelf-stable meals for emergency or inclement weather situations, or if the service provider's service frequency is less than five days per week, a AAA must ensure that the service provider:

(1) delivers the meals only if the program participant has sanitary and safe conditions for storing, thawing, and reheating the meals;

(2) determines the meals can be safely handled by the program participant or another available person if the participant is unable to safely handle the meal; and

(3) complies with the DADS Program Instruction AAA - PI 300 Older Americans Act Nutrition Waiver Requests .

(l) Meal packaging. A AAA must ensure that a service provider:

(1) uses supplies and carriers to package and transport hot foods separately from cold foods;

(2) uses enclosed meal carriers used to transport easily damaged trays or containers of hot or cold foods to protect such food from contamination, crushing, or spillage and equips the meal carriers with insulation or supplemental hot or cold sources as is necessary to maintain safe temperatures; and

(3) complies with the following in packaging meals:

(A) seals the meal container to prevent moisture loss or spillage to the outside of the container;

(B) maintains a safe temperature of the packaged meal throughout transport;

(C) uses a container designed with compartments to separate food items for visual appeal and to minimize spillage between compartments; and

(D) uses a container a program participant can easily open.

(m) Holding time. A AAA must ensure that a service provider does not allow more than four hours to expire from the time the cooking or reheating of food is completed and the time the food is served to the program participant.

(n) Delivery of home-delivered meals.

(1) A AAA must ensure that a service provider:

(A) delivers meals between 10:30 a.m. and 1:30 p.m.;

(B) keeps meals that are prepared and packaged for delivery at the following temperatures:

(i) 40 degrees Fahrenheit or below for cold food items; and

(ii) 135 degrees Fahrenheit or above for hot food items;

(D) develops written procedures:

(i) ensuring meals are safe and sanitary for the program participant;

(ii) requiring follow-up with a program participant who was not available when a meal delivery was attempted on the same day the attempt was made; and

(iii) ensuring a significant change in a program participant's physical or mental condition or environment is reported to the service provider and appropriate action taken by the service provider on the same day the service provider is notified of the change.

(2) A AAA may reimburse a service provider for a maximum of two attempted but unsuccessful meal deliveries per program participant per month.

(o) Training.

(1) A AAA must ensure that a service provider provides at least one hour of training to a staff person or volunteer of a service provider who is involved in the administration or provision of nutrition services before the staff person or volunteer assumes duties. The training topics must include:

(A) program participant confidentiality;

(B) procedures used in handling emergency situations involving program participants;

(D) general knowledge and basic techniques of working with a person 60 years of age or older and a person with a disability; and

(E) personal hygiene.

(2) A AAA must ensure that a service provider provides the following training to a staff person or volunteer of a service provider who is involved only in the administration of nutrition services before the staff person or volunteer assumes duties:

(A) the training described in paragraph (1) of this subsection; and

(B) one hour of training on the content and implementation of applicable forms, rules, procedures, and policies of DADS, the AAA, and the service provider relating to the administration or provision of nutrition services.

(3) A AAA must ensure that a service provider provides at least two hours of training to a food service supervisor before the supervisor assumes duties. Training topics must include:

(A) personal hygiene;

(B) food storage, preparation and service, including prevention of food borne illness;

(D) selection of proper utensils and equipment for transporting and serving foods;

(E) automatic and manual dishwashing procedures; and

(F) accident prevention.

(4) In addition to the training required by paragraph (3) of this subsection, a AAA must ensure that a service provider provides at least six hours of training to a food service supervisor no later than 30 days after the supervisor assumes duties. Training topics must include:

(A) practical procedures for food preparation, storage, and serving;

(B) portion control of food in appropriate dishes;

(D) nutritional needs and meal pattern requirements of older program participants to be served; and

(E) quality control of:

(i) flavor;

(ii) consistency;

(iii) texture;

(iv) temperature; and

(v) appearance (including the use of garnishes).

(5) A AAA must ensure that the service provider's food service supervisor complies with 25 TAC §229.163 (relating to Management and Personnel).

(6) A AAA must ensure that a service provider documents the provision of training required by paragraphs (1) - (4) of this subsection. The documentation must include the names of the staff person or volunteer being trained and the trainer; the topics covered; and the date, time, and length of the training.

(7) A AAA must ensure that a service provider has an adequate number of staff persons available during the time congregate meals are provided who are certified in:

(A) first aid;

(B) cardiopulmonary resuscitation; and

(p) Nutrition outreach. A AAA must ensure that a service provider develops and maintains a written outreach plan giving priority to persons described in the Older Americans Act, §306(a)(1).

(q) Nutrition education. In accordance with the Older Americans Act, §339(2)(J), a AAA must ensure that a program participant is provided with nutrition screening, nutrition education, and if appropriate, nutrition assessment and counseling.

(r) Political activity. A AAA must ensure that a service provider does not:

(1) use a congregate meal site for political campaigning except in those instances where a representative from each political party running in the campaign is given an equal opportunity to participate; or

(2) distribute political materials at a congregate meal site.

(s) Religious activities and prayer. A AAA must ensure that a service provider does not:

(1) allow a prayer or other religious activity to be officially sponsored, led, or organized by a nutrition site staff person; or

(2) prohibit a program participant from praying silently or audibly at a congregate meal site if the program participant so chooses.

(t) Monitoring.

(1) A AAA must monitor:

(A) a subcontractor providing nutrition services in accordance with §85.201(e) of this chapter (relating to AAA Administrative Responsibilities); and

(B) a vendor providing nutrition services in accordance with §83.19(f) of this title (relating to Direct Purchase of Service (DPS)).

(2) A AAA must ensure that the Department of State Health Services or the local health authority, as applicable, or the service provider monitors a food preparation site, at least annually, to determine whether the requirements of this section have been followed.

(3) A AAA must ensure that the service provider submits the written report of such monitoring to the AAA.

(u) Weather-related emergencies, fire, and other disasters. A AAA must ensure that a service provider:

(1) keeps facilities and equipment available for emergencies and disasters, in accordance with a plan developed by the service provider, that gives priority to program participants 60 years of age or older;

(2) adopts written procedures ensuring the availability of food for program participants in emergencies and disasters; and

(3) promptly notifies the Department of State Health Services and the AAA of a food-borne disease outbreak, (that is, two or more cases of a similar illness resulting from the ingestion of a common food).

(v) Subcontracting by a service provider. A AAA must require a service provider to obtain written approval from the AAA before the service provider contracts with any entity for meal preparation or service delivery.

§85.303.Participant Assessment Services.

(a) Purpose. This section establishes the requirements for participant assessment services, a service provided under the Older Americans Act and funded, in whole or in part, by DADS.

(b) Provision of services.

(1) Except as provided in paragraph (2) of this subsection, a AAA must enter into a vendor agreement for the provision of participant assessment services.

(2) Regarding nutrition services described in §85.302 of this subchapter (relating to Nutrition Services), a AAA may contract with a nutrition services subcontractor for the provision of participant assessment services.

(c) Service activities. Assessment services include only those activities that directly relate to the initial assessment of an individual seeking a service funded under the Older Americans Act and reassessment of a program participant. Such activities may include travel to and from the home of the individual seeking services or program participant for the purpose of conducting an assessment or reassessment.

(d) Assessment and reassessment. A AAA must conduct or ensure that a service provider conducts:

(1) a multidimensional assessment of an individual seeking services funded under the Older Americans Act to determine the type of service an individual needs; and

(2) a reassessment of a program participant to determine the effectiveness of the services provided and whether there is a need for services to continue.

(e) Authorization. Before a vendor conducts an assessment or reassessment as described in subsection (d) of this section, a AAA must ensure that the vendor obtains prior written authorization from the AAA.

§85.304.Homemaker Services.

(a) Purpose. This section establishes the requirements for homemaker services, a service provided under the Older Americans Act and funded, in whole or in part, by DADS.

(b) Eligibility. A AAA must ensure that a program participant who receives homemaker services is:

(1) 60 years of age or older; and

(2) functionally impaired in the ability to perform instrumental activities of daily living as described in DADS Program Instruction AAA - PI 310 Activities of Daily Living/Instrumental Activities of Daily Living NAPIS Mapping Requirements .

(c) Type of provider. A AAA may provide homemaker services as an agency managed service or as a consumer directed service, or as both.

(1) Agency managed. Homemaker services that are agency managed are provided only by a vendor.

(2) Consumer directed. Homemaker services that are consumer directed are provided by furnishing vouchers to a program participant, allowing the program participant to select a homemaker, establish a work schedule and payment rate, and provide the homemaker information and training on the program participant's needs.

(d) Informing program participant of options. If a AAA provides homemaker services as both an agency managed service and as a consumer directed service, the AAA must inform a program participant that he or she may choose to receive homemaker services in either of those two ways.

(e) Service authorization. Before homemaker services are provided by a vendor to a program participant, the AAA must ensure that the vendor must obtains prior written authorization for the services from the AAA in accordance with §83.3(o)(2)(B) of this title (relating to System of Access and Assistance).

(f) Homemaker services. Homemaker services include:

(1) cleaning for the program participant, including:

(A) cleaning after a program participant's personal care tasks;

(B) emptying and cleaning a program participant's bedside toilet;

(D) changing a program participant's bed linens and making the program participant's bed;

(E) cleaning the floor of a program participant's living area;

(F) dusting an area used by a program participant;

(G) taking a program participant's trash to an outside receptacle and moving the receptacle to a location for pick-up;

(H) cleaning a program participant's stovetop and counters;

(I) washing a program participant's dishes; and

(J) cleaning a program participant's refrigerator and stove;

(2) doing a program participant's laundry, including:

(A) washing a program participant's laundry by hand or machine;

(B) gathering and sorting laundry;

(D) using laundromat machines;

(E) hanging laundry to dry; and

(F) folding and putting away laundry;

(3) shopping for the program participant, including:

(A) preparing a shopping list;

(B) going to the store and purchasing or picking up items;

(D) storing the purchased items;

(4) assisting a program participant in organizing and completing a home management routine;

(5) performing necessary reading and writing tasks as directed by the program participant;

(6) preparing meals for the program participant, including:

(A) assisting in planning menus that are appropriate for the program participant's needs;

(B) shopping for and storing food;

(D) utilizing sanitary practices for handling and preparing food; and

(7) accompanying a program participant to obtain health care services and other necessary items and services unless prohibited by subsection (g)(7) of this section.

(g) Prohibited activities. Homemaker services do not include the following:

(1) personal assistance services described in §85.305(e)(1) - (2), (4) - (10), and (12) of this subchapter (relating to Personal Assistance Services);

(2) repairs to the program participant's residence;

(3) pet grooming;

(4) yard maintenance;

(5) moving heavy objects;

(6) performing services for members of the household other than the program participant;

(7) transporting the program participant in a vehicle unless proof of liability insurance covering such transportation has been verified, in writing, by the vendor;

(8) performing tasks beyond the scope of the service authorization required by subsection (e) of this section;

(9) accepting gifts from the program participant;

(10) bringing persons to the program participant's residence who are not providing homemaker services to the program participant;

(11) taking personal property from the program participant's residence; or

(12) assuming control of the financial or personal affairs of the program participant or his or her estate including serving as power of attorney, guardian, or conservator.

(h) Staffing qualification requirements for an agency-managed service.

(1) A AAA must ensure that a vendor that has a program supervisor for homemaker services requires the program supervisor to:

(A) meet one of the following criteria:

(i) be a licensed nurse;

(ii) have completed two years of full-time study in social or behavioral sciences at an accredited college or university; or

(iii) have:

(I) a high school diploma or high school equivalency certificate; and

(II) have one of the following:

(-a-) the equivalent of two years experience as a full-time employee in a supervisory capacity in a health care facility, health care agency, or other health care organization; or

(-b-) the equivalent of one year experience as a full-time employee in a supervisory capacity in a health care facility, health care agency, or other health care organization and have completed one year of full-time study in social or behavioral sciences at an accredited college or university; and

(B) have experience in:

(i) housekeeping or home management; and

(ii) meal preparation activities.

(2) A AAA must ensure that a vendor requires a homemaker (that is, the person who provides homemaking services to the program participant):

(A) to be an adult;

(B) to have the ability to follow oral and written instructions and keep records;

(D) to demonstrate competency to perform homemaker services;

(E) to not be the spouse or legal guardian of the program participant; and

(F) to not live with the program participant.

(i) Training and documentation requirements for an agency managed service. A AAA must ensure that a vendor:

(1) trains homemakers to recognize and report changes in a program participant's health condition that may require emergency procedures or health services;

(2) maintains documentation demonstrating compliance with paragraph (1) of this subsection; and

(3) determines the need for, and requires homemakers to receive, other training as appropriate.

(j) Information and assistance requirements for a consumer directed service. A AAA must:

(1) give a program participant written information to assist the program participant in performing the following activities:

(A) interviewing potential homemakers;

(B) requiring potential homemakers to provide references;

(D) selecting a homemaker who meets the qualifications described in subsection (h)(2) of this section;

(E) deciding upon, in discussion with the homemaker, an hourly, daily, or weekly rate to be paid to the homemaker;

(F) informing or training the homemaker on the specific needs of the program participant;

(G) ensuring proper payment for homemaker services by recording the number of hours or days homemaker is used and the total amount claimed against the voucher;

(H) ensuring federal tax guidelines for household employees are followed in accordance with IRS Publication 926;

(I) notifying the AAA if the program participant's address changes;

(J) monitoring the quality of the homemaker service provided; and

(K) notifying the AAA if the program provider is dissatisfied with a homemaker; and

(2) assist a program participant in finding a homemaker if such assistance is requested by the program participant.

§85.305.Personal Assistance Services.

(a) Purpose. This section establishes the requirements for personal assistance services, a service provided under the Older Americans Act and funded, in whole or in part, by DADS.

(b) Eligibility. A AAA must ensure that a program participant who receives personal assistance services is:

(1) 60 years of age or older; and

(2) functionally impaired in his or her ability to perform activities of daily living as described in DADS Program Instruction AAA - PI - 310 Activities of Daily Living/Instrumental Activities of Daily Living NAPIS Mapping Requirements .

(c) Requirement for a licensed vendor to provide services. A AAA must enter into a vendor agreement for the provision of personal assistance services with an entity licensed by DADS as a home and community support services agency in accordance with Chapter 97 of this title (relating to Licensing Standards for Home and Community Support Services Agencies).

(d) Service authorization. Before personal assistance services are provided by a vendor to a program participant, a AAA must ensure that the vendor obtains authorization for the services from the AAA in accordance with §83.3(o)(2)(B) of this title (relating to System of Access and Assistance).

(e) Personal assistance services. Personal assistance services include:

(1) bathing, which includes:

(A) drawing water in sink, basin, or tub;

(B) hauling or heating water;

(D) assisting a program participant in or out of tub or shower;

(E) sponge bathing and drying a program participant;

(F) bed bathing and drying a program participant;

(G) tub bathing and drying a program participant; and

(H) providing standby assistance for a program participant while the program participant is engaged in bathing activities;

(2) dressing, which includes:

(A) dressing a program participant;

(B) undressing a program participant; and

(3) meal preparation for a program participant, which includes:

(A) assisting in planning menus that are appropriate for the program participant's needs;

(B) cooking a full meal;

(D) helping prepare meals;

(E) planning meals; and

(F) cutting a program participant's food for eating;

(4) feeding a program participant, which includes:

(A) spoon-feeding or bottle-feeding, but not tube feeding;

(B) assisting a program participant with using eating and drinking utensils and adaptive devices; and

(5) exercising by walking with a program participant;

(6) grooming a program participant, which includes:

(A) caring for teeth;

(B) shaving, including face, underarms, and legs;

(D) laying out supplies;

(7) routine hair and skin care, which includes:

(A) washing a program participant's hair;

(B) drying a program participant's hair;

(C) assisting with setting, rolling or braiding a program participant's hair but not cutting or chemical processing of hair;

(D) combing or brushing a program participant's hair;

(E) applying nonprescription lotion to a program participant's skin;

(F) washing hands and face of a program participant;

(G) applying makeup to a program participant; and

(H) laying out supplies;

(8) assistance with self-administered medications, which includes:

(A) reminding a program participant to take a medication at the prescribed time;

(B) opening and closing a medication container;

(D) returning a medication to the proper storage area; and

(E) assisting in reordering medications from a pharmacy;

(9) toileting, which includes:

(A) changing a program participant's day briefs;

(B) changing a program participant's colostomy bag, including emptying the catheter bag;

(D) assisting a program participant with the use of a urinal, including emptying the urinal;

(E) assisting a program participant with feminine hygiene needs;

(F) assisting a program participant with clothing during toileting;

(G) assisting a program participant with toilet hygiene, including the use of toilet paper and washing hands;

(H) changing a program participant's external catheter;

(I) preparing toileting supplies and equipment but not preparing catheter equipment; and

(J) providing standby assistance to the program participant during toileting activities;

(10) transfer or ambulation of the program participant, which includes:

(A) non-ambulatory movement of a program participant from one stationary position to another but not carrying the program participant;

(B) adjusting or changing a program participant's position in a bed or chair;

(D) assisting a program participant in positioning for use of a walking apparatus;

(E) assisting a program participant with putting on and removing leg braces and prostheses for ambulation;

(F) assisting a program participant with ambulation or using steps;

(G) assisting a program participant with wheelchair ambulation; and

(H) providing a program participant with standby assistance while the program participant is engaged in any of the activities listed in subparagraphs (A) - (G) of this paragraph;

(11) home management (that is, assistance with housekeeping activities supporting the program participant's health and safety), which includes:

(A) changing a program participant's bed linens;

(B) cleaning a program participant's house;

(D) shopping for a program participant;

(E) storing purchased items for a program participant; and

(F) washing a program participant's dishes; and

(12) escorting a program participant to obtain health care services and other necessary items and services except as prohibited by subsection (f)(6) of this section;

(f) Prohibited activities. Personal assistance services do not include the following activities:

(1) repairing a program participant's home;

(2) grooming a program participant's pet;

(3) moving heavy objects such as furniture for a program participant;

(4) maintaining a program participant's yard;

(5) performing services for members of a program participant's household other than the program participant;

(6) transporting a program participant in a vehicle unless proof of liability insurance covering such transportation has been verified, in writing, by the vendor;

(7) performing tasks not assigned by the supervisor of the provider of personal assistance services;

(8) accepting gifts from a program participant;

(9) bringing persons to a program participant's home who are not providing personal assistance services to the program participant;

(10) taking personal property from a program participant's home; or

(11) assuming control of the financial or personal affairs of a program participant or of his or her estate, including serving as power of attorney, guardian, or conservator.

(g) Qualifications. A AAA must ensure that a person providing personal assistance services does not live with the program participant.

§85.306.Adult Day Services.

(a) This section establishes the requirements for adult day services, a service provided under the Older Americans Act and funded, in whole or in part, by DADS.

(b) Eligibility. A AAA must ensure that a program participant who receives adult day services:

(1) is:

(A) 60 years of age or older; and

(B) at least moderately impaired in the ability to perform instrumental or ordinary activities of daily living; or

(2) is qualified to receive services under Title III, Part E, of the Older Americans Act.

(c) Requirement for licensed vendor to provide services. A AAA must enter into a vendor agreement for the provision of adult day services with an adult day care facility licensed in accordance with §98.11 of this title (relating to Criteria for Licensing).

(d) Service authorization. Before adult day services are provided by a vendor to a program participant, a AAA must ensure that the vendor obtains authorization for the services from the AAA in accordance with §83.3(o)(2)(B) of this title (relating to System of Access and Assistance).

(e) Description of adult day services. Adult day services consist of nursing services, physical rehabilitative services, nutrition services, socialization activities, and transportation services.

(1) Nursing services. Nursing services must include:

(A) assessing, observing, evaluating, and documenting a program participant's health condition, and instituting appropriate nursing interventions to stabilize or improve a program participant's condition or prevent complications;

(B) assisting a program participant with self-administered medications including, but not limited to, ordering, maintaining, or administering the medications as directed by physician's orders;

(D) counseling a program participant on the program participant's health needs and involving family members and caregivers in the discussions regarding immediate and long-term health goals; and

(E) providing or supervising personal day services to enable a program participant to restore, maintain, or improve the ability to perform activities of daily living and instrumental activities of daily living as defined in DADS Program Instruction AAA-PI-310 Activities of Daily Living/Instrumental Activities of Daily Living NAPIS Mapping Requirements.

(2) Physical rehabilitative services. Physical rehabilitative services must include:

(A) restorative nursing; and

(B) group and individual exercises, including range of motion exercises.

(3) Nutrition services. Nutrition services must include:

(A) one hot meal served between the hours of 10:30 a.m. and 1:30 p.m. that:

(i) is suitable in quantity and adequacy to attain and maintain nutritional requirements, including those of a special needs program participant; and

(ii) consists of at least two ounces of meat, one-half cup of fruit or vegetables, one cup of milk, and two servings of bread;

(B) special diets as required by a program participant's plan of care;

(D) dietary counseling and nutrition education for a program participant and family member; and

(E) assisting with meals, if necessary, for program participants with hand deformities, paralysis, hand tremors, or trouble chewing, including:

(i) grinding meats and mashing vegetables; and

(ii) spoon feeding, bread buttering, and opening containers such as milk or juice.

(4) Socialization activities. Socialization activities are community interaction, cultural enrichment, educational, recreational, or other social activities held in the vendor's facility or in the community in a planned program to meet the social needs and interests of a program participant. A AAA must ensure that a service provider:

(A) provides at least three social activities each day; and

(B) posts a monthly activity calendar in a visible location at least one week in advance of the activities listed.

(5) Transportation services.

(A) Transportation services must include:

(i) round trip transportation to a vendor's facility from a program participant's residence; and

(ii) round trip transportation from a vendor's facility to physician ordered and other medical appointments if it is necessary for a program participant to attend such therapies or appointments while at the facility.

(B) If a vendor does not provide transportation directly, it must arrange for transportation from another person or organization.

(C) A vehicle used for transportation services must be properly operated and maintained and have proper heating and cooling systems to maintain reasonable temperature levels inside the vehicle.

(f) Staff qualifications. A AAA must ensure that staff persons of a service provider meet the qualifications described in §98.62(a) of this title (relating to Program Requirements).

§85.307.Emergency Response Services.

(a) Purpose. This section establishes the requirements for ERS, a service provided under the Older Americans Act and funded, in whole or in part, by DADS.

(b) Eligibility. A AAA must ensure that a program participant who receives emergency response services:

(1) is 60 years of age or older;

(2) meets at least one of the following criteria:

(A) lives alone;

(B) is routinely alone for eight or more hours during a 24-hour period; or

(3) lives in a place other than an LTC facility, personal care home, foster care setting, or any other institutional setting where 24-hour supervision is available; and

(4) is at risk, such as being prone to falling or having an existing medical condition that may be life-threatening if the program participant does not receive immediate assistance.

(c) Requirement for licensed vendor to provide services. A AAA must enter into a vendor agreement for the provision of ERS with an entity licensed:

(1) by the Public Security Bureau of the Texas Department of Public Safety as an alarms systems company; or

(2) by the Department of State Health Services as a personal emergency response system provider.

(d) Service authorization. Before ERS are provided by a vendor to a program participant, a AAA must ensure that the vendor obtains authorization for the services from the AAA in accordance with §83.3(o)(2)(B) of this title (relating to System of Access and Assistance).

(e) Service activities. A AAA must ensure that the vendor:

(1) coordinates and oversees the installation and management of the electronic monitoring system;

(2) initiates services within 14 days after the service effective date on the authorization, unless prohibited by factors beyond its control such as a natural disaster; and

(3) if a program participant is not available to receive services during the time frame described in paragraph (2) of this subsection, initiates services within 72 hours after being notified the program participant is available.

(f) Responder requirements.

(1) A AAA must, before emergency response services are initiated, obtain or must ensure that a vendor obtains from the program participant as many names, as possible, of persons who will serve as responders.

(2) A AAA must designate or must ensure that a vendor designates public service personnel as the responder of last resort for each program participant.

(g) Prerequisites to service. A AAA must ensure that, before initiating ERS, a vendor:

(1) ensures the program participant:

(A) has the capacity to properly operate the electronic monitoring system;

(B) has a telephone with a private line, if the electronic monitoring system requires a private line to function properly; and

(C) signs a release statement allowing a responder to make a forced entry into the program participant's residence to respond to an activated alarm call when there are no other means of entering the residence;

(2) installs the electronic monitoring system;

(3) trains a program participant on the use of the electronic monitoring system, including:

(A) demonstrating to the program participant how the system works; and

(B) demonstrating to the program participant how to activate an alarm call; and

(4) explains to a program participant:

(A) that the program participant must participate in a system check each month;

(B) that the program participant must contact a service provider if:

(i) the program participant's telephone number or address changes; or

(ii) one or more of the program participant's responders changes;

(D) that a responder may forcibly enter a program participant's residence if necessary; and

(E) the procedures for filing a grievance against a service provider.

(h) Program participant file. A AAA must ensure that a vendor maintains a file for each program participant that includes:

(1) the name, telephone number, address, and medical condition of the program participant;

(2) the name and telephone number of the program participant's physician;

(3) the name and telephone number of each responder;

(4) a record of all completed and attempted system checks;

(5) a record of each alarm call;

(6) a copy of all required notices sent to the AAA;

(7) a signed release as required by subsection (g)(1)(C) of this section;

(8) the program participant's acknowledgment the equipment belongs to the vendor;

(9) if applicable, documentation showing approval from the AAA for the continuation of ERS after the time period authorized in accordance with subsection (d) of this section; and

(10) if applicable, documentation stating that service delivery was suspended and the reason for the suspension.

(i) Service delivery. A AAA must ensure that a vendor authorized to provide ERS:

(1) is available and able to respond to an alarm call from a program participant 24 hours a day, seven days a week; and

(2) in response to an alarm call:

(A) attempts to contact the program participant, within one minute of the call, to verify an emergency exists before contacting a responder;

(B) immediately contacts a responder if:

(i) the program participant verifies there is an emergency; or

(ii) the vendor is unable to reach the program participant;

(i) the name of the program participant;

(ii) the date and time an alarm call is received, recorded in hours, minutes, and seconds;

(iii) the time a monitor called the program participant in response to an alarm call, recorded in hours, minutes, and seconds;

(iv) the name of the contacted responder;

(v) a brief description of the incident; and

(vi) a statement of how the incident was resolved;

(3) notifies the responder within 24 hours after becoming aware of a significant change in the program participant's condition; and

(4) notifies the AAA, in writing, of any significant change in a program participant's environment within seven days after becoming aware of the change, including:

(A) a change of address; and

(B) a change in the circumstances described in subsection (b)(2) of this section.

(j) System checks. A AAA must ensure that a vendor:

(1) conducts a system check by activating the call button to test the electronic monitoring system at least once during each calendar month;

(2) documents a completed system check, including the date and time of a completed system check;

(3) completes a system check three times on three different days within one week if a system check fails to activate the electronic monitoring system;

(4) contacts a responder or caregiver (other than public service personnel) to conduct a system check if the vendor is unable to complete a system check after three attempts to schedule with the program participant; and

(5) if unable to conduct a system check, notifies the AAA in writing within 10 days after:

(A) the date and time of each attempted system check;

(B) the date and time of each attempt to contact a responder other than public service personnel; and

(k) Equipment maintenance. A AAA must ensure that a vendor:

(1) replaces or repairs faulty equipment in the program participant's electronic monitoring system within one business day after learning of the faulty equipment if the program participant is available to permit such repair or replacement;

(2) if the program participant is not available as described in paragraph (1) of this subsection, replaces or repairs the equipment as soon as the program participant is available;

(3) instructs the program participant or caregiver in replacing a battery;

(4) visits a program participant's residence to check the electronic monitoring system equipment within five business days after the equipment has registered five or more "low battery" signals in a 72-hour period and replaces the defective battery during the visit, if necessary; and

(5) documents and maintains a record of each instance of faulty equipment and low battery signal and includes in the documentation:

(A) the date the vendor became aware of the faulty equipment or low battery signal;

(B) the equipment or subscriber number;

(D) the date the entire equipment or a part of it was repaired or replaced.

(l) Suspension and termination of services. A AAA must ensure that a vendor:

(1) suspends services before the end of the authorization period and removes the equipment from a program participant's residence, if the vendor becomes aware that:

(A) the program participant moves to an area where the vendor does not provide services or that is not in the AAA's planning and service area;

(B) the program participant is admitted to an LTC facility, personal care home, foster care setting, or any other institutional setting where 24-hour supervision is available;

(C) the program participant moves to a noninstitutional residence and the requirements in subsection (b)(2) of this section are not met;

(D) the program participant dies; or

(E) the program participant requests for services to be terminated; and

(2) if services are suspended and equipment removed from a program participant's residence in accordance with paragraph (1) of this subsection:

(A) notifies the AAA within the next business day after such removal; and

(B) sends a case information form requesting service termination to the AAA within seven days after the notification.

(m) Special reporting considerations. A AAA must ensure that a vendor notifies the AAA of any of the following events within one business day of learning that:

(1) a program participant activated:

(A) four false alarms that result in a response by fire department, police, sheriff, or ambulance personnel within a six-month period; or

(B) 20 false alarms of any kind within a six-month period;

(2) the program participant is away from the residence or is unable to participate in the service delivery for three consecutive months or more; or

(3) the program participant is no longer able to operate the electronic monitoring system properly.

§85.308.Residential Repair Services.

(a) Purpose. This section establishes the requirements for residential repair services, a service provided under the Older Americans Act and funded, in whole or in part, by DADS.

(b) Eligibility. A AAA must ensure that a program participant who receives residential repair services:

(1) is 60 years of age or older;

(2) lives in a residence that requires repair or modification to enhance or address:

(A) energy efficiency;

(B) structural integrity; or

(c) Requirement for vendor to provide services. A AAA must enter into a vendor agreement for the provision of residential repair services.

(d) Service authorization. Before residential repair services are provided by a vendor to a program participant, a AAA must ensure that the vendor obtains authorization for the services from the AAA in accordance with §83.3(o)(2)(B) of this title (relating to System of Access and Assistance).

(e) Intent of services. A AAA must ensure that the residential repairs made by a vendor are essential for maintaining the health, safety, and independence of the program participant living in the residence.

(f) Unit of service. The unit of service of residential repair services is one residence receiving services totaling no more than $5,000 within the current federal fiscal year. A AAA may exceed the $5,000 limit if it has prior written approval from DADS.

(g) Descriptions of residential repair services.

(1) Structural services. Structural services are any repairs to the structure of the residence considered necessary to the health and safety of the program participant.

(2) Accessibility modifications. Accessibility modifications are structural adaptations to meet the needs of a program participant who has a disabling condition.

(3) Electrical services. Electrical services are replacement, repair, and installation of essential electrical wiring or fixtures including telephone wiring.

(4) Plumbing services. Plumbing services are replacement, repair, and installation of essential plumbing lines or fixtures.

(5) Weatherization services. Weatherization services are repairs and modifications or purchase of supplies that protect a residence from the effects of the weather, conserve energy, or provide alternative energy sources to heat or cool.

(6) Safety and security modification. Safety and security modifications are measures taken to prevent accidents, fires, or intrusion into a dwelling and the repair, modification, treatment, or removal of safety hazards in the residence.

(7) Essential appliances. Essential appliances are appliances necessary to sustain a healthy environment and independent living.

(h) Rental units. If the residence in which a program participant is living is not owned by the program participant, a AAA must obtain a signed agreement from the owner authorizing the services before services are provided.

(i) Prohibited activities. Residential repair services do not include the following activities:

(1) construction, repair, or maintenance of outbuildings such as garages, carports, animal shelters, or greenhouses;

(2) installation, repair, or maintenance of nonessential appliances and fixtures; and

(3) beautification of property or other activities that are strictly for cosmetic purposes.

(j) Services completed before payment. A AAA must ensure that before payment is made for residential repair services one of the following occurs:

(1) the program participant acknowledges, in writing, the services have been completed; or

(2) the AAA has confirmed by an on-site visit that the services have been completed.

§85.309.Senior Centers.

(a) Purpose. This section establishes the requirements for senior centers, a service provided under the Older Americans Act and funded, in whole or in part, by DADS.

(b) Senior center services. As provided in the Older Americans Act, §102(36), a senior center is a community facility used for the organization and provision of a broad spectrum of services for persons 60 years of age or older, which may include provision of health (including mental health); social, nutritional, and educational services; and the provision of facilities for recreational activities.

(1) complies with applicable local building codes and ordinances and applicable state and federal laws, rules, and regulations including the Americans with Disabilities Act and the Rehabilitation Act of 1973, Section 504;

(2) establishes the senior center in an area central to and easily accessible by program participants;

(3) conducts fire prevention inspections on a monthly basis using a trained senior staff person or volunteer of the service provider;

(4) posts a copy of the latest fire prevention inspection report in a conspicuous place in the senior center and files the report at the senior center for review by the AAA;

(5) keeps doors, outside stairs, and fire escapes free from obstruction and in proper condition;

(6) has basic first aid supplies at the senior center available and maintained, clearly marked, and accessible to all senior center staff persons and program participants;

(7) has an adequate number of service center staff persons available at the center, during the time the center is open to the public, who are certified in:

(A) first aid;

(B) cardiopulmonary resuscitation; and

(8) develops written policies and procedures regarding senior center operations and makes them available to senior center staff persons and program participants.

(d) Political activity. A AAA must ensure that a service provider does not:

(1) use a senior center for political campaigning except in those instances where a representative from each political party running in the campaign is given an equal opportunity to participate; or

(2) distribute political materials at a senior center.

(e) Religious activities and prayer. A AAA must ensure that a service provider does not:

(1) allow a prayer or other religious activity to be officially sponsored, led, or organized by a senior center staff person or volunteer; or

(2) prohibit a program participant from praying silently or audibly at a senior center if the program participant so chooses.

(f) Inventory. A AAA must maintain an accurate inventory of senior centers that were renovated, acquired, or constructed, in whole or in part, with funds provided by DADS.

(g) Change in ownership or purpose of a senior center.

(1) A AAA must ensure that:

(A) a grantee of funds from DADS to purchase or construct a senior center notifies the AAA, in writing, of the purchase or construction of the center within 30 days after such purchase or completion; and

(B) a grantee of funds described in subparagraph (A) of this paragraph and any successor owner of the senior center:

(i) notifies the AAA, in writing, of:

(I) a change in the ownership of the senior center; or

(II) a change in the purpose of the senior center from the purpose for which it was purchased or constructed; and

(ii) makes such notification 30 days before the change described in clause (i) of this subparagraph.

(2) A AAA must notify DADS if, within 10 years after purchase of or 20 years after completion of construction of a senior center, either of the following occurs:

(A) the owner of a senior center ceases to be a public or nonprofit private agency or organization; or

(B) there is a change in the purpose of the senior center from the purpose for which it was purchased or constructed.

(3) The notice required by paragraph (2) of this subsection must be in writing and be given to DADS within 10 days after a AAA is notified of the occurrence.

(4) If, within 10 years after the purchase of a senior center or 20 years after the completion of construction of a senior center, either of the conditions described in paragraph (2) of this subsection occurs, the United States Government is entitled to recover from the owner of the senior center an amount to be determined by the Older Americans Act, §312.

(h) Insurance. A AAA must ensure that the owner or operator of a senior center maintains insurance coverage for total replacement cost of the center and for the contents of a center funded by DADS.

§85.310.Respite Voucher Services.

(a) Purpose. This section establishes the requirements for respite voucher services, a service provided under the Older Americans Act and funded, in whole or in part, by DADS.

(b) Description of services. Respite voucher services are the provision of vouchers to a program participant to allow the program participant to select a respite provider, establish a work schedule and payment rate, and provide the respite provider information and training on the program participant's needs.

(1) In accordance with the Older Americans Act, §372, a AAA must ensure that a program participant who receives respite voucher services is:

(A) an adult who is an informal provider of in-home and community care for an individual who:

(i) is 60 years of age or older; and

(I) is unable to perform at least two activities of daily living without substantial human assistance, including verbal reminding, physical cueing, or supervision; or

(II) due to a cognitive or other mental impairment, requires substantial supervision because the individual behaves in a manner that poses a serious health or safety hazard to the individual or another person; or

(ii) has Alzheimer's disease or a related disorder with neurological and organic brain dysfunction; or

(B) a person who is 55 years of age or older who:

(i) is a grandparent, step-grandparent, or relative by blood, marriage, or adoption of an individual with a disability or a child;

(ii) is the primary caregiver for the individual with a disability or the child because the individual's or child's biological or adoptive parents are unable or unwilling to serve as the primary caregiver; and

(iii) lives with the individual with a disability or the child; and

(I) has a legal relationship to the individual or the child, such as guardianship; or

(II) is caring for the individual or the child informally.

(2) An adult who is paid by a person or entity to provide caregiving services to an individual described in paragraph (1) of this subsection is not eligible to receive respite voucher services in regard to the same individual.

(d) Targeting. In the provision of respite voucher services a AAA must ensure that:

(1) priority is given to persons described in §85.201(f) of this chapter (relating to AAA Administrative Responsibilities);

(2) for persons described in subsection (c)(1)(A)(ii) of this section, priority is given to persons who provide care for individuals who are 60 years of age or older with Alzheimer's disease or a related disorder with neurological and organic brain dysfunction; and

(3) for persons described in subsection (c)(1)(B) of this section, priority is given to persons who provide care for children with severe disabilities.

(e) Application process. A AAA must:

(1) implement an application process to allow a person to apply for respite voucher services;

(2) process the applications received, including verifying that the requirement described in subsection (c)(1)(A) or (c)(1)(B) of this section are met; and

(3) notify the applicant of whether or not the application is approved.

(f) Information for program participants. A AAA must give a program participant written information to assist the program participant in performing the following activities:

(1) interviewing potential respite providers;

(2) requiring potential respite providers to provide references;

(3) checking references of respite providers;

(4) selecting a qualified respite provider in accordance with subsection (g) of this section;

(5) deciding upon, in discussion with the respite provider, an hourly, daily, or weekly rate to be paid to the provider;

(6) informing or training the respite provider on the specific needs of the program participant;

(7) ensuring proper payment for respite voucher services by recording the number of hours or days of respite used and the total amount claimed against the voucher;

(8) ensuring federal tax guidelines for household employees are followed in accordance with IRS Publication 926;

(9) notifying the AAA if the program participant's address changes;

(10) monitoring the quality of the respite voucher services provided; and

(11) notifying the AAA if the program provider is dissatisfied with a respite provider.

(g) Qualifications of a respite provider. A respite provider selected by a program participant:

(1) must be an adult;

(2) may be, except as provided in paragraph (3) of this subsection, any person or entity, including a family member or friend of the program participant or a licensed adult day care facility; and

(3) must not:

(A) be the spouse or legal guardian of the program participant; or

(B) live with the program participant.

(h) Assistance in finding a respite provider. A AAA must assist a program participant in finding a respite provider if such assistance is requested by the program participant.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 7, 2008.

TRD-200801808

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: May 18, 2008

For further information, please call: (512) 438-3734

Subchapter E. LONG-TERM CARE OMBUDSMAN PROGRAM

40 TAC §85.401

STATUTORY AUTHORITY

The new section implements Texas Government Code, §531.0055, and Texas Human Resources Code, §161.021.

§85.401.Long-Term Care Ombudsman Program.

(a) Purpose. This section establishes the requirements of the Long-Term Care Ombudsman Program, a program established under the Older Americans Act, §712 and funded, in whole or in part, by DADS.

(b) Designation. DADS designates AAAs as local ombudsman entities. A AAA may contract with a nonprofit organization to perform the duties of the local ombudsman entity, as described in this section, in the AAA's planning and service area.

(c) Description of program. The Long-Term Care Ombudsman Program provides services to protect the health, safety, welfare, and rights of residents. Such services include investigating and resolving complaints made by or on behalf of such residents, providing assistance and information to persons in choosing an LTC facility, and promoting a variety of means to ensure that residents' rights are protected, including conducting training programs and supporting the development of resident and family councils that advise LTC facilities.

(d) Eligibility.

(1) Except as provided in paragraph (2) of this subsection, a AAA must ensure that a program participant who receives services from the Long-Term Care Ombudsman Program is a resident and 60 years of age or older.

(2) A AAA may respond to a complaint of a resident who is under 60 years of age if such response:

(A) benefits the residents of that facility or residents of other LTC facilities who are 60 years of age or older; and

(B) will not significantly diminish the effectiveness of the Long-Term Care Ombudsman Program in assisting residents who are 60 years of age or older.

(e) Managing local ombudsman. A AAA must appoint a certified staff ombudsman to act as a managing local ombudsman. The managing local ombudsman must:

(1) oversee the administration of the Long-Term Care Ombudsman Program in the AAA's planning and service area; and

(2) be the primary contact for the local ombudsman entity.

(f) Adequate number of certified ombudsman. In order to implement the Long-Term Care Ombudsman Program as described in this section, a AAA:

(1) must have an adequate number of certified ombudsmen; and

(2) may have friendly visitors.

(g) Qualifications for certified ombudsmen and friendly visitors.

(1) A person may be a certified ombudsman only if:

(A) the person has not been convicted of an offense listed under Texas Health and Safety Code, §250.006;

(B) the person successfully completes a certification training provided by the AAA in accordance with DADS Ombudsman Certification Training Manual;

(C) for a certified volunteer ombudsman, the person successfully completes an internship in accordance with DADS Ombudsman Procedures Manual;

(D) the AAA recommends to the Office, in writing, using DADS Certified Ombudsman Application , that the person be approved as a certified ombudsman;

(E) the Office signs the DADS Certified Ombudsman Application approving the person to be a certified ombudsman; and

(F) the person completes continuing education provided by the AAA in accordance with DADS Ombudsman Procedures Manual.

(2) A person may be a friendly visitor only if the person successfully completes an orientation provided by the AAA in accordance with DADS Ombudsman Procedures Manual.

(h) Access to residents and records.

(1) In accordance with §19.413 of this title (relating to Access and Visitation Rights) and §92.801 of this title (relating to Access to Residents and Records by the Long-Term Care Ombudsman Program), a representative of the Office, as described in subsection (r) of this section, is entitled to immediate access to a resident.

(2) In accordance with §19.413 of this title and §92.801 of this title a certified ombudsman and a staff person of the Office are entitled to access:

(A) the medical and social records of a resident, if the certified ombudsman or staff person of the Office has the consent of the resident or the legally authorized representative of the resident;

(B) the medical and social records of a resident 60 years of age or older, if such access is necessary to investigate a complaint made to the Long-Term Care Ombudsman Program and:

(i) the resident is unable to consent to access and has no legally authorized representative; or

(ii) the following circumstances occur:

(I) the legal guardian of the resident refuses to give consent for access to the records;

(II) the certified ombudsman or staff person of the Office has reasonable cause to believe that the guardian is not acting in the best interest of the resident; and

(III) the certified ombudsman or staff person of the Office obtains the approval of the State Long- Term Care Ombudsman to access the records without the guardian's consent; and

(C) to the administrative records, policies and documents of the LTC facility to which the residents or general public have access.

(i) Conflict of interest and identity of certain relationships.

(1) A AAA must ensure that a certified ombudsman, an ombudsman intern, and a member of the immediate family of the managing local ombudsman are not subject to a conflict of interest.

(2) A conflict of interest includes the following:

(A) having a direct involvement in the licensing or certification of an LTC facility or of a home and community support services agency (HCSSA) licensed to provide home health services or hospice services in accordance with Chapter 97 of this title (relating to Licensing Standards for Home and Community Support Services Agencies);

(B) having an ownership or investment interest (represented by equity, debt, or other financial relationship) in an LTC facility or a HCSSA licensed to provide home health services or hospice services in accordance with Chapter 97 of this title;

(C) being employed by, or participating in the management of, an LTC facility or a HCSSA licensed to provide home health services or hospice services in accordance with Chapter 97 of this title;

(D) receiving, or having the right to receive, directly or indirectly, remuneration (in cash or in kind) under a compensation arrangement with an owner or operator of an LTC facility or a HCSSA licensed to provide home health services or hospice services in accordance with Chapter 97 of this title; and

(E) a certified ombudsman or ombudsman intern having a relative who is a resident in or an employee of an LTC facility in which the certified ombudsman or ombudsman intern provides Long-Term Care Ombudsman Program services.

(3) a conflict of interest described in paragraph (2)(A) - (D) of this subsection exists only if an LTC facility is in a AAA's planning and service area or a HCSSA is providing services to an LTC facility in a AAA's planning and service area.

(4) A AAA must specify, in writing, the mechanisms to:

(A) identify and remove conflicts of interest; and

(B) identify and address, if necessary, a familial or personal relationship that a certified ombudsman or ombudsman intern has with:

(i) a staff person of an LTC facility in the AAA's planning and service area; or

(ii) a staff person of DADS.

(j) Complaints. A AAA must:

(1) ensure that a person is allowed to make a complaint about circumstances that may adversely affect the health, safety, welfare, or rights of a resident in the following ways:

(A) in writing, including by electronic mail;

(B) in person; and

(i) a toll-free telephone number established by the AAA; or

(ii) acceptance by the AAA of a collect telephone call;

(2) initiate a complaint if the AAA becomes aware of circumstances that may adversely affect the health, safety, welfare, or rights of a resident;

(3) unless a complaint is initiated by the AAA in accordance with paragraph (2) of this subsection, respond to the person who makes a complaint, within two business days after receipt of the complaint or sooner, if possible, if the complaint presents an emergency situation;

(4) require a certified ombudsman to initiate an investigation of a complaint as soon as practicable after receipt of the complaint;

(5) require a certified ombudsman to investigate and resolve a complaint in a fair and objective manner; and

(6) report information about complaints to DADS in accordance with instructions promulgated by the Office.

(k) Disclosure of information.

(1) A AAA may disclose confidential information regarding a resident, including the identity of a resident, only if:

(A) the resident or legally authorized representative consents to the disclosure in writing;

(B) the resident or legally authorized representative consents to the disclosure orally and the consent is documented by a certified ombudsman, in writing, at the time the oral consent is given; or

(2) A AAA may disclose the identity of a person who files a complaint only if:

(A) the complainant, or legally authorized representative of the complainant, consents to the disclosure in writing;

(B) the complainant, or legally authorized representative consents to the disclosure orally and the consent is documented by a certified ombudsman, in writing, at the time the oral consent is given; or

(3) A AAA must disclose Long-Term Care Ombudsman Program information, other than the information described in paragraphs (1) and (2) of this subsection, in accordance with Texas Government Code, Chapter 552 (the Public Information Act).

(l) Representation of residents. A AAA may represent the interests of a resident before government agencies and seek administrative, legal, and other remedies to protect the health, safety, welfare, and rights of the resident, if requested by a resident or another person on behalf of the resident.

(m) Review of proposed laws, regulations, and policies. A AAA may review and comment on existing and proposed laws, regulations, and other government policies and actions that pertain to the rights and well-being of a resident; and facilitate the ability of the public to comment on the laws, regulations, policies, and actions.

(n) Community relations. A AAA must:

(1) ensure that the local Ombudsman entity is visible within a AAA's planning and service area;

(2) coordinate with public and private organizations to involve residents in the community;

(3) be a knowledgeable resource about:

(A) community services and supports for residents;

(B) LTC facilities (including having information about facility operations and Ombudsman complaint history) without recommending a specific facility;

(D) resident-centered care (that is, care based on a resident's needs, choices, and preferences);

(4) provide training to LTC facility staff regarding quality of care provided to residents as requested by a facility;

(5) support the development of resident and family councils in LTC facilities; and

(6) coordinate with DADS Regulatory Services, at least quarterly, and the Department of Family and Protective Services, as needed, to resolve issues regarding LTC facility operations and the quality of care for and the quality of life of residents.

(o) Recruitment, supervision, and retention of certified volunteer ombudsmen. If a AAA determines that certified volunteer ombudsmen are needed, the AAA must:

(1) determine the number of certified volunteer ombudsmen needed to comply with DADS performance measures;

(2) make a good faith effort to recruit the number of certified volunteer ombudsmen needed;

(3) ensure that a certified volunteer ombudsman meets the qualifications described in subsection (g) of this section and is not subject to a conflict of interest as described in subsection (i) of this section;

(4) supervise and routinely communicate with a certified volunteer ombudsman to:

(A) monitor performance;

(B) support effective volunteer conduct; and

(5) promote retention of a certified volunteer ombudsman by:

(A) providing continuing education in accordance with subsection (g)(1)(F) of this section;

(B) providing recognition and motivational activities;

(D) conducting exit evaluations for a certified volunteer ombudsman leaving volunteer service.

(p) Grievance procedures for certified volunteer ombudsmen and friendly visitors. A AAA must have a process that:

(1) allows a certified volunteer ombudsman or friendly visitor to file a grievance with the AAA regarding the Long-Term Care Ombudsman Program; and

(2) requires a staff person of the AAA to review and resolve the grievance.

(q) Compliance with documents of the Office. A AAA must comply with the following documents promulgated by the Office:

(1) DADS Ombudsman performance measures;

(2) DADS Ombudsman Procedures Manual;

(3) DADS Program Instructions; and

(4) DADS Ombudsman Certification Training Manual.

(r) Representatives of the Office. In accordance with Texas Human Resources Code, §101.051(4), DADS designates the following persons as representatives of the Office:

(1) staff persons of the Office;

(2) certified ombudsmen; and

(3) ombudsman interns.

(s) Contractor compliance. If a AAA contracts with a nonprofit organization as described in subsection (b) of this section, the AAA must ensure that the organization complies with the requirements for a AAA described in this section.

(t) Ombudsman maintenance of effort.

(1) A AAA must comply with the Older Americans Act, §306(a)(9) regarding adequate expenditures for the Long-Term Care Ombudsman Program.

(2) A AAA may request, in writing, by September 30 of each year, that DADS waive the requirement described in paragraph (1) of this subsection for the next federal year.

(3) DADS may grant such a request if the AAA demonstrates adequate justification.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 7, 2008.

TRD-200801809

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: May 18, 2008

For further information, please call: (512) 438-3734

Chapter 92. LICENSING STANDARDS FOR ASSISTED LIVING FACILITIES

Subchapter I. ACCESS TO RESIDENTS AND RECORDS BY THE LONG-TERM CARE OMBUDSMAN PROGRAM

40 TAC §92.801

The Health and Human Services Commission (HHSC) proposes, on behalf of the Department of Aging and Disability Services (DADS), new §92.801, concerning access to residents and records by the Long-Term Care Ombudsman Program, in new Subchapter I, Chapter 92, Licensing Standards for Assisted Living Facilities.

BACKGROUND AND PURPOSE

The purpose of the new section is to update DADS rules to be consistent with §712(b) of the Older Americans Act of 1965, as amended in 2006. Section 712(b) requires the State to ensure that certified ombudsmen and staff of the Office of the State Long-Term Care Ombudsman have appropriate access to residents of assisted living facilities and to the residents' records when necessary to investigate complaints. Currently, DADS rules do not require an assisted living facility to allow certified ombudsmen access to residents or to a resident's record, although access is authorized in federal law. The proposal will clarify the rights of residents in assisted living facilities and the responsibilities of an assisted living facility under the federal law.

SECTION-BY-SECTION SUMMARY

The proposed new section states that a resident of an assisted living facility has the right to be visited by, and a facility must provide immediate access to any resident to, a representative of the Office of the State Long-Term Care Ombudsman. Subsection (b) of the new section describes the records and documents to which a certified ombudsman has access.

The new section cross-references two rules in Chapter 85 (§85.2 and §85.401) that are proposed elsewhere in this issue of the Texas Register . Proposed new §85.2 defines a certified ombudsman as a certified staff ombudsman or a certified volunteer ombudsman. Proposed new §85.401(r) defines a representative of the Office of the State Long-Term Care Ombudsman as a staff person of the Office, a certified ombudsman, or an ombudsman intern.

FISCAL NOTE

SMALL BUSINESS AND MICRO-BUSINESS IMPACT ANALYSIS

DADS has determined that the proposed new section will not have an adverse economic effect on small businesses or micro-businesses, because the new section imposes no new obligations on facilities that would require them to alter their business practices.

PUBLIC BENEFIT AND COSTS

Veronda Durden, DADS Assistant Commissioner for Regulatory Services, has determined that, for each year of the first five years the new section is in effect, the public benefit expected as a result of enforcing the new section is that DADS rules will be in compliance with federal law, that a resident's right to access a representative of the Office of the State Long-Term Care Ombudsman Program will be clarified, and a facility's responsibility to allow access to residents and residents' records by the State Long-Term Care Ombudsman will be in rule.

Ms. Durden anticipates that there will not be an economic cost to persons who are required to comply with the new section. The new section will not affect a local economy.

TAKINGS IMPACT ASSESSMENT

PUBLIC COMMENT

Questions about the content of this proposal may be directed to Hannah Ndika at (512) 438-2133 in DADS' Regulatory Services Division. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-016, Department of Aging and Disability Services W-615, P.O. Box 149030, Austin, Texas 78714-9030, or street address 701 West 51st St., Austin, TX 78751; faxed to (512) 438-5759; or e-mailed to rulescomments@dads.state.tx.us . To be considered, comments must be submitted no later than 30 days after the date of this issue of the Texas Register . The last day to submit comments falls on a Sunday; therefore, comments must be either (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered to DADS before 5:00 p.m. on DADS' last working day of the comment period; or (3) faxed or e-mailed by midnight on the last day of the comment period. When faxing or e-mailing comments, please indicate "Comments on Proposed Rule 016" in the subject line.

STATUTORY AUTHORITY

The new section implements Texas Government Code, §531.0055; Texas Human Resources Code, §161.021; and Texas Health and Safety Code, §§247.001 - 247.069.

§92.801.Access to Residents and Records by the Long-Term Care Ombudsman Program.

(a) A resident has the right to be visited by, and a facility must provide immediate access to any resident to, a representative of the Office of the State Long-Term Care Ombudsman (the Office), as described in §85.401(r) of this title (relating to Long-Term Care Ombudsman Program).

(b) A facility must allow a certified ombudsman, as defined in §85.2 of this title (relating to Definitions), and a staff person of the Office access:

(1) to the medical and social records of a resident, if the certified ombudsman or staff person of the Office has the consent of the resident or the legally authorized representative of the resident;

(2) to the medical and social records of a resident 60 years of age or older, in accordance with the Older Americans Act, §712(b); and

(3) to the administrative records, policies, and documents of the facility to which the facility residents or general public have access.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 7, 2008.

TRD-200801814

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: May 18, 2008

For further information, please call: (512) 438-3734

Chapter 93. EMPLOYEE MISCONDUCT REGISTRY (EMR)

The Health and Human Services Commission (HHSC) proposes, on behalf of the Department of Aging and Disability Services (DADS), the repeal of Chapter 93, Employee Misconduct Registry (EMR), consisting of §§93.1 - 93.4, 93.11 - 93.13, 93.21 - 93.23, 93.31 - 93.34, 93.41 - 93.48, and 93.61 - 93.63; and proposes new Chapter 93, Employee Misconduct Registry (EMR), consisting of §93.1, concerning purpose; §93.2, concerning definitions; §93.3, concerning employment and registry information; §93.4, concerning investigations; §93.5, concerning DADS investigates: notice to employee of reportable conduct; §93.6, concerning DADS investigates: informal review; §93.7, concerning DADS investigates: notice of opportunity for formal hearing; §93.8, concerning entering information in the EMR; and §93.9, concerning removing information from the EMR.

BACKGROUND AND PURPOSE

The purpose of the new sections and repeal is to update DADS rules to be consistent with Senate Bill (SB) 1318, 80th Legislature, 2007, which amended Texas Health and Safety Code, §142.009, to give the responsibility for investigating allegations of abuse, neglect, and exploitation of children by home and community support services agency employees to DADS. Part of the implementation of this new responsibility requires the reorganization of DADS' rules governing the EMR, established in accordance with Texas Health and Safety Code, Chapter 253.

The proposal rewrites and reorganizes the EMR rules to be clearer and easier for the public to use and understand and changes the format to be more consistent with other Health and Human Services Enterprise rules. The proposal also adds and updates definitions, updates agency names, and corrects rule cross-references.

SECTION-BY-SECTION SUMMARY

The proposed new rules in §§93.1 - 93.9 update agency names, rewrite and reorganize rule language, and correct rule cross-references.

Proposed new §93.2 updates definitions, adds a definition for "child," and amends the definition of "facility" by adding hospice inpatient units and hospice residential units.

Proposed new §93.3 states that a facility or agency must check the EMR and the Nurse Aide Registry (NAR) to determine if an applicant for employment is listed as unemployable, states that a facility or agency must not employ a person listed in the EMR or NAR as unemployable, and requires facilities and agencies to provide information about the EMR to employees.

Proposed new §93.4 sets out the allegations of reportable conduct that DADS is responsible for investigating to add that DADS is responsible for the investigation of allegations of reportable conduct and provision of due process for a home and community support services agency employee who provides services to a child.

Proposed new §93.5 describes the procedures DADS follows to provide notice to an employee after an investigation in which DADS determines evidence exists to indicate that the employee has committed a reportable act.

Proposed new §93.6 describes the procedures DADS follows if an employee requests an informal review.

Proposed new §93.7 describes the procedures and timeline that DADS follows to provide an employee with the notice of opportunity for a formal hearing and states that if the employee does not respond to the written notice and does not request a formal hearing, the reportable conduct is recorded in the EMR.

Proposed new §93.8 describes the procedures DADS follows and the information DADS enters in the EMR.

Proposed new §93.9 describes DADS' procedures for removing an employee's name from the EMR.

The repeal of §§93.1 - 93.4, 93.11 - 93.13, 93.21 - 93.23, 93.31 - 93.34, 93.41 - 93.48, and 93.61 - 93.63 is part of rewriting and reorganizing the EMR rules.

FISCAL NOTE

Gordon Taylor, DADS Chief Financial Officer, has determined that, for the first five years the proposed new sections and repeal are in effect, enforcing or administering the new sections and repeal does not have foreseeable implications relating to costs or revenues of state or local governments.

SMALL BUSINESS AND MICRO-BUSINESS IMPACT ANALYSIS

DADS has determined that the proposed new sections and repeal will not have an adverse economic effect on small businesses or micro-businesses, because the proposal does not place any new requirements on small businesses or micro-businesses.

PUBLIC BENEFIT AND COSTS

Veronda Durden, DADS Assistant Commissioner for Regulatory Services, has determined that, for each year of the first five years the new sections and repeal are in effect, the public benefit expected as a result of enforcing the new sections and repeal is that DADS' rules will reflect changes to Texas Health and Safety Code, Chapters 142 and 253, made by SB 1318. The rewritten EMR rules will be easier for the public to use and understand.

Ms. Durden anticipates that there will not be an economic cost to persons who are required to comply with the new sections and repeal. The new sections and repeal will not affect a local economy.

TAKINGS IMPACT ASSESSMENT

PUBLIC COMMENT

Questions about the content of this proposal may be directed to Jennifer Morrison at (512) 438-4624 in DADS' Regulatory Services Division. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-001, Department of Aging and Disability Services W-615, P.O. Box 149030, Austin, Texas 78714-9030, or street address 701 West 51st St., Austin, TX 78751; faxed to (512) 438-5759; or e-mailed to rulescomments@dads.state.tx.us . To be considered, comments must be submitted no later than 30 days after the date of this issue of the Texas Register . The last day to submit comments falls on a Sunday; therefore, comments must be either (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered to DADS before 5:00 p.m. on DADS' last working day of the comment period; or (3) faxed or e-mailed by midnight on the last day of the comment period. When faxing or e-mailing comments, please indicate "Comments on Proposed Rule 001" in the subject line.

40 TAC §§93.1 - 93.9

The new sections implement Texas Government Code, §531.0055, Texas Human Resources Code, §161.021, and Texas Health and Safety Code, §§253.001 - 253.010.

§93.1.Purpose.

This chapter implements Texas Health and Safety Code, Chapter 253, Employee Misconduct Registry, to track findings of reportable conduct by an unlicensed employee of a facility or agency regulated by DADS.

§93.2.Definitions.

The following words and terms in this chapter have the following meanings, unless the context clearly indicates otherwise:

(1) Administrative law judge--A SOAH attorney who conducts formal hearings.

(2) Agency--An entity that is licensed by DADS under Texas Health and Safety Code, Chapter 142, Home and Community Support Services, or a person exempt from licensing under Texas Health and Safety Code, §142.003(a)(19), which includes a Home and Community-based Services Program provider.

(3) Child--A person under 18 years of age who is not and has not been married or who has not had the disabilities of minority removed for general purposes.

(4) Commissioner--The commissioner of DADS.

(5) DADS--The Department of Aging and Disability Services.

(6) Employee--A person who:

(A) works for an agency or facility;

(B) provides personal services, active treatment, or any other personal services to a resident or consumer of the facility or to an individual receiving agency services;

(D) is not a certified nurse aide working at a nursing facility.

(7) EMR--Employee Misconduct Registry.

(8) Facility--A facility licensed by DADS, including a hospice inpatient unit or hospice residential unit, or an adult foster care provider that contracts with DADS.

(9) Formal hearing--A hearing held by SOAH to determine whether an employee has committed reportable conduct in a facility or agency.

(10) IR--Informal review. An opportunity for an employee to dispute a finding of reportable conduct by providing testimony and supporting documentation to an impartial DADS staff person.

(11) Reportable conduct--

(A) abuse or neglect that causes or may cause death or harm to a resident or consumer of a facility or to an individual receiving agency services;

(B) sexual abuse of a resident or consumer of a facility or of an individual receiving agency services;

(C) financial exploitation of a resident or consumer of a facility or of an individual receiving agency services in the amount of $25 or more; or

(D) emotional, verbal, or psychological abuse that causes harm to a resident or consumer of a facility or to an individual receiving agency services.

(12) SOAH--State Office of Administrative Hearings. A state agency responsible for conducting formal hearings for other state agencies, including DADS.

§93.3.Employment and Registry Information.

(a) Before a facility or agency hires an employee, the facility or agency must check the EMR and the Nurse Aide Registry (NAR) (governed by the Omnibus Budget Reconciliation Act of 1987) to determine if the applicant for employment is listed as unemployable.

(b) A facility or agency must not employ a person listed in the EMR or NAR as unemployable.

(1) be in writing; and

(2) state that persons listed in the EMR are not employable.

(d) The EMR applies to an employee of a facility or agency, which includes:

(1) a nursing facility;

(2) a licensed intermediate care facility for persons with mental retardation or a related condition;

(3) an assisted living facility;

(4) an adult foster care provider;

(5) an adult day care facility;

(6) a home and community support services agency licensed under Texas Health and Safety Code, Chapter 142; and

(7) a person exempt from licensing under Texas Health and Safety Code, §142.003(a)(19).

§93.4.Investigations.

DADS is responsible for the investigation of allegations of reportable conduct and provision of due process for:

(1) a facility employee; and

(2) a home and community support services agency employee who provides services to a child.

§93.5.DADS Investigates: Notice to Employee of Reportable Conduct.

(a) After an investigation in which DADS determines evidence exists to indicate that an employee has committed a reportable act, DADS staff send the employee a written notice that includes:

(1) a brief summary of the findings and facts on which the findings are based;

(2) the employee's right to an IR to dispute the findings;

(3) notice that the request for an IR must be made no later than 10 calendar days after the date the employee receives the written notice; and

(4) the address and contact information for the local DADS regional office.

(b) An employee may dispute these findings by requesting an IR within the required time frame to request an IR.

§93.6.DADS Investigates: Informal Review.

(a) If an employee requests an IR, DADS sets a date to allow the employee to dispute the findings by providing testimony, in person or by telephone, to an impartial Regulatory Services Division staff person at the local DADS regional office.

(1) If the staff person does not uphold the findings, DADS does not record the employee's name or related information in the EMR.

(2) If the staff person upholds the findings, DADS notifies the employee of the results and the process continues.

(b) If the employee does not request an IR, or fails to appear for a requested IR, DADS notifies the employee of the results and the process continues.

§93.7.DADS Investigates: Notice of Opportunity for Formal Hearing.

(a) After the informal review process is completed, DADS staff review the findings and supporting documentation and send the employee a written notice that includes:

(1) a brief summary of the findings;

(2) the employee's right to a formal hearing on the reportable conduct;

(3) notice that the request for hearing must be made in writing no later than 30 calendar days after the date the employee receives the written notice; and

(4) the address and contact information for the Health and Human Services Commission Hearings Division.

(b) If the employee does not request a formal hearing, the employee's name and related information is recorded in the EMR.

(c) An employee may request a formal hearing conducted in accordance with the Health and Human Services Commission's formal hearing procedures in Title 1, Texas Administrative Code, Chapter 357, Subchapter I.

(d) If an employee requests a hearing, the employee is granted a formal hearing on the incident of reportable conduct before an administrative law judge at SOAH.

(e) The administrative law judge issues a proposal for decision finding that the employee either did or did not commit reportable conduct.

(f) The commissioner or the commissioner's designee reviews the proposal for decision and issues a final order.

§93.8.Entering Information in the EMR.

(a) DADS records an employee's name and related information in the EMR:

(1) when all due process procedures are completed and a finding of reportable conduct is substantiated by DADS;

(2) as required by Texas Health and Safety Code, §253.0075, when DADS receives notice of substantiated findings from the Department of Family and Protective Services; and

(3) if an agency of another state or the federal government finds that an employee has committed an act that constitutes reportable conduct, DADS may make a record in the EMR of the employee's name, the employee's address, the employee's social security number, the name of the facility, the address of the facility, the date of the act, and a description of the act.

(b) The following information is entered in the EMR:

(1) the employee's name;

(2) the employee's address;

(3) the employee's social security number;

(4) the name of the facility or agency;

(5) the address of the facility or agency;

(6) the date of the act of reportable conduct; and

(7) a description of the act of reportable conduct.

§93.9.Removing Information from the EMR.

DADS may remove an employee's name from the EMR if the employee requests the entry of information be reconsidered, and DADS determines that the employee does not meet the requirements for listing in the EMR.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 3, 2008.

TRD-200801740

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: May 18, 2008

For further information, please call: (512) 438-3734

Subchapter A. INTRODUCTION

40 TAC §§93.1 - 93.4

The repeal implements Texas Government Code, §531.0055, and Texas Human Resources Code, §161.021.

§93.1.What is the purpose of this chapter?

§93.2.What do certain words and terms in this chapter mean?

§93.3.What is the EMR?

§93.4.To whom does the EMR apply?

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 3, 2008.

TRD-200801741

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: May 18, 2008

For further information, please call: (512) 438-3734

Subchapter B. EMR USE REQUIREMENTS

40 TAC §§93.11 - 93.13

The repeal implements Texas Government Code, §531.0055, and Texas Human Resources Code, §161.021.

§93.11.What are facilities and agencies required to do before hiring a new employee?

§93.12.Can facilities and agencies employ a person who is listed on the EMR or the Nurse Aide Registry as unemployable?

§93.13.What information are facilities and agencies required to provide to employees?

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 3, 2008.

TRD-200801742

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: May 18, 2008

For further information, please call: (512) 438-3734

Subchapter C. PROCESS FOR FACILITY REFERRALS

40 TAC §§93.21 - 93.23

The repeal implements Texas Government Code, §531.0055, and Texas Human Resources Code, §161.021.

§93.21.How does the process begin for a facility employee referred to the EMR?

§93.22.Who is responsible for the investigation and provision of due process to facility employees referred to the EMR?

§93.23.What happens when DHS receives a report that a facility employee has committed reportable conduct?

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 3, 2008.

TRD-200801743

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: May 18, 2008

For further information, please call: (512) 438-3734

Subchapter D. PROCESS FOR AGENCY REFERRALS

40 TAC §§93.31 - 93.34

The repeal implements Texas Government Code, §531.0055, and Texas Human Resources Code, §161.021.

§93.31.How does the process begin for an agency employee referred to the EMR?

§93.32.Who is responsible for the investigation and due process of agency employees referred to the EMR?

§93.33.What happens when the Texas Department of Protective and Regulatory Services receives a report that an agency employee has committed reportable conduct?

§93.34.What happens when DHS receives a notice of substantiated findings of reportable conduct from the Texas Department of Protective and Regulatory Services?

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 3, 2008.

TRD-200801744

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: May 18, 2008

For further information, please call: (512) 438-3734

Subchapter E. DETERMINATION OF REPORTABLE CONDUCT, INFORMAL REVIEW, AND FORMAL HEARING FOR FACILITY REFERRALS

40 TAC §§93.41 - 93.48

The repeal implements Texas Government Code, §531.0055, and Texas Human Resources Code, §161.021.

§93.41.What happens once reportable conduct is determined and the facility employee is referred to the EMR?

§93.42.How does a facility employee dispute DHS's finding of reportable conduct?

§93.43.What happens when a facility employee requests an informal review?

§93.44.What happens if the facility employee does not respond to the notice letter and does not request an informal review?

§93.45.Is the facility employee offered any further opportunities to dispute the finding(s) of reportable conduct?

§93.46.What happens if the facility employee does not respond to the notice letter and does not request a formal hearing?

§93.47.What happens when a facility employee requests a formal hearing?

§93.48.What happens if the administrative law judge finds that the facility employee committed reportable conduct?

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 3, 2008.

TRD-200801745

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: May 18, 2008

For further information, please call: (512) 438-3734

Subchapter F. RECORDABLE INFORMATION IN THE EMR

40 TAC §§93.61 - 93.63

The repeal implements Texas Government Code, §531.0055, and Texas Human Resources Code, §161.021.

§93.61.What must occur before DHS may record an employee's name in the EMR?

§93.62.What information is recorded in the EMR?

§93.63.Is it possible to remove an employee's name from the EMR once it is listed?

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 3, 2008.

TRD-200801746

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: May 18, 2008

For further information, please call: (512) 438-3734

Chapter 100. MISCELLANEOUS

Subchapter A. OPERATION OF THE TEXAS DEPARTMENT ON AGING

40 TAC §100.1, §100.3

The Health and Human Services Commission (HHSC) proposes, on behalf of the Department of Aging and Disability Services (DADS), the repeal of §100.1, concerning operation of the Texas Department on Aging, and §100.3, concerning governing documents, in Chapter 100, Miscellaneous.

BACKGROUND AND PURPOSE

SECTION-BY-SECTION SUMMARY

The repeal of §100.1 deletes obsolete AAA definitions, including the Texas Department on Aging's mission statement, scope of responsibilities, standards governing private donors, charges for copies of public records, and interagency agreements.

The repeal of §100.3 deletes obsolete rules that reference the Texas Department on Aging's governing documents.

FISCAL NOTE

SMALL BUSINESS AND MICRO-BUSINESS IMPACT ANALYSIS

PUBLIC BENEFIT AND COSTS

Gary Jessee, DADS Assistant Commissioner for Access and Intake, has determined that, for each year of the first five years after the repeal, the public benefit expected as a result of repealing the sections will be to remove obsolete rules from DADS' rule base, resulting in clearer, more up-to-date rules.

Mr. Jessee anticipates that there will not be an economic cost to persons who are affected by the repeal. The repeal will not affect a local economy.

TAKINGS IMPACT ASSESSMENT

PUBLIC COMMENT

STATUTORY AUTHORITY

The repeal implements Texas Government Code, §531.0055, and Texas Human Resources Code, §161.021.

§100.1.Operation of the Texas Department on Aging.

§100.3.Governing Documents.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 7, 2008.

TRD-200801812

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: May 18, 2008

For further information, please call: (512) 438-3734