Adopted 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), on behalf of the Department of Aging and Disability Services (DADS), adopts amendments to §§19.101, 19.1210, 19.1911, 19.1926, 19.2302, 19.2326, 19.2500, and 19.2609; adopts new §§19.2401, 19.2403, 19.2407, 19.2413, 19.2611, and 19.2615; and adopts the repeal of §§19.1212, 19.2402 - 19.2404, 19.2407 - 19.2410, and 19.2413 in Chapter 19, Nursing Facility Requirements for Licensure and Medicaid Certification. The amendments to §§19.101, 19.2302, and 19.2500 are adopted with changes to the proposed text published in the April 18, 2008, issue of the Texas Register (33 TexReg 3170). The amendments to §§19.1210, 19.1911, 19.1926, 19.2326, and 19.2609; new §§19.2401, 19.2403, 19.2407, 19.2413, 19.2611, and 19.2615; and the repeal of §§19.1212, 19.2402 - 19.2404, 19.2407 - 19.2410, and 19.2413 are adopted without changes to the proposed text.

The amendments, new sections, and repeal are adopted to implement rule changes necessitated by a project under the direction of HHSC that replaces 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 amendments are also adopted to update agency names, correct rule cross-references, and update statutory citations.

The amendment to §19.101 is changed to add the definitions for "Family council" and "Resident group" in order to ensure that the definitions section is consistent with an amendment to the same section published in the January 18, 2008, issue of the Texas Register.

A minor change was made to the text of §19.2500 to clarify and improve the accuracy of the section.

Two minor editorial changes were made to the text of §19.2302 to clarify and improve the accuracy of the section. The changes update a reference to 1 TAC §371.212 and delete a reference to 1 TAC §371.213, which is being repealed by HHSC.

DADS received written comments from the Geriatric Associates of America, PA, the Coalition for Nurses in Advanced Practice, the Texas Association of Residential Care Communities, and one individual. A summary of the comments and the responses follow.

Comment: Concerning §19.101(15), one commenter recommended deleting "consistent with" and adding "considering" in regard to the preferences of the resident in the definition for care and treatment.

Response: The purpose of the amendments to the rules is to implement the change from TILEs to RUGs. Other changes would require additional time to review to determine the impact on the entire chapter and possibly to provide opportunity for input from other interested parties. While the suggested changes may be appropriate to consider at a later date, DADS believes it is necessary to implement the TILEs to RUGs change as soon as possible. The suggested change to §19.101(15) is outside the scope of the changes being made to implement the TILEs to RUGs transition in Medicaid nursing facilities. Therefore, the agency declines to make the change at this time.

Comment: Concerning §19.101(20), one commenter recommended that "an RN" be deleted and replaced with "licensed nurse" for the purpose of signing that an MDS assessment is complete.

Response: The agency has determined this change to §19.101(20) is not appropriate because §19.801(9)(A) states that for MDS assessments, "(9) Certification. (A) A registered nurse must sign and certify that the assessment is completed" and because 42 CFR §483.20(i)(1) states that for MDS assessments, "(i) Certification. (1) A registered nurse must sign and certify that the assessment is completed." Therefore, the agency declines to make the change at this time.

Comment: Concerning §19.101(68), one commenter recommended that "registered nurse" be deleted and replaced with "licensed nurse" for the definition for MDS nurse reviewer.

Response: The agency has determined this change to §19.101(68) is not appropriate as the Health and Human Services Office of Inspector General is employing registered nurses to monitor the accuracy of the MDS assessment submitted by Medicaid-certified nursing facilities. Therefore, the agency declines to make the change at this time.

Comment: Two commenters requested the Medicaid Nursing Facility rules be updated to be consistent with current practice of advanced practice nurses (APNs) in nursing facilities. Concerning §19.101(84), one of the commenters recommended that clinical nurse specialist be included in the definition of nurse practitioner because the commenter is concerned the current definition may be interpreted to exclude other types of advanced practice nurses.

Response: The purpose of the amendments to the rules is to implement the change from TILEs to RUGs. Other changes would require additional time to review to determine the impact on the entire chapter and possibly to provide opportunity for input from other interested parties. While the suggested changes may be appropriate to consider at a later date, DADS believes it is necessary to implement the TILEs to RUGs change as soon as possible. The suggested change to §19.101(84) is outside the scope of the changes being made to implement the TILEs to RUGs transition in Medicaid nursing facilities. Therefore, the agency declines to make the change at this time.

Comment: Concerning §19.101(100), one commenter recommended that "physician, dentist, or podiatrist," be replaced with "practitioner" in the definition of pharmacist.

Response: The agency believes that references to delegation should be revised throughout the chapter rather than just the sections affected by the TILEs to RUGs transition. Therefore, the agency declines to make the suggested change at this time.

Comment: Concerning §19.101(111), one commenter recommended deleting "rectify substandard care and deficient facility practice" and replacing it with "enhance care and facility practice" regarding the quality assessment and assurance committee.

Response: The purpose of the amendments to the rules is to implement the change from TILEs to RUGs. Other changes would require additional time to review to determine the impact on the entire chapter and possibly to provide opportunity for input from other interested parties. While the suggested changes may be appropriate to consider at a later date, DADS believes it is necessary to implement the TILEs to RUGs change as soon as possible. The suggested change to §19.101(111) is outside the scope of the changes being made to implement the TILEs to RUGs transition in Medicaid nursing facilities. Therefore, the agency declines to make the change at this time.

Comment: Concerning §19.101(138), one commenter recommended that "provides general supervision of" be deleted and replaced with "delegates prescriptive authority" in the definition of "supervising physician," with regard to a nurse practitioner providing services in the nursing facility.

Comment: Concerning §19.1210, one commenter recommended that this rule be revised to allow a nurse practitioner and a clinical nurse specialist to certify and recertify the need for nursing facility care in addition to the physician.

Response: The purpose of the amendments to the rules is to implement the change from TILEs to RUGs. Other changes would require additional time to review to determine the impact on the entire chapter and possibly to provide opportunity for input from other interested parties. While the suggested changes may be appropriate to consider at a later date, DADS believes it is necessary to implement the TILEs to RUGs change as soon as possible. The suggested change to §19.1210 is outside the scope of the changes being made to implement the TILEs to RUGs transition in Medicaid nursing facilities. Therefore, the agency declines to make the change at this time.

Comment: Concerning §19.1911(b)(8), one commenter recommended that "physician" be deleted and replaced with "medical" because nursing facilities create policies that only physicians may write discharge summaries.

Response: The purpose of the amendments to the rules is to implement the change from TILEs to RUGs. Other changes would require additional time to review to determine the impact on the entire chapter and possibly to provide opportunity for input from other interested parties. While the suggested changes may be appropriate to consider at a later date, DADS believes it is necessary to implement the TILEs to RUGs change as soon as possible. The suggested change to §19.1911(b)(8) is outside the scope of the changes being made to implement the TILEs to RUGs transition in Medicaid nursing facilities. Therefore, the agency declines to make the change at this time.

Comment: Concerning §19.1911(b)(11), one commenter recommended that "physician" be deleted and replaced with "practitioner" with regard to signed and dated orders.

Comment: Concerning §19.1911(b)(13)(vi), one commenter recommended that "physician" be deleted and replaced with "practitioner" with regard to orders for snacks for dietary intake.

Comment: Concerning §19.2401(2)(A), one commenter recommended that "nurse practitioner" be added to allow a nurse practitioner to order medical and nursing services needed to verify medical necessity.

Response: The purpose of the amendments to the rules is to implement the change from TILEs to RUGs. Other changes would require additional time to review to determine the impact on the entire chapter and possibly to provide opportunity for input from other interested parties. While the suggested changes may be appropriate to consider at a later date, DADS believes it is necessary to implement the TILEs to RUGs change as soon as possible. The suggested change to §19.2401(2)(A) is outside the scope of the changes being made to implement the TILEs to RUGs transition in Medicaid nursing facilities. Therefore, the agency declines to make the change at this time.

Comment: Concerning §19.2500(a)(15), one commenter recommended adding language to more clearly specify "licensed" registered nurses or licensed vocational nurses are included in the definition of medical staff in addition to staff licensed to practice medicine.

Response: The purpose of the amendments to the rules is to implement the change from TILEs to RUGs. Other changes would require additional time to review to determine the impact on the entire chapter and possibly to provide opportunity for input from other interested parties. While the suggested changes may be appropriate to consider at a later date, DADS believes it is necessary to implement the TILEs to RUGs change as soon as possible. The suggested change to §19.2500(a)(15) is outside the scope of the changes being made to implement the TILEs to RUGs transition in Medicaid nursing facilities. Therefore, the agency declines to make the change at this time.

Comment: Concerning §19.2407(a), one commenter recommended adding the "applicant or recipient and the applicant's or recipient's responsible party" in addition to the attending physician and the nursing facility when a determination is made to deny medical necessity and provide an opportunity to present additional information about the applicant's or recipient's medical need for nursing facility care.

Response: The agency has determined this change to §19.2407(a) is not required because the notification of the attending physician is to allow the attending physician to supply more information about the applicant's or recipient's medical need for nursing facility care. Therefore, the agency declines to make the change at this time.

Comment: Concerning §19.2407(a)(1), one commenter recommended adding "subject to right of the applicant, applicant's responsible party, recipient, or recipient's responsible party, to request a fair hearing."

Response: The agency has determined this change to §19.2407(a)(1) is not required because §19.2407(b) and (c) describe what the applicant or responsible party, or recipient or responsible party, must do to request a fair hearing. Therefore, the agency declines to make the change at this time.

Comment: Concerning §19.2407(a)(2), one commenter recommended adding "applicant, applicant's responsible party, recipient, or recipient's responsible party" in addition to the attending physician and nursing facility physician for the purpose of contesting the finding of the state Medicaid claims administrator. Additionally, the commenter recommended adding "subject to right of the applicant, applicant's responsible party, recipient, or recipient's responsible party, to request a fair hearing" to the state Medicaid claims administrator making a final determination that the applicant or recipient's admission or stay is not medically necessary.

Response: The agency has determined this change to §19.2407(a)(2) is not required because §19.2407(b) and (c) describe what the applicant or responsible party, or recipient or responsible party, must do to request a fair hearing. Therefore, the agency declines to make the change at this time.

Comment: Concerning 40 TAC §19.2413(f), one commenter recommended adding "within 31 days" for MDS assessments not on time and "without penalty" when payment resumes.

Response: The agency has determined that the rule is clear that a calculated rate is paid if the MDS assessment is received within the federal MDS submission schedule. DADS does not believe that "without penalty" is necessary because no penalty is applied to the payment. Therefore, the agency declines to make the change at this time.

Comment: Concerning 40 TAC §19.2413(g), one commenter recommended adding "On time assessments and missed assessments are not the same" and "over 92 days" to clarify that it is a missed assessment received by the state Medicaid claims administrator.

Response: The agency has determined that adding "On time assessments and missed assessments are not the same" and "over 92 days" is not appropriate because On-time MDS assessment is defined at §19.2413(a)(2) and Missed MDS assessment is defined at §19.2413(a)(3). Therefore, the agency declines to make the change at this time.

Comment: Concerning §19.2413(i), one commenter recommended adding "due to an abbreviated stay where a RUG cannot be established" regarding DADS payment of a default rate for an MDS assessment that is incomplete or has errors.

Response: The agency has determined that adding "due to an abbreviated stay where a RUG cannot be established" is not appropriate because any MDS assessment that does not provide a calculated RUG does not provide the information regarding which RUG rate DADS will pay. For an MDS assessment that is incomplete or has errors, resulting in that MDS assessment not calculating a RUG, DADS will pay a default rate if all conditions of eligibility are met. In this situation, the nursing facility must submit a significant correction that provides the necessary information to calculate a RUG and allows DADS to pay a RUG rate other than the default rate.

SUBCHAPTER B. DEFINITIONS

40 TAC §19.101

The amendment is adopted under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including DADS; Texas Human Resources Code, §161.021, which provides that the Aging and Disability Services Council shall study and make recommendations to the HHSC executive commissioner and the DADS commissioner regarding rules governing the delivery of services to persons who are served or regulated by DADS; 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.

§19.101.Definitions.

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

(1) Abuse--Any act, failure to act, or incitement to act done willfully, knowingly, or recklessly through words or physical action which causes or could cause mental or physical injury or harm or death to a resident. This includes verbal, sexual, mental/psychological, or physical abuse, including corporal punishment, involuntary seclusion, or any other actions within this definition.

(A) "Involuntary seclusion"--Separation of a resident from others or from his room against the resident's will or the will of the resident's legal representative. Temporary monitored separation from other residents will not be considered involuntary seclusion and may be permitted if used as a therapeutic intervention as determined by professional staff and consistent with the resident's plan of care.

(B) "Mental/psychological abuse"--Mistreatment within the definition of "abuse" not resulting in physical harm, including, but not limited to, humiliation, harassment, threats of punishment, deprivation, or intimidation.

(C) "Physical abuse"--Physical action within the definition of "abuse," including, but not limited to, hitting, slapping, pinching, and kicking. It also includes controlling behavior through corporal punishment.

(D) "Sexual abuse"--Any touching or exposure of the anus, breast, or any part of the genitals of a resident without the voluntary, informed consent of the resident and with the intent to arouse or gratify the sexual desire of any person and includes but is not limited to sexual harassment, sexual coercion, or sexual assault.

(E) "Verbal abuse"--The use of any oral, written, or gestured language that includes disparaging or derogatory terms to a resident or within the resident's hearing distance, regardless of the resident's age, ability to comprehend, or disability.

(2) Act--Chapter 242 of the Health and Safety Code.

(3) Activities assessment--See Comprehensive Assessment and Comprehensive Care Plan.

(4) Activities director--The qualified individual appointed by the facility to direct the activities program as described in §19.702 of this title (relating to Activities).

(5) Addition--The addition of floor space to an institution.

(6) Administrator--Licensed nursing facility administrator.

(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.

(8) Affiliate--With respect to a:

(A) partnership, each partner thereof;

(B) corporation, each officer, director, principal stockholder, and subsidiary; and each person with a disclosable interest;

(i) person's spouse;

(ii) partnership and each partner thereof of which said person or any affiliate of said person is a partner; and

(iii) corporation in which said person is an officer, director, principal stockholder, or person with a disclosable interest.

(9) Agent--An adult to whom authority to make health care decisions is delegated under a durable power of attorney for health care.

(10) Applicant--A person or governmental unit, as those terms are defined in the Health and Safety Code, Chapter 242, applying for a license under that chapter.

(11) APA--The Administrative Procedure Act, Texas Government Code, Chapter 2001.

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

(13) Authorized electronic monitoring--The placement of an electronic monitoring device in a resident's room and using the device to make tapes or recordings after making a request to the facility to allow electronic monitoring.

(14) Barrier precautions--Precautions including the use of gloves, masks, gowns, resuscitation equipment, eye protectors, aprons, faceshields, and protective clothing for purposes of infection control.

(15) 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.

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

(17) CFR--Code of Federal Regulations.

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

(19) 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) 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) 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) 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) 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) 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) DADS--The Department of Aging and Disability Services.

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

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

(29) Department--Department of Aging and Disability Services.

(30) 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) 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) 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) Distinct part--That portion of a facility certified to participate in the Medicaid Nursing Facility program.

(34) 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) 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) Emergency--A sudden change in a resident's condition requiring immediate medical intervention

(37) 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) 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) 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.

(40) Family council--A group of family members, friends, or legal guardians of residents, who organize and meet privately or openly.

(41) Family representative--An individual appointed by the resident to represent the resident and other family members, by formal or informal arrangement.

(42) Fiduciary agent--An individual who holds in trust another's monies.

(43) Free choice--Unrestricted right to choose a qualified provider of services.

(44) 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.

(45) Governmental unit--A state or a political subdivision of the state, including a county or municipality.

(46) HCFA--Health Care Financing Administration, now the Centers for Medicare & Medicaid Services (CMS).

(47) 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.

(48) 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.

(49) HIV--Human Immunodeficiency Virus.

(50) 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.

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

(52) 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.

(53) Interdisciplinary care plan--See the definition of "comprehensive care plan."

(54) IV--Intravenous.

(55) 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.

(56) 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.

(57) Licensed nursing home (facility) administrator--A person currently licensed by DADS in accordance with Chapter 18 of this title (relating to Nursing Facility Administrators).

(58) Licensed vocational nurse (LVN)--A nurse who is currently licensed by the Texas Board of Nursing as a licensed vocational nurse.

(59) 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).

(60) 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.

(61) Life support--Use of any technique, therapy, or device to assist in sustaining life. (See §19.419 of this title (relating to Advance Directives)).

(62) 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.

(63) 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.

(64) 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.

(65) Manager--A person, other than a licensed nursing home administrator, having a contractual relationship to provide management services to a facility.

(66) 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.

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

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

(69) Medicaid applicant--A person who requests the determination of eligibility to become a Medicaid recipient.

(70) Medicaid nursing facility vendor payment system--Electronic billing and payment system for reimbursement to nursing facilities for services provided to eligible Medicaid recipients.

(71) Medicaid recipient--A person who meets the eligibility requirements of the Title XIX Medicaid program, is eligible for nursing facility services, and resides in a Medicaid- participating facility.

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

(73) 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.

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

(75) Medical-social care plan--See Interdisciplinary Care Plan.

(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.

(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) 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.

(79) 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.

(80) NHIC--Formerly, this term referred to the National Heritage Insurance Corporation. It now refers to the state Medicaid claims administrator.

(81) 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.

(82) 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.

(83) Nurse aide trainee--An individual who is attending a program teaching nurse aide skills.

(84) Nurse practitioner--A person licensed by the Texas Board of Nursing as a registered professional nurse, authorized by the Texas Board of Nursing as an advanced practice nurse in the role of nurse practitioner.

(85) Nursing assessment--See definition of "comprehensive assessment" and "comprehensive care plan."

(86) 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.

(87) 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.

(88) Nursing facility/home administrator--See the definition of "licensed nursing home (facility) administrator."

(89) 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.

(90) Objectives--See definition of "goals."

(91) OBRA--Omnibus Budget Reconciliation Act of 1987, which includes provisions relating to nursing home reform, as amended.

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

(93) 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.

(94) 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.

(95) PASARR--Preadmission Screening and Resident Review.

(96) 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.

(97) 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.

(98) 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.

(99) 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.

(100) 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.

(101) Physical restraint--See Restraints (physical).

(102) Physician--A doctor of medicine or osteopathy currently licensed by the Texas Medical Board.

(103) 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;

(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.

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

(105) 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.

(106) 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.

(107) PRN (pro re nata)--As needed.

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

(109) Psychoactive drugs--Drugs prescribed to control mood, mental status, or behavior.

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

(111) 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.

(112) 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.

(113) 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.

(114) Registered nurse (RN)--An individual currently licensed by the Texas Board of Nursing as a Registered Nurse in the State of Texas.

(115) Reimbursement methodology--The method by which HHSC determines nursing facility per diem rates.

(116) 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.

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

(118) 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.

(119) Resident--Any individual residing in a nursing facility.

(120) 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).

(121) Resident group--A group or council of residents who meet regularly to:

(A) discuss and offer suggestions about the facility policies and procedures affecting residents' care, treatment, and quality of life;

(B) plan resident activities;

(D) for any other purpose.

(122) 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.

(123) 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.

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

(125) 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.

(126) 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.

(127) 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.

(128) Seclusion--See the definition of "involuntary seclusion" in paragraph (1)(A) of this section.

(129) Secretary--Secretary of the U.S. Department of Health and Human Services.

(130) 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.

(131) 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.

(132) 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.

(133) 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, 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.

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

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

(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.

(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.

(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 Board 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.

(139) Supervision--General supervision, unless otherwise identified.

(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.

(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.

(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) 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.

(144) 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.

(145) 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.

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

(147) Title II--Federal Old-Age, Survivors, and Disability Insurance Benefits of the Social Security Act.

(148) Title XVI--Supplemental Security Income (SSI) of the Social Security Act.

(149) Title XVIII--Medicare provisions of the Social Security Act.

(150) Title XIX--Medicaid provisions of the Social Security Act.

(151) 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.

(152) UAR--HHSC's Utilization and Assessment Review Section.

(153) Uniform data set--See Resident Assessment Instrument (RAI).

(154) 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.

(155) 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. 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.

(156) Working day--Any 24-hour period, Monday through Friday, excluding state and federal holidays.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 12, 2008.

TRD-200804337

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Effective date: September 1, 2008

Proposal publication date: April 18, 2008

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

SUBCHAPTER M. PHYSICIAN SERVICES

40 TAC §19.1210

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 12, 2008.

TRD-200804338

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Effective date: September 1, 2008

Proposal publication date: April 18, 2008

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

40 TAC §19.1212

The repeal is adopted under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including DADS; Texas Human Resources Code, §161.021, which provides that the Aging and Disability Services Council shall study and make recommendations to the HHSC executive commissioner and the DADS commissioner regarding rules governing the delivery of services to persons who are served or regulated by DADS; 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.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 12, 2008.

TRD-200804339

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Effective date: September 1, 2008

Proposal publication date: April 18, 2008

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

SUBCHAPTER T. ADMINISTRATION

40 TAC §19.1911, §19.1926

The amendments are adopted under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including DADS; Texas Human Resources Code, §161.021, which provides that the Aging and Disability Services Council shall study and make recommendations to the HHSC executive commissioner and the DADS commissioner regarding rules governing the delivery of services to persons who are served or regulated by DADS; 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.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 12, 2008.

TRD-200804340

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Effective date: September 1, 2008

Proposal publication date: April 18, 2008

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

SUBCHAPTER X. REQUIREMENTS FOR MEDICAID-CERTIFIED FACILITIES

40 TAC §19.2302, §19.2326

§19.2302.Requirements for a Contracted Medicaid Facility.

(a) This section applies to nursing facilities (NFs) that have been licensed and certified as eligible for participation under Title XIX.

(b) Each nursing facility (NF) must comply with the state requirements for participation and the facility's contract on a continuing basis.

(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 Assessments) and §371.214 (relating to Resource Utilization Group Classification System).

(d) A facility may not participate in the Texas Medical Assistance Program if it has restrictive policies or practices, including:

(1) requiring the resident to make a will, with the facility named as legatee or devisee;

(2) requiring the resident to assign his life insurance to the facility;

(3) requiring the resident to transfer property to the facility;

(4) requiring the resident to pay a lump sum entrance fee or make any other payment or concession to the facility beyond the recognized rate for board, room, and care as a condition for entry, departure, or continued stay;

(5) controlling or restricting the resident, the resident's guardian, or responsible party in the use of the resident's personal needs allowance;

(6) restricting the resident from leaving the facility at will except as provided by state law;

(7) restricting the resident from applying for Medicaid for a specified period of time;

(8) denying appropriate care to an individual on the basis of his race, religion, color, national origin, sex, age, disability, marital status, or source of payment; and

(9) preventing terminally ill adult residents from exercising their will in making written or unwritten directives to reject life-sustaining procedures.

(e) If DADS 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 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.

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

(h) Facilities must allow representatives of DADS, 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.

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

(1) each person who directly or indirectly owns interest of 5% or more in the facility;

(2) each owner (in whole or in part) of any property, assets, mortgage, deed of trust, note, or other obligation secured by the facility;

(3) each officer and director, if the facility is organized as a corporation;

(4) each partner, if the facility is organized as a partnership (A copy of the partnership agreement is required, but the dollar amount of capital contributions of the partners may be omitted); and

(5) any director, officer, agency, or managing employee of the institution, agency, or organization, who has ever been convicted of a criminal offense related to the person's involvement in programs established by Title XVIII, XIX, and XX (Effective dates for disclosure of any convictions are July 1, 1966, for Medicare, and January 1, 1969, for Medicaid.)

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

(1) certificate of incorporation (for Texas corporations only);

(2) certificate of authority to do business in Texas (for out-of-state corporations only);

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

(4) any management contract for the facility. If no stockholder owns, directly or beneficially, 5.0% or more of the corporate stock, the president and secretary of the corporation should state this on the department form.

(k) If a nonprofit corporation operates the facility, a copy of the following material is required:

(1) certificate of incorporation (for Texas corporations only);

(2) certificate of authority to do business in Texas (for out-of-state corporations only);

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

(4) a copy of any management contract for the facility.

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

(1) charter or other legal basis for the organization which owns the facility;

(2) any management contract or agreement for the facility;

(3) by-laws of the organization (if applicable); and

(4) other information required by DADS 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, within 35 days after the date of a written request, complete information on:

(1) the ownership of a subcontractor with whom the facility has had, during the previous 12 months, business transactions totaling more than $25,000; and

(2) any business transactions between the facility and any wholly owned supplier, or between the facility and any subcontractor during the five-year period ending on the date of the request.

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

(o) Failure to provide this information may result in suspension, termination, or other contract action, including 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.

(p) Each facility must comply with Government Code, §531.116. A facility that furnishes services under the Medicaid program is subject to Occupations Code, Chapter 102. The facility's compliance with that chapter is a condition of the facility's eligibility to participate as a facility under those programs.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 12, 2008.

TRD-200804341

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Effective date: September 1, 2008

Proposal publication date: April 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

The new sections are adopted under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including DADS; Texas Human Resources Code, §161.021, which provides that the Aging and Disability Services Council shall study and make recommendations to the HHSC executive commissioner and the DADS commissioner regarding rules governing the delivery of services to persons who are served or regulated by DADS; 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.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 12, 2008.

TRD-200804342

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Effective date: September 1, 2008

Proposal publication date: April 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

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 12, 2008.

TRD-200804343

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Effective date: September 1, 2008

Proposal publication date: April 18, 2008

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

SUBCHAPTER Z. PREADMISSION SCREENING AND RESIDENT REVIEW (PASARR)

40 TAC §19.2500

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

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

(1) Acute inpatient care--An acute institutional setting that provides medical care, such as a hospital, but does not include inpatient psychiatric care.

(2) Alzheimer's disease--A degenerative disease of the central nervous system as diagnosed by a physician in accordance with the International Classification of Diseases 9th Revision Clinical Modification (ICD-9-CM).

(3) Amyotrophic lateral sclerosis--A degenerative motor neuron disease as diagnosed by a physician in accordance with International Classification of Diseases 9th Revision Clinical Modification (ICD-9-CM).

(4) Anencephaly--A developmental anomaly with absence of neural tissue in the cranium.

(5) Chronic obstructive pulmonary disease--A disease of the respiratory system as diagnosed by a physician in accordance with the International Classification of Diseases 9th Revision Clinical Modification (ICD-9-CM).

(6) Comatose--A state of unconsciousness characterized by the inability to respond to sensory stimuli as certified by a physician.

(7) Congestive heart failure--A disease of the circulatory system as diagnosed by a physician in accordance with International Classification of Diseases, 9th Revision Clinical Modification (ICD-9-CM).

(8) Convalescent care--Care provided after a person's release from an acute care hospital that is part of a medically prescribed period of recovery which does not exceed 120 days.

(9) Dementia--A degenerative disease of the central nervous system as diagnosed by a physician in accordance with the International Classification of Diseases 9th revision Clinical Modification (ICD-9-CM).

(10) Functioning at the brain stem level--A significantly impaired state of consciousness characterized by normal respirations and minimal (mostly reflexive) response to environmental stimuli as certified by a physician.

(11) Huntington's disease--A disease of the central nervous system diagnosed by a physician in accordance with the International Classification of Diseases 9th Revision Clinical Modification (ICD-9-CM).

(12) Legal representative--The parent of a minor child, the legal guardian, or the surrogate decision maker of the applicant or the resident of a nursing facility.

(13) Level I--identification screening--The process of identifying individuals with an indication of mental illness, mental retardation and/or a related condition, who require a Level II PASARR assessment.

(14) Level II--PASARR assessment--Preadmission Screening and Resident Review assessment of persons with mental illness, mental retardation, and/or a related condition conducted in accordance with 42 United States Code Annotated, §1396r.

(15) Medical staff--Any staff licensed to practice medicine, such as a physician, registered nurse, or a licensed vocational nurse.

(16) Mental illness--A mental disorder is a schizophrenic, mood, paranoid, panic, or other severe anxiety disorder; somatoform disorder; personality disorder; other psychotic disorder; or another mental disorder that may lead to a chronic disability and does not have a primary diagnosis of dementia (including Alzheimer's disease or a related disorder). The disorder results in functional limitations in major life activities within the past three to six months that would be appropriate for the individual's developmental stage. The individual typically has at least one of the following characteristics on a continuing or intermittent basis: serious difficulty in the areas of interpersonal functioning; and/or concentration, persistence, and/or pace; and/or adaptation to change. Within the past two years, the disorder has required psychiatric treatment more than one time and more intensive than outpatient care and/or the individual has experienced an episode of significant disruption to the normal living situation for which supportive services were required to maintain functioning at home or in a residential treatment environment or which resulted in intervention by housing or law enforcement officials.

(17) Mental retardation--A diagnosis of mental retardation (mild, moderate, severe, and profound) and significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the developmental period.

(18) New admission--An individual who is admitted to any nursing facility in which he has not recently resided and to which he cannot qualify as a readmission.

(19) Nursing facility--A Texas Medicaid-certified institution, except for a facility certified as an intermediate care facility for persons with mental retardation or related conditions (ICF/MR/RC), providing nursing services to nursing facility residents.

(20) Nursing facility applicant--An individual seeking admission to a Texas Medicaid-certified nursing facility.

(21) Nursing facility resident--An individual who resides in a Texas Medicaid-certified nursing facility and receives services provided by professional medical nursing personnel of the facility.

(22) QMHP--Qualified Mental Health Professional. An individual who has at least one year of experience working with persons with mental illness.

(23) QMRP--Qualified Mental Retardation Professional. An individual who has at least one year experience working with persons with mental retardation and/or a related condition.

(24) Parkinson's Disease--A degenerative disease of the central nervous system as diagnosed by a physician in accordance with the Classification of Diseases 9th Revision Clinical Modification (ICD-9-CM).

(25) PASARR--Preadmission screening and resident review.

(26) PASARR determination--A decision made by DADS or its designee 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) Readmission--An individual who is readmitted to a nursing facility from a hospital to which he or she was transferred for the purpose of receiving care.

(28) Related condition--A severe, chronic disability as defined in 42 Code of Federal Regulations §435.1009, in the definition of persons with related conditions, that meets all of the following conditions:

(A) it is attributable to:

(i) cerebral palsy or epilepsy; or

(ii) any other condition including autism, but excluding mental illness, found to be closely related to mental retardation because this condition results in impairment of general intellectual functioning or adaptive behavior similar to that of persons with mental retardation, and requires treatment or services similar to those required for these persons.

(B) it is manifested before the person reaches age 22.

(D) it results in substantial functional limitations in three or more of the following areas of major life activity:

(i) self-care;

(ii) understanding and use of language;

(iii) learning;

(iv) mobility;

(v) self-direction; and

(vi) capacity for independent living.

(29) Specialized services for individuals with mental illness--The implementation of an individualized plan of care developed under and supervised by an Interdisciplinary Team, which includes a physician, and other qualified mental health professionals, that prescribes specific therapies and activities for the treatment of persons who are experiencing an acute episode of severe mental illness, which necessitates supervision by trained mental health personnel.

(30) Specialized services for individuals with mental retardation or a related condition--A continuous program for each resident, 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 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 who are able to function with little supervision or in the absence of a continuous specialized services program.

(31) Substantial risk of serious harm to self and/or others--Harm which may be demonstrated either by a person's behavior or by evidence of severe emotional distress and deterioration in his mental condition to the extent that the person cannot remain at liberty, as determined by a court of law.

(32) Terminal illness--As defined for hospice purposes in 42 Code of Federal Regulations §418.3 in the definition of terminally ill.

(33) Ventilator dependent--Reliance upon a respirator or respiratory ventilator as a life support system to assist with breathing.

(b) Preadmission screenings.

(1) Purpose. All new admissions (private pay, Medicare beneficiaries, and Medicaid recipients) must be screened prior to admission to a nursing facility to determine if:

(A) the individual has mental illness (MI), mental retardation (MR), and/or a related condition (RC);

(B) the individual needs nursing facility services, as defined by medical necessity; and

(2) Readmissions. The following individuals are not subject to preadmission screenings:

(A) readmissions following hospitalizations;

(B) individuals who:

(i) are admitted to the nursing facility directly from a hospital after receiving acute inpatient care at the hospital;

(ii) require nursing facility services for the condition for which the individual received care in the hospital; and

(iii) have been certified by their attending physician prior to admission to the nursing facility that they are likely to require less than 30 days of nursing facility services;

(C) individuals who have a terminal illness as defined for hospice purposes in 42 Code of Federal Regulations §418.3, in the definition of terminally ill; and

(D) residents who:

(i) transfer from their current nursing facility residence to a new nursing facility residence;

(ii) have not had any interruption in continuous nursing facility residence other than for acute care hospitalization; and

(iii) have not had any change in their mental condition. For residents who transfer from one nursing facility to another, the transferring nursing facility is responsible for ensuring copies of the most recent PASARR assessment accompany the transferring resident.

(3) Level I Identification Screening. Individuals who are suspected of having mental illness, mental retardation, or a related condition (MI/MR/RC) are identified through the medical necessity screening process.

(A) Medical staff document for the presence of MI if the individual meets the following criteria:

(i) has a diagnosis of MI (excluding a primary diagnosis of Alzheimer's disease or dementia);

(ii) has a level of impairment that results in functional limitations in major life activities within the past three to six months in the areas of interpersonal functioning, concentration, persistence, pace and/or adaptation to change; and

(iii) within the last two years, due to the mental disorder, has had psychiatric treatment more intensive than outpatient care more than once and/or experienced an episode of significant disruption to the normal living situation, for which supportive services were required to maintain functioning at home, or in a residential treatment environment, or which resulted in intervention by housing or law enforcement officials.

(B) Medical staff document for the presence of MR and/or RC if the individual:

(i) has a diagnosis of MR and/or RC;

(ii) has any history of MR and/or RC identified in the past; or

(iii) presents any evidence (cognitive or behavioral functioning) that may indicate the presence of MR and/or a RC.

(C) Identification of MI, MR, or RC requires that an individual receive a Level II assessment prior to admission to a nursing facility.

(D) An individual, who has medical necessity, may be immediately admitted to or continue residing in a nursing facility if:

(i) MI, MR, or RC was substantiated in writing;

(ii) an individual is in the nursing facility for convalescent care;

(iii) an individual is comatose, functioning at the brain stem level, ventilator dependent, terminally ill, or has a serious medical condition such as chronic obstructive pulmonary disease, anencephaly, Parkinson's disease, Huntington's disease, amytrophic lateral sclerosis, and congestive heart failure which result in an impairment so severe that the individual could not be expected to benefit from specialized services;

(iv) an individual has a primary diagnosis of dementia and is not MR and/or RC;

(v) an individual has Alzheimer's disease and no other diagnosis of MR and/or RC;

(vi) an individual is determined by DADS or its designee during the Level II Assessment process not to have MI/MR/RC.

(4) Level II--PASARR assessment. DADS or its designee assesses the need for nursing facility and specialized services.

(A) The assessment process consists of a:

(i) PASARR preadmission assessment; and

(ii) Level II--PASARR assessment.

(B) Depending on the mental and/or physical condition, an assessment is conducted by one or more of the following:

(i) a registered nurse who is a qualified mental health professional;

(ii) a registered nurse who is a qualified mental retardation professional; and

(iii) a psychologist who is a qualified mental retardation professional with at least a Master's degree; and

(iv) other qualified mental health professionals.

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

(1) The nursing facility will promptly notify DADS or its designee 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 a review, as described in subsection (b)(4) of this section, and makes a determination, as described in subsection (d) of this section.

(3) DADS or its designee must evaluate and contact the attending physician when there is a question regarding a resident'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 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 (relating to Documentation for the Delegation of Long-Term Care Resident's Rights).

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

(i) no surrogate decision maker is available; or

(ii) there is a question regarding capacity, but the resident does not meet the criteria for a surrogate decision maker under §19.420(a)(3) of this chapter.

(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 of this chapter (relating to General Qualifications for Medical Necessity Determinations).

(B) An individual requires specialized services for mental illness. The presence of verbalizations or behaviors which indicate a person may pose a substantial risk of serious harm to self or others is evidence that the person requires specialized services.

(C) An individual requires specialized services for mental retardation or a related condition. A response by a person to the environment is evidence that the person requires specialized services.

(2) One of the following determinations is made:

(A) Nursing facility services are needed, but specialized services are not needed. Those individuals may be admitted to or continue residing in a nursing facility.

(B) Nursing facility services are needed and specialized services are needed. Those individuals may be admitted to or continue residing in a nursing facility and receive specialized services within the facility.

(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) of this subsection. 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 (relating to Transfer and Discharge in Medicaid-certified Facilities).

(3) If a nursing facility resident has 30 or more months of continuous residence in a nursing facility preceding the PASARR determination, the resident may choose to remain and receive specialized services in the nursing facility, or seek alternate placement.

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

(5) DADS or its designee notifies all individuals and their legal representative or surrogate decision maker (SDM) of the results of their PASARR determination through a letter sent to them, the nursing facility administrator, the attending physician, the local mental retardation authority (MRA) or local mental health authority (MHA) as applicable, the Office of the State Long-Term Care Ombudsman, and Texas Health and Human Services Commission (HHSC) Medicaid eligibility staff. Individuals who have undergone a preadmission screening or change in condition are 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 to receive a fair hearing according to 1 TAC Chapter 357.

(A) If the hearing officer reverses DADS' or its designee'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 the hearing officer sustains DADS' or its designee'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 local MRA to provide service coordination, case management, specialized services, and alternate placement services for persons with mental retardation determined by DADS or its designee 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 be assigned for those residents who require specialized services and/or request alternate placement.

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

(4) An interdisciplinary team is 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 provide a monthly written report 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 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 be coordinated and integrated for maximum benefit to the resident. A nursing facility must allow for the MRA or MHA, as applicable, 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 that includes:

(A) general responsibilities of the facility and the provider for delivering the appropriate and mutually supportive services to those residents requiring specialized services for their MI/MR/RC;

(B) a provision allowing the MRA staff or MHA 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 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 during each resident's specialized services planning.

(8) The service coordinator 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 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, other written report, and documented telephone contacts:

(A) efforts to resolve the differences between the specialized services plan and the comprehensive care plan;

(B) specialized services objectives;

(D) changes and modification to the plan.

(10) The facility must ensure that all residents who may benefit from specialized services are identified.

(11) If a resident 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, shall locate alternate placement in consultation with the resident or his legal representative.

(B) The resident, his legal representative, or SDM must approve the alternate placement.

(C) If the resident, the legal representative, or SDM refuse all alternate placement options, the resident may remain in the nursing facility and receive specialized services there until an acceptable option is found.

(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, shall locate alternate placement in consultation with the resident, his legal representative, or SDM.

(B) The resident, his legal representative, or SDM must approve the alternate placement.

(C) Until the resident, his legal representative, or SDM approves an alternate placement, the resident may remain in the nursing facility and receive specialized services.

(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.

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

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 14, 2008.

TRD-200804374

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Effective date: September 3, 2008

Proposal publication date: April 18, 2008

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

SUBCHAPTER AA. VENDOR PAYMENT

40 TAC §§19.2609, 19.2611, 19.2615

The amendment and new sections are adopted under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including DADS; Texas Human Resources Code, §161.021, which provides that the Aging and Disability Services Council shall study and make recommendations to the HHSC executive commissioner and the DADS commissioner regarding rules governing the delivery of services to persons who are served or regulated by DADS; 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.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 14, 2008.

TRD-200804375

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Effective date: September 3, 2008

Proposal publication date: April 18, 2008

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

SBUCHAPTER E. RESIDENT RIGHTS

40 TAC §19.413

The Health and Human Services Commission (HHSC), on behalf of the Department of Aging and Disability Services (DADS), adopts an amendment to §19.413, in Chapter 19, Nursing Facility Requirements for Licensure and Medicaid Certification, without changes to the proposed text published in the April 18, 2008, issue of the Texas Register (33 TexReg 3189).

The amendment is adopted 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 amendment ensures 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.

DADS received no comments regarding adoption of the amendment.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 11, 2008.

TRD-200804288

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Effective date: September 1, 2008

Proposal publication date: April 18, 2008

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

CHAPTER 30. MEDICAID HOSPICE PROGRAM

The Health and Human Services Commission (HHSC), on behalf of the Department of Aging and Disability Services (DADS), adopts amendments to §§30.14, 30.60, 30.62, and 30.92 in Chapter 30, Medicaid Hospice Program. The amendments to §30.60 and §30.92 are adopted with changes to the proposed text published in the April 18, 2008, issue of the Texas Register (33 TexReg 3191). The amendments to §30.14 and §30.62 are adopted without changes to the proposed text.

The amendments are adopted to implement rule changes necessitated by a project under the direction of HHSC that replaces 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 amendments are also adopted to update agency names and rule cross-references.

Two minor editorial changes were made to the text of §30.92 to clarify and improve the accuracy of the section. The changes update a reference to 1 TAC §371.212 and delete a reference to 1 TAC §371.213, which is being repealed by HHSC.

DADS received a written comment from the Coalition for Nurses in Advanced Practice. A summary of the comment and the response follows.

Comment: Concerning §30.60(b)(3), the commenter states that the Medicaid program currently reimburses more than one type of practitioner for physician services. In accordance with 1 TAC §354.1331 and §355.8281, nurse practitioners and clinical nurse specialists are two types of advanced practice nurses that should be reimbursed for services that would be reimbursed if provided by a physician. The commenter requests that the agency add "advance practice nurses" to §30.60(b)(3).

Response: The agency agrees and has added "physician assistants" and "advance practice nurses" to §30.60(b)(3).

SUBCHAPTER B. ELIGIBILITY REQUIREMENTS

40 TAC §30.14

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 12, 2008.

TRD-200804322

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Effective date: September 1, 2008

Proposal publication date: April 18, 2008

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

SUBCHAPTER F. REIMBURSEMENT

40 TAC §30.60, §30.62

§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) Routine home care. The hospice will be paid the routine home care rate for each day the recipient is at home, under the care of the hospice, and not receiving continuous home care. This rate is paid without regard to the volume or intensity of routine home care services provided on any given day.

(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 Department of Aging and Disability Services (DADS).

(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) A hospice recipient who receives hospice respite care in a nursing facility and returns home after the respite does not have to be in a Medicaid bed in the nursing facility.

(B) Respite care days are subject to the limitation on total hospice inpatient care days, as outlined in subsection (h) of this section.

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

(A) The Inpatient Care rate is paid for the date of admission and all subsequent inpatient days except day of discharge.

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

(D) Inpatient care days are subject to the limitation on total hospice inpatient care days, as outlined in subsection (h) of this section.

(b) Medicaid payments for physician services.

(1) The Medicaid Hospice Program makes payments to the Medicaid hospice provider for hospice physician services according to the customary and reasonable Texas Medicaid physician charges.

(2) The Medicaid Hospice Program does not pay when hospice physician services are provided by physicians who are not on staff with the Medicaid hospice provider or for independent contractors, who are under contract with the hospice.

(3) Payments for non-hospice physician services to Medicaid hospice recipients are made directly to physicians, physician assistants, or advanced practice nurses by Medicaid through DADS' claims processor.

(4) The Medicaid hospice provider must include physician services in the hospice plan of care and clinical records and must inform physicians on how to bill for services to hospice recipients.

(c) Medicaid hospice-nursing facility per diem rates. The Medicaid Hospice Program pays the Medicaid hospice provider a hospice-nursing facility rate that is 95% of the Medicaid nursing facility rate for each hospice recipient in a nursing facility to take into account the room and board furnished by the facility. When the hospice-nursing facility rate is paid to the hospice provider, Medicaid vendor payment to the nursing facility is not paid. Room and board services include performance of personal care services, including assistance in the activities of daily living, in socializing activities, administration of medication, maintaining the cleanliness of a resident's room, and supervision and assisting in the use of durable medical equipment and prescribed therapies.

(d) Medicaid hospice-intermediate care facilities for persons with mental retardation or related conditions (ICF/MR-RC) per diem rates. The Medicaid Hospice Program pays the Medicaid hospice provider a hospice-ICF/MR-RC rate that is 95% of the ICF/MR-RC rate for each hospice recipient in an ICF/MR-RC to take into account the room and board furnished by the facility. When the hospice-ICF/MR-RC rate is paid to the hospice provider, Medicaid vendor payment to the ICF/MR-RC is not paid. Room and board services include performance of personal care services, including assistance in the activities of daily living, in socializing activities, administration of medication, maintaining the cleanliness of a resident's room, and supervision and assisting in the use of durable medical equipment and prescribed therapies.

(e) Medicaid time limitations for DADS 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 the hospice recipient or applicant.

(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 received after the required date will have the stamp-in date as the effective date.

(f) Medicaid payments on Medicare coinsurance for drugs and biologicals. For Medicare-Medicaid recipients only, the Medicaid Hospice Program pays the Medicaid hospice provider a 5.0% coinsurance on prescription drugs and biologicals, not to exceed $5 per prescription.

(g) Medicaid payments for Medicare respite coinsurance. For Medicare-Medicaid recipients only, the Medicaid Hospice Program pays the hospice provider a 5.0% coinsurance for each day of respite care for up to five consecutive days of a hospice coinsurance period.

(h) Third-party resources. Medicaid pays only after all third-party resources have been used.

(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) The maximum allowable number of inpatient days is calculated by multiplying the total number of days of Medicaid hospice care by 0.2.

(2) If the total number of days of inpatient care furnished to Medicaid hospice patients is less than or equal to the maximum, no adjustment is necessary.

(3) If the total number of days of inpatient care exceeds the maximum allowable number, the limitation is determined by:

(A) calculating a ratio of the maximum allowable days to the number of actual days of inpatient care and multiplying this ratio by the total reimbursement for inpatient care (general inpatient and inpatient respite reimbursement) that was made;

(B) multiplying excess inpatient care days by the routine home care rate;

(D) comparing the amount in subparagraph (C) of this paragraph with interim payments made to the hospice inpatient care during the "cap period."

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

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 12, 2008.

TRD-200804323

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Effective date: September 1, 2008

Proposal publication date: April 18, 2008

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

SUBCHAPTER I. MEDICAL REVIEW AND RE-EVALUATION

40 TAC §30.92

§30.92.Minimum Data Set Assessment.

The Department of Aging and Disability Services adopts by reference 1 TAC §371.212 (relating to Minimum Data Set Assessments) and §371.214 (relating to Resource Utilization Group Classification System). Each hospice provider must comply with the Texas Health and Human Services Commission's utilization review requirements found at 1 TAC §371.212 and §371.214.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 12, 2008.

TRD-200804324

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Effective date: September 1, 2008

Proposal publication date: April 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), on behalf of the Department of Aging and Disability Services (DADS), adopts new §40.1 in Chapter 40, Use of General Revenue for Services Exceeding the Individual Cost Limit of a Waiver Program, without changes to the proposed text published in the April 18, 2008, issue of the Texas Register (33 TexReg 3194).

The new section is adopted 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.

DADS received no comments regarding adoption of the new section.

The new section is adopted under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including DADS; Texas Human Resources Code, §161.021, which provides that the Aging and Disability Services Council shall study and make recommendations to the HHSC executive commissioner and the DADS commissioner regarding rules governing the delivery of services to persons who are served or regulated by DADS; 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 limit of certain waiver programs operated by DADS.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 12, 2008.

TRD-200804308

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Effective date: September 1, 2008

Proposal publication date: April 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), on behalf of the Department of Aging and Disability Services (DADS), adopts amendments to §42.5 and §42.6, and the repeal of §42.12 in Chapter 42, Medicaid Waiver Program for People Who Are Deaf Blind with Multiple Disabilities, without changes to the proposed text published in the April 18, 2008, issue of the Texas Register (33 TexReg 3195).

The amendments and repeal are adopted 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 adopted 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.

DADS received no comments regarding adoption of the amendments and repeal.

40 TAC §42.5, §42.6

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

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 12, 2008.

TRD-200804309

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Effective date: September 1, 2008

Proposal publication date: April 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

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

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 12, 2008.

TRD-200804310

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Effective date: September 1, 2008

Proposal publication date: April 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), on behalf of the Department of Aging and Disability Services (DADS), adopts an amendment to §46.13 in Chapter 46, Contracting to Provide Assisted Living and Residential Care Services, without changes to the proposed text published in the April 18, 2008, issue of the Texas Register (33 TexReg 3199).

The amendment is adopted, 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 amendment is also adopted 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."

DADS received no comments regarding adoption of the amendment.

The amendment is adopted under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including DADS; Texas Human Resources Code, §161.021, which provides that the Aging and Disability Services Council shall study and make recommendations to the HHSC executive commissioner and the DADS commissioner regarding rules governing the delivery of services to persons who are served or regulated by DADS; 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.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 12, 2008.

TRD-200804320

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Effective date: September 1, 2008

Proposal publication date: April 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), on behalf of the Department of Aging and Disability Services (DADS), adopts amendments to §§46.21, 46.41, and 46.45 in Chapter 46, Contracting to Provide Assisted Living and Residential Care Services, without changes to the proposed text published in the April 18, 2008, issue of the Texas Register (33 TexReg 3200).

The amendments are adopted to implement rule changes necessitated by a project under the direction of HHSC that replaces 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 adopted amendments concern assisted living and residential care services offered under the CBA Program.

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

DADS received no comments regarding adoption of the amendments.

SUBCHAPTER B. PROVIDER CONTRACTS

40 TAC §46.21

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 12, 2008.

TRD-200804325

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Effective date: September 1, 2008

Proposal publication date: April 18, 2008

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

SUBCHAPTER C. PROVIDER REQUIREMENTS

40 TAC §46.41, §46.45

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 12, 2008.

TRD-200804326

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Effective date: September 1, 2008

Proposal publication date: April 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), on behalf of the Department of Aging and Disability Services (DADS), adopts an amendment to §48.2103, new §48.2106, and the repeal of §48.2123 in Chapter 48, Subchapter C, Community Living Assistance and Support Services (CLASS) Program, without changes to the proposed text published in the April 18, 2008, issue of the Texas Register (33 TexReg 3203).

The amendment, new section, and repeal are adopted 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 to §48.2103 is also adopted 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.

DADS received no comments regarding adoption of the amendment, new section, and repeal.

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

40 TAC §48.2103, §48.2106

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

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 12, 2008.

TRD-200804311

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Effective date: September 1, 2008

Proposal publication date: April 18, 2008

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

SUBCHAPTER C. MEDICAID WAIVER PROGRAM FOR PERSONS WITH RELATED CONDITIONS

40 TAC §48.2123

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

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 12, 2008.

TRD-200804312

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Effective date: September 1, 2008

Proposal publication date: April 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), on behalf of the Department of Aging and Disability Services (DADS), adopts amendments to §48.6003 and §48.6006, and the repeal of §48.6099 in Chapter 48, Subchapter J, Community Based Alternatives (CBA) Program, without changes to the proposed text published in the April 18, 2008, issue of the Texas Register (33 TexReg 3207).

The amendments and repeal are adopted 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 adopted 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.

DADS received no comments regarding adoption of the amendments and repeal.

SUBCHAPTER J. COMMUNITY BASED ALTERNATIVES (CBA) PROGRAM

40 TAC §48.6003, §48.6006

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

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 12, 2008.

TRD-200804313

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Effective date: September 1, 2008

Proposal publication date: April 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

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

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 12, 2008.

TRD-200804314

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Effective date: September 1, 2008

Proposal publication date: April 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), on behalf of the Department of Aging and Disability Services (DADS), adopts amendments to §§48.6021, 48.6022, and 48.6078 in Chapter 48, Community Care for Aged and Disabled, Subchapter J, Community Based Alternatives (CBA) Program, without changes to the proposed text published in the April 18, 2008, issue of the Texas Register (33 TexReg 3210).

The amendments are adopted to implement rule changes necessitated by a project under the direction of HHSC that replaces 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."

DADS received no comments regarding adoption of the amendments.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 12, 2008.

TRD-200804327

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Effective date: September 1, 2008

Proposal publication date: April 18, 2008

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

Chapter 50. §1915(c) CONSOLIDATED WAIVER PROGRAM

The Health and Human Services Commission (HHSC), on behalf of the Department of Aging and Disability Services (DADS), adopts amendments to §§50.4, 50.10, and 50.16, and the repeal of §50.48 and §50.50 in Chapter 50, §1915(c) Consolidated Waiver Program, without changes to the proposed text published in the April 18, 2008, issue of the Texas Register (33 TexReg 3212).

The amendments and repeal are adopted 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 adopted rules use 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 amendments and repeal are also adopted 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.

Further, the amendments are adopted 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.

DADS received no comments regarding adoption of the amendments and repeal.

40 TAC §§50.4, 50.10, 50.16

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

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 12, 2008.

TRD-200804315

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Effective date: September 1, 2008

Proposal publication date: April 18, 2008

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

40 TAC §50.48, §50.50

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

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 12, 2008.

TRD-200804316

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Effective date: September 1, 2008

Proposal publication date: April 18, 2008

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

40 TAC §50.28

The Health and Human Services Commission (HHSC), on behalf of the Department of Aging and Disability Services (DADS), adopts an amendment to §50.28 in Chapter 50, §1915(c) Consolidated Waiver Program, without changes to the proposed text published in the April 18, 2008, issue of the Texas Register (33 TexReg 3216).

The amendment is adopted 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 are removed from the rule.

DADS received no comments regarding adoption of the amendment.

The amendment is adopted under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including DADS; Texas Human Resources Code, §161.021, which provides that the Aging and Disability Services Council shall study and make recommendations to the HHSC executive commissioner and the DADS commissioner regarding rules governing the delivery of services to persons who are served or regulated by DADS; 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.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 12, 2008.

TRD-200804321

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Effective date: September 1, 2008

Proposal publication date: April 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), on behalf of the Department of Aging and Disability Services (DADS), adopts an amendment to §51.103 in Chapter 51, Medically Dependent Children Program, without changes to the proposed text published in the April 18, 2008, issue of the Texas Register (33 TexReg 3217).

The amendment is adopted to implement a rule change necessitated by a project under the direction of HHSC that replaces 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, needed to be revised.

The amendment is also adopted to update 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.

DADS received no comments regarding adoption of the amendment.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 12, 2008.

TRD-200804328

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Effective date: September 1, 2008

Proposal publication date: April 18, 2008

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

CHAPTER 51. MEDICALLY DEPENDENT CHILDREN PROGRAM

The Health and Human Services Commission (HHSC), on behalf of the Department of Aging and Disability Services (DADS), adopts an amendment to §51.203, the repeal of §51.239, and new §51.409 in Chapter 51, Medically Dependent Children Program, without changes to the proposed text published in the April 18, 2008, issue of the Texas Register (33 TexReg 3218).

The amendment, new section, and repeal are adopted 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.

DADS received no comments regarding adoption of the amendment, new section, and repeal.

SUBCHAPTER B. ELIGIBILITY, ENROLLMENT, AND SERVICES

DIVISION 1. ELIGIBILITY

40 TAC §51.203

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

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 12, 2008.

TRD-200804317

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Effective date: September 1, 2008

Proposal publication date: April 18, 2008

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

DIVISION 3. SERVICES

40 TAC §51.239

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

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 12, 2008.

TRD-200804318

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Effective date: September 1, 2008

Proposal publication date: April 18, 2008

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

SUBCHAPTER D. PROVIDER REQUIREMENTS

DIVISION 1. CONTRACTING REQUIREMENTS

40 TAC §51.409

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

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 12, 2008.

TRD-200804319

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Effective date: September 1, 2008

Proposal publication date: April 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), on behalf of the Department of Aging and Disability Services (DADS), adopts an amendment to §60.16 in Chapter 60, Contracting to Provide Programs of All-Inclusive Care for the Elderly (PACE), without changes to the proposed text published in the April 18, 2008, issue of the Texas Register (33 TexReg 3221).

The amendment is adopted to implement a rule change necessitated by a project under the direction of HHSC that replaces 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."

DADS received no comments regarding adoption of the amendment.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 12, 2008.

TRD-200804329

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Effective date: September 1, 2008

Proposal publication date: April 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), on behalf of the Department of Aging and Disability Services (DADS), adopts the repeal of §§83.1, 83.2, and 83.11 in Chapter 83, Area Agency on Aging Administrative Requirements, without changes to the proposal as published in the April 18, 2008, issue of the Texas Register (33 TexReg 3222).

HHSC, on behalf of DADS, is adopting new rules that govern area agencies on aging 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 adoption of rewritten and reorganized rules in Chapter 85, DADS adopts the repeal of obsolete rules in Chapter 83 that are no longer required in the rule base.

DADS received no comments regarding adoption of the repeal.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 12, 2008.

TRD-200804349

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Effective date: September 1, 2008

Proposal publication date: April 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), on behalf of the Department of Aging and Disability Services (DADS), adopts the repeal of §§84.1 - 84.3, 84.5 - 84.9, 84.11, 84.13, 84.15, 84.17, 84.19, 84.21, and 84.23, without changes to the proposal as published in the April 18, 2008, issue of the Texas Register (33 TexReg 3223).

DADS received no comments regarding adoption of the repeal.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 12, 2008.

TRD-200804350

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Effective date: September 1, 2008

Proposal publication date: April 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), on behalf of the Department of Aging and Disability Services (DADS), adopts new §§85.2, 85.201, 85.202, 85.208, 85.301 - 85.310, and 85.401, in Chapter 85, Implementation of the Older Americans Act. New §§85.2, 85.201, 85.302, 85.306, 85.307, and 85.401 are adopted with changes to the proposed text published in the April 18, 2008, issue of the Texas Register (33 TexReg 3225). New §§85.202, 85.208, 85.301, 85.303 - 85.305, and 85.308 - 85.310 are adopted without changes to the proposed text.

The adopted new rules describe the services provided by, and the administrative and fiscal responsibilities of, the 28 area agencies on aging, commonly referred to as "triple A's," (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 adopted new rules rewrite and reorganize DADS rules so that they are easier for AAAs and the public to use and understand. The rules 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 adopted new rules contain provisions that permit a AAA to provide homemaker services as a consumer directed service, a practice already in place.

Further, the rules are adopted to comply with changes to the Older Americans Act of 1965, as amended in 2006. Specifically, the 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 adoption, HHSC, on behalf of DADS, adopts the repeal of obsolete and duplicative rule language in Chapters 83, 84, and 100 of this title elsewhere in this issue of the Texas Register.

Minor editorial changes were made to the text of §§85.2, 85.201, and 85.401 to clarify and improve the accuracy of the sections. Specifically, a change to §85.2(20)(C) was made to reflect that a durable power of attorney, in addition to a medical power of attorney, may allow for an agent to make health care decisions for a person. A change was made to §85.2(33) to clarify that an ombudsman intern is not considered to be a staff person of a AAA. A change was made to §85.201(c)(1) to make the title of the Older Americans Act consistent with its use in the rest of Chapter 85. A change was made to §85.201(h) to delete reference to 45 CFR Part 164 (regulations concerning the Health Insurance Portability and Accountability Act) because enforcement of those regulations is a function performed by the Federal Office of Civil Rights. Language was added to §85.401(b) to clarify that the requirements of §85.401 apply to a AAA in its role as the local ombudsman entity. A change was made to §85.401(k) to more accurately reflect the provision in the Older Americans Act about disclosure of information regarding residents. Finally, changes were made to §85.401(g)(1)(C) and (F), (g)(2), and (q)(2) to correct the title of the DADS Ombudsman Policies and Procedures Manual.

DADS received written comments from the Coalition for Nurses in Advanced Practice (CNAP). A summary of the comments and the responses follows.

Comment: CNAP notes that many older Americans now receive their primary care from a nurse practitioner or clinical nurse specialist (two types of advanced practice nurses) and recommends that AAAs be allowed to recognize documentation and orders from advanced practice nurses, in addition to physicians. Specifically, the commenter suggests adding "advance practice nurse" to §§85.302(j)(1), 85.306(e)(1)(B) and (C), and 85.306(e)(5)(A)(ii).

Response: The agency agrees with the commenter, but is making a change to these rules to allow a AAA to recognize orders for medication and other treatment from any practitioner permitted by law to issue such orders by adding "or other health care practitioner acting within the scope of the practitioner's authority and license."

Comment: Concerning §85.307(h), the commenter suggests adding "primary care provider" to the rule because a program participant's primary care provider may not be a physician.

Response: The agency agrees and has added language to that effect to the rule.

SUBCHAPTER A. DEFINITIONS

40 TAC §85.2

§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 or durable 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 other than an ombudsman 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 adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 12, 2008.

TRD-200804345

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Effective date: September 1, 2008

Proposal publication date: April 18, 2008

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

SUBCHAPTER C. AAA ADMINISTRATIVE REQUIREMENTS

40 TAC §§85.201, 85.202, 85.208

§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;

(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 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 with 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.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 12, 2008.

TRD-200804346

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Effective date: September 1, 2008

Proposal publication date: April 18, 2008

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

SUBCHAPTER D. OLDER AMERICANS ACT SERVICES

40 TAC §§85.301 - 85.310

§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 or other health care practitioner acting within the scope of the practitioner's authority and license.

(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.

§85.306.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 a physician or other health care practitioner acting within the scope of the practitioner's authority and license;

(C) assisting a program participant with medical treatments, as directed by a physician or other health care practitioner acting within the scope of the practitioner's authority and license;

(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 medical appointments ordered by a physician or other health care practitioner acting within the scope of the practitioner's authority and license 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 or primary health care provider;

(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.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 12, 2008.

TRD-200804347

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Effective date: September 1, 2008

Proposal publication date: April 18, 2008

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

SUBCHAPTER E. LONG-TERM CARE OMBUDSMAN PROGRAM

40 TAC §85.401

§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.

(1) DADS designates AAAs as local ombudsman entities.

(2) 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.

(3) The requirements of this section apply to a AAA in its role as the local ombudsman entity.

(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 Policies and 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 Policies and 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 Policies and 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) For a resident for whom a AAA maintains files or records, the AAA may disclose confidential information, including the identity of the resident or information from the files or records, 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 Policies and 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 adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 12, 2008.

TRD-200804348

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Effective date: September 1, 2008

Proposal publication date: April 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), on behalf of the Department of Aging and Disability Services (DADS), adopts new §92.801 in Chapter 92, Licensing Standards for Assisted Living Facilities, with changes to the proposed text published in the April 18, 2008, issue of the Texas Register (33 TexReg 3248).

The new section is adopted 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. DADS rules currently do not require an assisted living facility to allow certified ombudsmen access to residents or to a resident's record, although access is mandated by federal law. The new section is adopted to clarify the rights of residents in assisted living facilities and the responsibilities of an assisted living facility under the federal law.

DADS received no comments regarding adoption of the new section.

Changes were made to the text of §92.801 to clarify and improve the accuracy of the section.

§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:

(1) a staff person of the Office of the State Long-Term Care Ombudsman (the Office) employed by DADS;

(2) a certified ombudsman; and

(3) an ombudsman intern.

(b) A facility must allow a certified ombudsman and a staff person of the Office access:

(1) to the medical and social records of a resident, if the certified ombudsman or the staff person 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 adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 11, 2008.

TRD-200804287

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Effective date: September 1, 2008

Proposal publication date: April 18, 2008

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

CHAPTER 93. EMPLOYEE MISCONDUCT REGISTRY (EMR)

The Health and Human Services Commission (HHSC), on behalf of the Department of Aging and Disability Services (DADS), adopts 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; and new §§93.1 - 93.9, in Chapter 93, Employee Misconduct Registry (EMR). New §93.8 is adopted with changes to the proposed text published in the April 18, 2008, issue of the Texas Register (33 TexReg 3249). 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, and new §§93.1 - 93.7 and 93.9 are adopted without changes to the proposed text.

The repeal and new sections are adopted to update DADS rules to be consistent with Senate Bill (SB) 1318, 80th Legislature, Regular Session, 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 required the reorganization of DADS' rules governing the EMR, established in accordance with Texas Health and Safety Code, Chapter 253.

The adopted EMR rules will be clearer and easier for the public to use and understand and more consistent with other Health and Human Services Enterprise rules.

DADS received a written comment from the Texas Association for Home Care. A summary of the comment and the response follows.

Comment: One commenter requested a change in §93.8(a)(3) to add the term "agency" to provide for the inclusion of both facilities and provider agencies in the rule.

Response: The agency agrees with the comment and has inserted the term "agency" in §93.8(a)(3).

40 TAC §§93.1 - 93.9

§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 or agency, the address of the facility or agency, 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.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 12, 2008.

TRD-200804330

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Effective date: September 1, 2008

Proposal publication date: April 18, 2008

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

SUBCHAPTER A. INTRODUCTION

40 TAC §§93.1 - 93.4

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 12, 2008.

TRD-200804331

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Effective date: September 1, 2008

Proposal publication date: April 18, 2008

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

SUBCHAPTER B. EMR USE REQUIREMENTS

40 TAC §§93.11 - 93.13

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 12, 2008.

TRD-200804332

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Effective date: September 1, 2008

Proposal publication date: April 18, 2008

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

SUBCHAPTER C. PROCESS FOR FACILITY REFERRALS

40 TAC §§93.21 - 93.23

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 12, 2008.

TRD-200804333

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Effective date: September 1, 2008

Proposal publication date: April 18, 2008

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

SUBCHAPTER D. PROCESS FOR AGENCY REFERRALS

40 TAC §§93.31 - 93.34

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 12, 2008.

TRD-200804334

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Effective date: September 1, 2008

Proposal publication date: April 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

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 12, 2008.

TRD-200804335

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Effective date: September 1, 2008

Proposal publication date: April 18, 2008

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

SUBCHAPTER F. RECORDABLE INFORMATION IN THE EMR

40 TAC §§93.61 - 93.63

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 12, 2008.

TRD-200804336

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Effective date: September 1, 2008

Proposal publication date: April 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), on behalf of the Department of Aging and Disability Services (DADS), adopts the repeal of §100.1 and §100.3 in Chapter 100 without changes to the proposal as published in the April 18, 2008, issue of the Texas Register (33 TexReg 3254).

DADS received no comments regarding adoption of the repeal.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 12, 2008.

TRD-200804351

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Effective date: September 1, 2008

Proposal publication date: April 18, 2008

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