Part 1. DEPARTMENT OF AGING AND DISABILITY SERVICES

Chapter 10. GUARDIANSHIP SERVICES

Subchapter C. CONTRACTOR REQUIREMENTS

40 TAC §§10.311, 10.315, 10.321

The Health and Human Services Commission (HHSC), on behalf of the Department of Aging and Disability Services (DADS), adopts amendments to §§10.311, 10.315, and 10.321 in Chapter 10, Guardianship Services, without changes to the proposed text as published in the October 19, 2007, issue of the Texas Register (32 TexReg 7430).

The amendments to §10.311 and §10.321 are adopted to update contractor employee qualifications with regard to certification by the Guardianship Certification Board (GCB). Effective September 1, 2007, Texas Government Code, §111.042, requires a guardianship contractor's case manager to be certified by the GCB. Before September 1, 2007, §10.311 allowed a case manager to have a certain level of education or experience as an alternative to certification by the GCB. The pre-September 1, 2007, education and experience criteria are now obsolete and no longer necessary to have in rule.

The amendment to §10.315 is adopted to implement the provisions of Senate Bill (SB) 291, 80th Legislature, Regular Session, 2007, which amended the Texas Probate Code, Section 698. Texas Probate Code, §698(a-1) - (a-3) requires DADS to obtain criminal history record information for anyone who provides guardianship services to a ward of DADS or a ward who is referred by DADS, including someone who is an employee or a volunteer with DADS or a guardianship contractor. The rule previously required a contractor to obtain the criminal history record information and, therefore, an amendment was needed for the rule to conform to state law.

DADS received one written comment from Advocacy, Inc., in support of the amendments.

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 Human Resources Code, §§161.101 - 161.113, which authorizes DADS to serve as guardian of the person or estate, or both, for an incapacitated individual and, if appropriate, to contract with another entity to provide guardianship services; and Texas Probate Code, §698(a-1) - (a-3), which requires DADS to obtain criminal history record information relating to each individual who is or will be providing guardianship services to a ward of or referred 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 December 31, 2007.

TRD-200706647

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Effective date: January 20, 2008

Proposal publication date: October 19, 2007

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