Part 1. DEPARTMENT OF AGING AND DISABILITY SERVICES

Chapter 9. MENTAL RETARDATION SERVICES--MEDICAID STATE OPERATING AGENCY RESPONSIBILITIES

Subchapter D. HOME AND COMMUNITY-BASED SERVICES (HCS) PROGRAM

40 TAC §§9.153 - 9.155, 9.160, 9.165, 9.174, 9.177, 9.185

The Health and Human Services Commission (HHSC) proposes, on behalf of the Department of Aging and Disability Services (DADS), amendments to §9.153, concerning definitions; §9.154, concerning description of the Home and Community-based Services (HCS) Program; §9.155, concerning eligibility criteria; §9.160, concerning lapsed level of care (LOC); §9.165, concerning maintenance of HCS Program waiting list; §9.174, concerning certification principles: service delivery; §9.177, concerning certification principles: personnel operations; and §9.185, concerning corrective action and program provider sanctions, in Chapter 9, Mental Retardation Services--Medicaid State Operating Agency Responsibilities, Subchapter D, Home and Community-based Services (HCS) Program.

BACKGROUND AND PURPOSE

The 2008-2009 General Appropriations Act (Article II, Department of Aging and Disability Services, Rider 45, House Bill 1, 80th Legislature, Regular Session, 2007) increased the HCS Program individual cost limit from 125% to 200% of the annual intermediate care facility for persons with mental retardation (ICF/MR) reimbursement rate. The amendments are proposed to change the rule to reflect this increased individual cost limit.

The proposal also adds "falsification of documentation" as a reason DADS may take a discretionary sanction against a program provider. DADS believes that falsification of documents is a serious offense warranting the imposition of any of the adverse actions listed in the rule as DADS deems appropriate. A similar change to the Texas Home Living (TxHmL) Program rules in Chapter 9, Subchapter N, is proposed elsewhere in this issue of the Texas Register.

In addition, the proposal describes the types of residential settings that disqualify an individual from receiving HCS Program services. This amendment reflects DADS' policy that the HCS Program is designed for individuals who do not live in congregate care settings such as assisted living facilities and segregated care communities. The proposal also identifies settings to which an individual may be temporarily admitted and during which time DADS may suspend program services.

Further, the proposal renames the counseling and therapies service component as "specialized therapies," renames the psychology service component as "behavioral support," and adds board certified behavior analysts as qualified providers of this service. This revision makes the HCS Program rules consistent with those of the TxHmL Program.

The proposal also removes the requirement that a physician sign the mental retardation/related conditions (MR/RC) Assessment to make the rules consistent with current DADS practice.

Finally, the proposal amends the waiting list processes by allowing an applicant's name to be placed on the waiting list or transferred to another mental retardation authority's (MRA's) waiting list by oral request. The amendment makes the HCS Program procedures more consistent with other DADS waiver programs. In addition, the proposed rules clarify that DADS, not an MRA, removes an applicant's name from the waiting list if the applicant's enrollment has been denied.

SECTION-BY-SECTION SUMMARY

The amendment to §9.153 adds definitions for "four-person residence" and "three-person residence," revises the definition of interdisciplinary team to state that the team may include persons chosen by an individual or legally authorized representative, and updates an agency website address.

The amendment to §9.154 renames the counseling and therapies service component as "specialized therapies," renames the psychology service component as "behavioral support," and updates an agency website address. The amendment also removes unnecessary language describing the residential support service component.

The amendment to §9.155 increases the HCS Program individual cost limit from 125% to 200% of the annual ICF/MR cost, specifies the institutional and congregate settings that disqualify an individual from receiving HCS Program services, identifies the settings to which an individual may be temporarily admitted and during which time DADS may suspend program services, and renames the section title to include service suspensions.

The amendment to §9.160 removes the requirements that a physician sign the MR/RC Assessment and that a provider maintain a statement of verification form in an individual's records to be consistent with current DADS practices.

The amendment to §9.165 allows an applicant to make either a written or oral request for HCS Program services in order for the applicant's name to be placed on the HCS Program waiting list or transferred to another MRA's waiting list, eliminates a redundant provision concerning removal of an applicant's name from the HCS Program waiting list, and clarifies that DADS removes an applicant's name from the HCS Program waiting list if DADS has denied the applicant enrollment and the applicant or legally authorized representative has had an opportunity to exercise the applicant's right to appeal the decision.

The amendment to §9.174 removes the language describing a residence in which supervised living and residential support may be provided and instead adds the terms "three-person residence" and "four-person residence," renames the counseling and therapies service component as "specialized therapies," renames the psychology service component as "behavioral support," and updates agency website addresses.

The amendment to §9.177 renames the counseling and therapies service component as "specialized therapies," lists the professionals who may provide behavioral support, including a board certified behavior analyst, updates references to the Texas Board of Nursing, and corrects a misspelled word.

The amendment to §9.185 adds falsification of documentation as a reason DADS may take a discretionary sanction against a program provider and clarifies that if a provider is placed on vendor hold, a second follow-up review will take place between 30 and 45 calendar days after the effective date of the vendor hold.

FISCAL NOTE

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

SMALL BUSINESS AND MICRO-BUSINESS IMPACT ANALYSIS

DADS has determined that there is no adverse economic effect on small businesses or micro-businesses as a result of enforcing or administering the amendments, because the amendments do not place any new requirements on small businesses or micro-businesses.

PUBLIC BENEFIT AND COSTS

Barry Waller, DADS Assistant Commissioner for Provider Services, has determined that, for each year of the first five years the amendments are in effect, the public benefit expected as a result of enforcing the amendments is reinforcement of DADS' policy that the HCS Program is designed for individuals who do not live in institutions or segregated care communities.

Individuals who receive behavioral support services will also benefit from the expanded choice of qualified providers with the addition of board certified behavior analysts.

Consistency between the HCS and TxHmL program requirements concerning discretionary sanctions and behavioral support will reduce confusion for program providers.

Finally, the public will also benefit from greater consistency between HCS Program waiting list procedures and other DADS waiver programs.

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

TAKINGS IMPACT ASSESSMENT

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

PUBLIC COMMENT

Questions about the content of this proposal may be directed to Cheryl Craddock-Melchor at (512) 438-4512 in DADS' Provider Services Division. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-031, Department of Aging and Disability Services W-615, P.O. Box 149030, Austin, Texas 78714-9030, or street address 701 West 51st Street, Austin, Texas 78751; faxed to (512) 438-5759; or e-mailed to rulescomments@dads.state.tx.us . To be considered, comments must be submitted no later than 30 days after the date of this issue of the Texas Register . The last day to submit comments falls on a Sunday; therefore, comments must be either (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered to DADS before 5:00 p.m. on DADS' last working day of the comment period; or (3) faxed or e-mailed by midnight on the last day of the comment period. When faxing or e-mailing comments, please indicate "Comments on Proposed Rule 031" in the subject line.

STATUTORY AUTHORITY

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

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

§9.153.Definitions.

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

(1) - (6) (No change.)

(7) CRCG (Community Resource Coordination Group)--A local interagency group composed of public and private agencies that develops service plans for individuals whose needs can be met only through interagency coordination and cooperation. The group's role and responsibilities are described in the Memorandum of Understanding on Coordinated Services to Persons Needing Services from More Than One Agency, available on the HHSC website at www.hhsc.state.tx.us [ www.hhsc.state.tx.us/crcg/crcg.htm ].

(8) - (15) (No change.)

(16) Four-person residence--A residence:

(A) that a program provider leases or owns;

(B) in which at least one person but no more than four persons receive:

(i) residential support;

(ii) supervised living;

(iii) a non-HCS Program service similar to residential support or supervised living (for example, Community Living Assistance and Support Services or services funded by DFPS or by a person's own resources); or

(iv) respite;

(C) that, if it is the residence of four persons, at least one of those persons receives residential support;

(D) that is not the residence of any persons other than those described in subparagraph (B) of this paragraph; and

(E) that is not a dwelling described in §9.155(a)(5)(G) of this subchapter (relating to Eligibility Criteria).

(17) [ (16) ] HCS Program--The Home and Community-based Services Program operated by DADS as authorized by the Centers for Medicare and Medicaid Services in accordance with §1915(c) of the Social Security Act.

(18) [ (17) ] HCS case manager--An employee of the program provider who is responsible for the overall coordination and monitoring of HCS Program services provided to an individual.

(19) [ (18) ] HHSC--The Texas Health and Human Services Commission.

(20) [ (19) ] ICAP--Inventory for Client and Agency Planning.

(21) [ (20) ] ICF/MR--Intermediate care facility for persons with mental retardation or related conditions.

(22) [ (21) ] IDT (interdisciplinary team)--A planning team constituted by the program provider for each individual consisting of, at a minimum, the individual and LAR, HCS case manager, and a nurse. Other applicable persons assigned to provide or who are currently providing direct services to the individual and, as appropriate, a physician , [ and ] other professional personnel , and other persons chosen by the individual or LAR may be included as team members as necessary. If an individual chooses to participate in CDS, a representative of the CDSA may be a member of the IDT if requested by the individual or LAR and agreed to by the CDSA representative.

(23) [ (22) ] Individual--A person enrolled in the HCS Program.

(24) [ (23) ] IPC (individual plan of care)--A document that describes the type and amount of each HCS Program service component to be provided to an individual and describes medical and other services and supports to be provided through non-program resources.

(25) [ (24) ] IPC cost--Estimated annual cost of program services included on an IPC.

(26) [ (25) ] IPC year--A 12-month period of time starting on the date an authorized initial or renewal IPC begins.

(27) [ (26) ] ISP (individual service plan)--A written plan, from which the IPC is derived, developed by the IDT using person-directed planning and, if appropriate, permanency planning. The ISP describes the assessments, recommendations, deliberations, conclusions, justifications, and outcomes regarding the specific services provided to the individual by the program provider.

(28) [ (27) ] Large ICF/MR--A non-state operated ICF/MR with a Medicaid certified capacity of 14 or more.

(29) [ (28) ] LAR (legally authorized representative)--A person authorized by law to act on behalf of a person with regard to a matter described in this subchapter, and may include a parent, guardian, or managing conservator of a minor, or the guardian of an adult.

(30) [ (29) ] LOC (level of care)--A determination given to an individual as part of the eligibility determination process based on data submitted on the MR/RC Assessment.

(31) [ (30) ] LON (level of need)--An assignment given by DADS to an individual upon which reimbursement for foster/companion care, supervised living, residential support, and day habilitation is based. The LON assignment is derived from the service level score obtained from the administration of the ICAP to the individual and from selected items on the MR/RC Assessment.

(32) [ (31) ] LVN--Licensed vocational nurse.

(33) [ (32) ] MRA (mental retardation authority)--An entity to which HHSC's authority and responsibility described in Texas Health and Safety Code, §531.002(11) has been delegated.

(34) [ (33) ] MR/RC Assessment--A form used by DADS for LOC determination and LON assignment.

(35) [ (34) ] Natural support network--Those persons, including family members, church members, neighbors, and friends, who assist and sustain an individual with supports that occur naturally within the individual's environment and that are not reimbursed or purposely developed by a person or system.

(36) [ (35) ] Person-directed planning--A process that empowers the individual (and the LAR on the individual's behalf) to direct the development of a plan for supports and services that meet the individual's outcomes. The process:

(A) identifies existing supports and services necessary to achieve the individual's outcomes;

(B) identifies natural supports available to the individual and negotiates needed services system supports;

(C) occurs with the support of a group of people chosen by the individual (and the LAR on the individual's behalf); and

(D) accommodates the individual's style of interaction and preferences regarding time and setting.

(37) [ (36) ] Permanency planning--A philosophy and planning process that focuses on the outcome of family support for an individual under 22 years of age by facilitating a permanent living arrangement in which the primary feature is an enduring and nurturing parental relationship.

(38) [ (37) ] Permanency Planning Review Screen--A screen in CARE that, if completed by an MRA, identifies community supports needed to achieve an individual's permanency planning outcomes and provides information necessary for approval to provide supervised living or residential support to the individual.

(39) [ (38) ] Primary correspondent--A person who may request, in accordance with the Mental Retardation Services and Supports Interest List Policy and Procedures Manual , that an MRA place an applicant's name on the HCS Program waiting list.

(40) [ (39) ] Program provider--An entity that provides HCS Program services under a waiver program provider agreement with DADS as defined in Subchapter Q of this chapter (relating to Enrollment of Medicaid Waiver Program Providers).

(41) [ (40) ] Restraint--

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

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

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

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

(42) [ (41) ] RN--Registered nurse.

(43) [ (42) ] Seclusion--The involuntary separation of an individual away from other individuals and the placement of the individual alone in an area from which the individual is prevented from leaving.

(44) [ (43) ] Service back-up plan--A plan, as defined in §41.103 of this title, that ensures continuity of critical program services if service delivery is interrupted.

(45) [ (44) ] Service coordinator--An employee of an MRA who is responsible for assisting an individual, or LAR on behalf of the individual, in accessing medical, social, educational, and other appropriate services, including HCS Program services.

(46) [ (45) ] Service planning team--A planning team constituted by an MRA consisting of an applicant, LAR, service coordinator, and other persons chosen by the applicant or LAR on behalf of the applicant.

(47) [ (46) ] SSI--Supplemental Security Income.

(48) [ (47) ] Support consultation--A service, as defined in §41.103 of this title, that is provided by a support advisor employed by, or contracted through, a CDSA or retained as a contractor by an employer in the CDS option.

(49) [ (48) ] TANF--Temporary Assistance for Needy Families.

(50) Three-person residence--A residence:

(A) that a program provider leases or owns;

(B) in which at least one person but no more than three persons receive:

(i) residential support;

(ii) supervised living;

(iii) a non-HCS Program service similar to residential support or supervised living (for example, Community Living Assistance and Support Services or services funded by DFPS or by a person's own resources); or

(iv) respite;

(C) that is not a dwelling described in §9.155(a)(5)(G) of this subchapter (relating to Eligibility Criteria).

§9.154.Description of the Home and Community-based Services (HCS) Program.

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

(c) HCS Program service components listed in this subsection are selected for inclusion in an individual's IPC to ensure the individual's health and welfare in the community, supplement rather than replace that individual's natural supports and other community services for which the individual may be eligible, and prevent the individual's admission to institutional services. The following service components are defined in the HCS Program Service Definitions , which are available at www.dads.state.tx.us [ http://www.dads.state.tx.us/business/mental_retardation/hcs/index.html ]. Service components available under the HCS Program are:

(1) (No change.)

(2) specialized [ counseling and ] therapies provided by appropriately licensed or certified professionals, including:

(A) - (E) (No change.)

(F) behavioral support [ psychology ]; and

(G) (No change.)

(3) (No change.)

(4) residential assistance, excluding room and board, provided in one of the following four ways:

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

(D) residential support [ provided in residences serving four individuals ];

(5) - (12) (No change.)

(d) - (e) (No change.)

§9.155.Eligibility Criteria and Suspension of HCS Program Services .

(a) An applicant or individual is eligible for HCS Program services if he or she:

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

(3) has an approved IPC for which the IPC cost does not exceed 200% [ 125% ] of the annual ICF/MR reimbursement rate paid to a small ICF/MR, as defined in 1 TAC §355.456 (relating to Reimbursement [ Rate Setting ] Methodology) for the individual's level of need as it would be assigned under §9.240 of this chapter (relating to Level of Need) or 200% [ 125% ] of the estimated annualized per capita cost for ICF/MR services, whichever is greater; [ and ]

(4) is not enrolled in another waiver program under §1915(c) of the Social Security Act ; and [ . ]

(5) does not reside in:

(A) an ICF/MR licensed or subject to being licensed in accordance with Texas Health and Safety Code, Chapter 252, or certified by DADS;

(B) a nursing facility licensed or subject to being licensed in accordance with Texas Health and Safety Code, Chapter 242;

(C) an assisted living facility licensed or subject to being licensed in accordance with Texas Health and Safety Code, Chapter 247;

(D) a residential child-care operation licensed or subject to being licensed by DFPS unless it is a foster family home or a foster group home;

(E) a facility licensed or subject to being licensed by the Department of State Health Services (DSHS);

(F) a residential facility operated by the Texas Youth Commission, a jail, or a prison; or

(G) a setting in which two or more dwellings, including units in a duplex or apartment complex, single family homes, or facilities listed in subparagraphs (A) - (F) of this paragraph, meet all of the following criteria:

(i) the dwellings create a residential area distinguishable from other areas primarily occupied by persons who do not require routine support services because of a disability;

(ii) most of the residents of the dwellings are persons with mental retardation, another developmental disability, or a physical disability; and

(iii) the residents of the dwellings are provided routine support services through personnel, equipment, or service facilities shared with the residents of the other dwellings.

(b) - (c) (No change.)

(d) If an individual is temporarily admitted to one of the following settings, DADS suspends HCS Program services during that admission:

(1) a hospital;

(2) an ICF/MR licensed or subject to being licensed in accordance with Texas Health and Safety Code, Chapter 252 or certified by DADS;

(3) a nursing facility licensed or subject to being licensed in accordance with Texas Health and Safety Code, Chapter 242;

(4) a residential child-care operation licensed or subject to being licensed by DFPS;

(5) a facility licensed or subject to being licensed by the DSHS; or

(6) a residential facility operated by the Texas Youth Commission, a jail, or a prison.

§9.160.Lapsed Level of Care (LOC).

(a) - (d) (No change.)

(e) The program provider must retain in the individual's record[ : ]

[ (1) ] a completed MR/RC Assessment, signed by [ the individual's physician and ] an appropriate representative of the program provider, containing information identical to that on the MR/RC Assessment electronically transmitted to DADS . [ ; and ]

[(2) a Statement of Verification, signed by the CEO of the program provider, copies of which are available by contacting the Department of Aging and Disability Services, Provider Services Division, P.O. Box 149030, Austin, Texas 78714-9030.]

§9.165.Maintenance of HCS Program Waiting List.

(a) An MRA must maintain an up-to-date waiting list of applicants waiting to receive HCS Program services for whom the MRA is the designated MRA in CARE.

(1) If an applicant's name is placed on the HCS Program waiting list, the MRA must assign the applicant a registration date that is:

(A) the date of receipt by an MRA of a written or oral request for HCS Program services;

(B) the date of receipt of notification given to the MRA in accordance with Texas Government Code, §531.154, that an individual under 22 years of age has been admitted to one of the following institutions, as defined in Texas Government Code, §531.151:

(i) an ICF/MR;

(ii) a nursing home;

(iii) an institution for the mentally retarded licensed by DFPS;

(iv) a foster group home licensed by DFPS; or

(v) another residential arrangement that provides care to four or more individuals under 22 years of age who are unrelated to each other; or

(C) the date of an MRA's notification to an applicant under 22 years of age as described in §9.164(g)(1) of this subchapter (relating to Process for Enrollment of Applicants).

(2) The MRA must provide written notification to program providers in its local service area of the process that program providers should use to refer applicants who wish to be placed on the HCS Program waiting list.

(3) Except as specified in paragraph (4) of this subsection [ section ], the MRA must remove an applicant's name from the HCS Program waiting list if it is documented that:

(A) written permission has been obtained from the applicant or the primary correspondent to remove the applicant's name from the waiting list;

(B) the applicant is deceased;

(C) the applicant moved out of the state of Texas;

[(D) DADS has denied the applicant enrollment and the applicant or LAR has had an opportunity to exercise the applicant's right to appeal the decision according to §9.169 of this subchapter (relating to Fair Hearing);]

(D) [ (E) ] the applicant's name has been added to another MRA's waiting list in accordance with paragraph (6) of this subsection [ section ];

(E) [ (F) ] the applicant or LAR has not responded to the MRA's notification of a program vacancy within 30 calendar days of the date of the MRA's notification;

[(G) the applicant or LAR does not choose participation in the HCS Program as documented on the HCS Verification of Freedom of Choice form when offered this choice in accordance with §9.164(e)(2) of this subchapter;]

(F) [ (H) ] the applicant or LAR declines HCS Program services;

(G) [ (I) ] the applicant or LAR has not responded to the MRA's attempts to contact the applicant or LAR during its annual update of the waiting list;

(H) [ (J) ] the applicant or LAR has not documented the choice of HCS Program services over the ICF/MR Program using the HCS Verification of Freedom of Choice form within the time frames described in §9.164(f)(2) of this subchapter; or

(I) [ (K) ] the applicant or LAR has not documented the choice of a program provider using the Documentation of Provider Choice form within the time frames described in §9.164(f)(3) of this subchapter.

(4) For an applicant under 22 years of age whose name was placed on the HCS Program waiting list in accordance with Texas Government Code, §531.157, an MRA may remove the applicant's name from the waiting list only if[ : ]

[ (A) ] the applicant is deceased or [ ; ]

[(B) DADS has denied the applicant's enrollment and the applicant or LAR has had an opportunity to exercise the individual's right to appeal the decision in accordance with §9.169 of this subchapter (relating to Fair Hearing); or]

[ (C) ] the applicant's name has been transferred in accordance with paragraph (6) of this subsection [ section ].

(5) If an applicant's name is removed from a waiting list in accordance with paragraph (3) or (4) of this subsection [ section ], the applicant, LAR, or the MRA may request that DADS review the circumstances under which the applicant's name was removed from the MRA's waiting list. At its discretion, DADS may direct the MRA to reinstate the applicant's name to the waiting list using the previously assigned registration date.

(6) At the [ written ] request of an applicant or LAR of an applicant who moves to the local service area of a different MRA, the original MRA must provide the applicant's name and date of request for HCS Program services to the MRA in the local service area where the applicant has moved. The MRA receiving the information must add the applicant's name to its waiting list using the date of the request for HCS Program services provided by the transferring MRA.

(b) DADS removes an applicant's name from the HCS Program waiting list if DADS has denied the applicant enrollment and the applicant or LAR has had an opportunity to exercise the applicant's right to appeal the decision in accordance with §9.169 of this subchapter (relating to Fair Hearing).

§9.174.Certification Principles: Service Delivery.

The program provider must:

(1) - (31) (No change.)

(32) provide adaptive aids, including the full range of lifts, mobility aids, control switches/pneumatic switches and devices, environmental control units, medically necessary supplies, and communication aids and repair and maintenance of the aids as determined by the individual's needs and in compliance with the definition in the HCS Program Service Definitions , which are available at www.dads.state.tx.us [ http://www.dads.state.tx.us/business/mental_retardation/hcs/index.html ];

(33) - (39) (No change.)

(40) provide the following specialized [ counseling and ] therapy services in compliance with the definition in the HCS Program Service Definitions as determined by individual needs:

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

(G) behavioral support [ psychology services ];

(41) provide day habilitation, which may not include services funded by other sources such as §110 of the Rehabilitation Act of 1973 or §602(16) and (17) of the Individuals with Disabilities Education Act, as determined by the individual's needs and in compliance with the definition in the HCS Program Service Definitions, including:

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

(C) complementing any specialized [ counseling and ] therapies listed in the IPC;

(D) - (G) (No change.)

(42) - (45) (No change.)

(46) ensure that supported home living is provided in accordance with the definition in the HCS Program Service Definitions and includes the following elements:

(A) - (E) (No change.)

(F) reinforcement of specialized [ counseling and ] therapy activities;

(G) - (J) (No change.)

(47) (No change.)

(48) ensure that HCS foster/companion care is provided in accordance with the definition in the HCS Program Service Definitions and includes:

(A) - (E) (No change.)

(F) reinforcement of specialized [ counseling and ] therapy activities;

(G) - (J) (No change.)

(49) ensure that supervised living is provided:

(A) in a four-person residence that is approved in accordance with §9.188 of this subchapter (relating to DADS' Approval of Residences) or a three-person residence;

(B) [ (A) ] by a supervised living provider who provides services and supports as needed by individuals and is present in the residence and able to respond to the needs of individuals during normal sleeping hours; and

[(B) in a residence in which no more than three individuals receiving supervised living or other persons receiving similar services are living at any one time;]

[(C) in a residence in which the program provider holds a property interest; and]

(C) [ (D) ] only with approval by the DADS commissioner or designee for the initial six months and one six-month extension and only with approval by the HHSC executive commissioner after such 12-month period, if provided to an individual under 22 years of age;

(50) ensure that supervised living is provided in accordance with the definition contained in the HCS Program Service Definitions and includes:

(A) - (E) (No change.)

(F) reinforcement of specialized [ counseling and ] therapy activities;

(G) - (J) (No change.)

(51) ensure that residential support is provided:

(A) in a four-person residence that is approved in accordance with §9.188 of this subchapter or a three-person residence;

(B) [ (A) ] by a residential support provider who is present in the residence and awake whenever an individual is present in the residence;

(C) [ (B) ] by residential support providers assigned on a daily shift schedule that includes at least one complete change of provider staff each day; and

[(C) in a residence in which no more than four individuals and other persons receiving similar services are living at any one time and which is approved in accordance with §9.188 of this subchapter (relating to DADS' Approval of Residences);]

[(D) in a residence in which the program provider holds a property interest; and]

(D) [ (E) ] only with approval by the DADS commissioner or designee for the initial six months and one six-month extension and only with approval by the HHSC executive commissioner after such 12-month period, if provided to an individual under 22 years of age;

(52) ensure that residential support is provided in accordance with the definition contained in the HCS Program Service Definitions and includes the following elements:

(A) - (E) (No change.)

(F) reinforcement of specialized [ counseling and ] therapy activities;

(G) - (J) (No change.)

(53) - (57) (No change.)

(58) within three working days of initiating supervised living or residential support to an individual under 22 years of age, provide the information listed in paragraph (59) of this section to the following:

(A) the MRA in whose local service area the residence is located (see www.dads.state.tx.us [ www.dads.state.tx.us/contact/mra/index.cfm ] for a listing of MRAs by county or city);

(B) the CRCG for the county in which the applicant's LAR lives (see www.hhsc.state.tx.us [ www.hhsc.state.tx.us/crcg/crcg.htm ] for a listing of CRCG chairpersons by county); and

(C) the local school district for the area in which the residence is located, if the individual is at least three years of age or the early childhood intervention (ECI) program for the county in which the residence is located, if the individual is less than three years of age (see www.dars.state.tx.us [ www.dars.state.tx.us/ecis/index.shtml ] or call 1-800-250-2246 for a listing of ECI programs by county); and

(59) (No change.)

§9.177.Certification Principles: Personnel Operations.

(a) - (g) (No change.)

(h) The program provider must ensure that the HCS case manager is currently qualified by having:

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

(4) a license by the Texas Board of Nursing [ Nurse Examiners for the State of Texas ] as an LVN or RN with one year of experience in human services.

(i) The program provider must ensure that each provider of specialized [ counseling and ] therapies is currently qualified by being licensed by the State of Texas or certified [ by the State of Texas ] in the specific area for which services are delivered or be providing services in accordance with state law. The program provider must ensure that the provider of behavioral support: [ A psychologist employed by a community mental health and mental retardation center must be licensed in accordance with state law or certified as described in Chapter 5, Subchapter D of this title (relating to Diagnostic Eligibility for Services and Supports--Mental Retardation Priority Population and Related Conditions). ]

(1) is licensed as a psychologist in accordance with Chapter 501 of the Texas Occupations Code;

(2) is licensed as a psychological associate in accordance with Chapter 501 of the Texas Occupations Code;

(3) has been issued a provisional license to practice psychology in accordance with Chapter 501 of the Texas Occupations Code;

(4) is certified by DADS as described in §5.161 of this title (relating to TDMHMR-Certified Psychologist); or

(5) is certified as a behavior analyst by the Behavior Analyst Certification Board, Inc.

(j) - (k) (No change.)

(l) The program provider must ensure that nursing services are provided by a nurse who is currently qualified by being licensed by the Texas Board of Nursing [ Nurse Examiners for the State of Texas ] as an RN or LVN.

(m) (No change.)

(n) The program provider must take the following actions regarding applicants for employment, contractors, and employees of the program provider whose duties involve or would involve direct contact with an individual:

(1) (No change.)

(2) search the Employee Misconduct Registry and the Nurse Aide [ Aid ] Registry maintained by DADS to determine whether the applicant, contractor, or employee is designated in either registry as having abused, neglected, or exploited a resident or consumer of a facility or misappropriated a resident's or consumer's property, and refrain from employing or contracting with persons who are designated in either registry.

§9.185.Corrective Action and Program Provider Sanctions.

(a) - (c) (No change.)

(d) If DADS determines that the program provider is out of compliance with between 10 and 20 percent of the certification principles at the end of the review exit conference, including any principles found out of compliance in the previous review, DADS does not certify the program provider and applies Level I sanctions against the program provider.

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

(3) If DADS implements vendor hold against the provider, DADS conducts a second on-site follow-up review between 30 and 45 calendar days after [ from ] the effective date of the vendor hold. Based on the results of the review, DADS:

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

(e) - (f) (No change.)

(g) Notwithstanding subsections (b) - (e) of this section, if DADS determines that a program provider's failure to comply with one or more of the certification principles is of a serious or pervasive nature, DADS may, at its discretion, take any action described in this section against the program provider. Serious or pervasive failure to comply includes :

(1) conditions that have potentially dangerous consequences for individuals served by the program provider ; or

(2) conditions that affect a large percentage of individuals served by the program provider.

(h) Notwithstanding subsections (b) - (e) of this section, if DADS determines that a program provider has falsified documentation used to demonstrate compliance with this subchapter, DADS may, at its discretion, take any action described in this section against the program provider.

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

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

TRD-200800035

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: February 17, 2008

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

40 TAC §§9.553, 9.554, 9.556, 9.558, 9.559, 9.570, 9.573, 9.577, 9.580

The Health and Human Services Commission (HHSC) proposes, on behalf of the Department of Aging and Disability Services (DADS), amendments to §9.553, concerning definitions; §9.554, concerning description of the TxHmL Program; §9.556, concerning eligibility criteria; §9.558, concerning individual plan of care (IPC); §9.559, concerning request to increase service category limits; §9.570, concerning permanent discharge from the TxHmL Program; §9.573, concerning reimbursement; §9.577, concerning corrective action and program provider sanctions; and §9.580, concerning certification principles: quality assurance, in Chapter 9, Mental Retardation Services--Medicaid State Operating Agency Responsibilities, Subchapter N, Texas Home Living (TxHmL) Program.

BACKGROUND AND PURPOSE

The service components in the TxHmL Program are divided into two service categories, the Community Living Service Category and the Technical and Professional Supports Service Category. Currently, the rule states that the annual cost limit (i.e. service category limit) for the Community Living Service Category is $8,000, the service category limit for the Technical and Professional Supports Service Category is $2,000, and the total cost limit for these categories combined is $10,000. The total cost limit is the amount that the cost of an individual's Individual Plan of Care (IPC) may not exceed. The service category and total cost limits were revised in 2007. The purpose of the amendments is to delete the specific monetary limits and instead reference the TxHmL Program waiver application approved by the Centers for Medicare and Medicaid Services (CMS) where the revised limits have been listed and will be updated as necessary. The cost limits are based, in part, on TxHmL provider rates adopted by the Health and Human Services Commission (HHSC). A rate increase by HHSC may cause an individual's IPC cost to exceed the total cost limit without an increase in the amount of services being provided and, therefore, the service category limits and total cost limits were revised to allow for increased IPC costs. Future rate increases may cause these limits to be revised again. A reference to the waiver application in the rule directs readers to the most current information regarding cost limits.

In addition, the purpose of the amendments is to add a definition of "own home or family home" that describes the types of institutional and congregate settings that disqualify an individual from receiving TxHmL Program services. This amendment reflects DADS policy that the TxHmL Program is designed for individuals who do not live in an institutional setting. Further, the proposal identifies settings to which an individual may be temporarily admitted, during which time DADS may suspend program services.

The amendments also place current billing practices into rule and permit DADS to require a program provider to develop and submit, in accordance with DADS instructions, a corrective action plan that improves the program provider's billing practices. This new requirement is consistent with that in the HCS Program.

Finally, the amendments allow for DADS to take discretionary actions against a provider if the provider falsifies documents used to demonstrate compliance with the rule. DADS believes that falsification of documents is a serious offense warranting the imposition of any of the adverse actions listed in the rule as DADS deems appropriate.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §9.553 adds definitions for "CARE," "critical incident data," and "own home or family home," which specifies the institutional and congregate settings that disqualify an individual from receiving TxHmL Program services, and deletes the definitions of "family home" and "own home."

The amendment to §9.554 removes the monetary cost limits for the Community Living Service Category and Professional and Technical Support Service Category and replaces them with references to Appendix C of the TxHmL Program waiver application.

The amendment to §9.556 updates terminology regarding eligibility criteria.

The amendments to §9.558 and §9.559 remove the annual IPC monetary cost limit and replace it with language referencing the combined cost limit specified in the TxHmL Program waiver application approved by CMS.

The amendment to §9.570 identifies the settings to which an individual may be temporarily admitted, during which time DADS may suspend program services. The amendment also revises the section title.

The amendment to §9.573 places current billing practices into rule, references DADS billing and payment review protocol, and allows DADS to require a program provider to develop and submit, in accordance with DADS instructions, a corrective action plan that improves the program provider's billing practices. The amendment adds provisions that allow DADS to place a hold on vendor payments or terminate a program provider agreement if a program provider does not submit a corrective action plan or complete the required action. The amendment will make the TxHmL rules consistent with the Home and Community-based Services (HCS) Program rules.

The amendment to §9.577 adds falsification of documentation as a reason DADS may take discretionary sanctions against a program provider and clarifies the time period in which DADS conducts a second on-site follow-up review.

The amendment to §9.580 requires that a program provider record critical incident data in the CARE system within 30 days after the last day of the month the incident is reported, consistent with a requirement in the program provider agreement.

FISCAL NOTE

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

SMALL BUSINESS AND MICRO-BUSINESS IMPACT ANALYSIS

DADS has determined that there is no adverse economic effect on small businesses or micro-businesses as a result of enforcing or administering the amendments, because the amendments do not place any new requirements on small businesses or micro-businesses.

PUBLIC BENEFIT AND COSTS

Barry Waller, DADS Assistant Commissioner for Provider Services, has determined that, for each year of the first five years the amendments are in effect, the public benefit expected as a result of enforcing the amendments is the provision of current information regarding revised IPC cost limits, a clarification of the settings in which TxHmL Program services are not provided, improved provider billing practices, and consistency between the HCS and TxHmL program requirements concerning critical incident reporting and billing and payment reviews.

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

TAKINGS IMPACT ASSESSMENT

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

PUBLIC COMMENT

Questions about the content of this proposal may be directed to Cheryl Craddock-Melchor at (512) 438-4512 in DADS' Provider Services Division. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-032, Department of Aging and Disability Services W-615, P.O. Box 149030, Austin, Texas 78714-9030, or street address 701 West 51st St., Austin, TX 78751; faxed to (512) 438-5759; or e-mailed to rulescomments@dads.state.tx.us. To be considered, comments must be submitted no later than 30 days after the date of this issue of the Texas Register . The last day to submit comments falls on a Sunday; therefore, comments must be either (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered to DADS before 5:00 p.m. on DADS' last working day of the comment period; or (3) faxed or e-mailed by midnight on the last day of the comment period. When faxing or e-mailing comments, please indicate "Comments on Proposed Rule 032" in the subject line.

STATUTORY AUTHORITY

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

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

§9.553.Definitions.

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

(1) (No change.)

(2) CARE--Client Assignment and Registration System. A DADS database with demographic and other data about an individual who is receiving services and supports or on whose behalf services and supports have been requested.

(3) [ (2) ] CDS--Consumer directed services. A service delivery option as defined in §41.103 of this title (relating to Definitions).

(4) [ (3) ] CDSA--Consumer directed service agency. An entity, as defined in §41.103 of this title, that provides financial management services and, at the request of an individual or LAR, support consultation to an individual participating in CDS.

(5) [ (4) ] CMS--Centers for Medicare and Medicaid Services. The federal agency that administers Medicaid programs.

(6) Critical incident data--Information a program provider enters in CARE that includes the number of behavior intervention plans authorizing restraint, the number of restraints used, the number of medication errors, the number of serious physical injuries, and the number of deaths.

(7) [ (5) ] DADS--The Department of Aging and Disability Services.

(8) [ (6) ] DFPS--The Department of Family and Protective Services.

[ (7) Family home--The home of an applicant's or individual's natural, adoptive, or DFPS foster family.]

(9) [ (8) ] Financial management services--A service, as defined in §41.103 of this title, that is provided to an individual participating in CDS.

(10) [ (9) ] HCS Program--The Home and Community-based Services Program operated by DADS as authorized by CMS in accordance with §1915(c) of the Social Security Act.

(11) [ (10) ] HHSC--The Texas Health and Human Services Commission.

(12) [ (11) ] ICF/MR Program--The Intermediate Care Facilities for Persons with Mental Retardation or Related Conditions Program.

(13) [ (12) ] Individual--A person enrolled in the TxHmL Program.

(14) [ (13) ] IPC--Individual plan of care. A document that describes the type and amount of each TxHmL Program service component to be provided to an individual and medical and other services and supports to be provided through non-TxHmL Program resources.

(15) [ (14) ] IPC cost--Estimated annual cost of program services included on an IPC.

(16) [ (15) ] IPC year--A 12-month period of time starting on the date an authorized initial or renewal IPC begins.

(17) [ (16) ] LAR--Legally authorized representative. A person authorized by law to act on behalf of a person with regard to a matter described in this subchapter, and may include a parent, guardian, or managing conservator of a minor, or the guardian of an adult.

(18) [ (17) ] LOC--Level of care. A determination made by DADS about an applicant or individual as part of the TxHmL Program eligibility determination process based on data submitted on the MR/RC Assessment.

(19) [ (18) ] LON--Level of need. An assignment given by DADS for an applicant or individual that is derived from the service level score obtained from the administration of the Inventory for Client and Agency Planning (ICAP) to the individual and from selected items on the MR/RC Assessment.

(20) [ (19) ] MRA--Mental retardation authority. An entity to which HHSC's authority and responsibility described in THSC, §531.002(11) has been delegated.

(21) [ (20) ] MR/RC Assessment--A form used by DADS for LOC determination and LON assignment.

(22) Own home or family home--A residence that is not:

(A) an intermediate care facility for persons with mental retardation or related conditions (ICF/MR) licensed or subject to being licensed in accordance with Texas Health and Safety Code, Chapter 252 or certified by DADS;

(B) a nursing facility licensed or subject to being licensed in accordance with Texas Health and Safety Code, Chapter 242;

(C) an assisted living facility licensed or subject to being licensed in accordance with Texas Health and Safety Code, Chapter 247;

(D) a residential child-care operation licensed or subject to being licensed by DFPS unless it is a foster family home or a foster group home;

(E) a facility licensed or subject to being licensed by the Department of State Health Services;

(F) a residential facility operated by the Texas Youth Commission, a jail, or a prison; or

(G) a setting in which two or more dwellings, including units in a duplex or apartment complex, single family homes, or facilities listed in subparagraphs (A) - (F) of this paragraph, meet all of the following criteria:

(i) the dwellings create a residential area distinguishable from other areas primarily occupied by persons who do not require routine support services because of a disability;

(ii) most of the residents of the dwellings are persons with mental retardation, another developmental disability, or a physical disability; and

(iii) the residents of the dwellings are provided routine support services through personnel, equipment, or service facilities shared with the residents of the other dwellings.

[ (21) Own home--A residence owned or leased by an applicant or individual in which the applicant or individual lives.]

(23) [ (22) ] Performance contract--A written agreement between DADS and an MRA for the provision of one or more functions as described in THSC, §533.035(b).

(24) [ (23) ] PDP--Person-directed plan. A plan developed for an applicant in accordance with §9.567 of this subchapter (relating to Process for Enrollment) that describes the supports and services necessary to achieve the desired outcomes identified by the applicant or LAR on behalf of the applicant.

(25) [ (24) ] Program provider--An entity that provides TxHmL Program services under a program provider agreement with DADS in accordance with Subchapter Q of this chapter (relating to Enrollment of Medicaid Waiver Program Providers).

(26) [ (25) ] Program provider agreement--A written agreement between DADS and a program provider that obligates the program provider to deliver TxHmL Program service components, except for financial management services and support consultation.

(27) [ (26) ] Respite facility--A site that is not a residence and that is owned or leased by a program provider for the purpose of providing out-of-home respite to not more than six individuals receiving TxHmL Program services or other persons receiving similar services at any one time.

(28) [ (27) ] Service back-up plan--A plan, as defined in §41.103 of this title, that ensures continuity of critical service components if service delivery is interrupted.

(29) [ (28) ] Service coordinator--An employee of an MRA who is responsible for assisting an applicant, individual, or LAR to access needed medical, social, educational, and other appropriate services including TxHmL Program services.

(30) [ (29) ] Service planning team--A planning team constituted by an MRA consisting of an applicant or individual, LAR, service coordinator, and other persons chosen by the applicant, individual, or LAR.

(31) [ (30) ] Support consultation--A service, as defined in §41.103 of this title, that is provided to an individual participating in the CDS option at the request of the individual or LAR.

(32) [ (31) ] TAC--Texas Administrative Code. A compilation of state agency rules published by the Texas Secretary of State in accordance with Texas Government Code, Chapter 2002, Subchapter C.

(33) [ (32) ] THSC--Texas Health and Safety Code. Texas statutes relating to health and safety.

(34) [ (33) ] TxHmL Program--The Texas Home Living Program, operated by DADS and approved by CMS in accordance with §1915(c) of the Social Security Act, that provides community-based services and supports to eligible individuals who live in their own homes or in their family homes.

§9.554.Description of the TxHmL Program.

(a) - (f) (No change.)

(g) TxHmL Program service components, as defined in §9.555 of this subchapter, are divided into two service categories, the Community Living Service Category and the Technical and Professional Supports Service Category. Each category has an annual cost limit referred to as the service category limit. The combined cost of the two service categories must not exceed the combined cost limit [ $10,000 ] per individual per IPC year specified in Appendix C of the TxHmL Program waiver application approved by CMS, which is available at http://www.dads.state.tx.us .

(1) The service category limit for the Community Living Service Category [ is $8,000 ] per individual per IPC year is specified in Appendix C of the TxHmL Program waiver application approved by CMS , unless an exception is approved in accordance with §9.559 of this subchapter (relating to Request to Increase Service Category Limits). This service category includes the following service components:

(A) - (G) (No change.)

(2) The service category limit for the Professional and Technical Supports Service Category [ is $2,000 ] per individual per IPC year is specified in Appendix C of the TxHmL Program waiver application approved by CMS, unless an exception is made in accordance with §9.559 of this subchapter. This service category includes the following service components:

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

(h) (No change.)

§9.556.Eligibility Criteria.

(a) An applicant or individual is eligible for the TxHmL Program if:

(1) (No change.)

(2) the applicant or individual meets the eligibility criteria for the ICF/MR LOC I [ ICF/MR I LOC ] as defined in §9.238 of this chapter (relating to Level of Care I Criteria) as determined by DADS according to §9.560 of this subchapter (relating to Level of Care (LOC) Determination);

(3) - (8) (No change.)

(9) the applicant or individual lives in the applicant's or individual's own home or family [ family's ] home.

(b) (No change.)

§9.558.Individual Plan of Care (IPC).

(a) - (c) (No change.)

(d) DADS reviews a submitted initial, revised, or renewal IPC and approves, modifies, or does not approve the IPC. DADS does not approve an IPC having a total cost that exceeds the combined cost limit specified in Appendix C of the TxHmL Program waiver application approved by CMS [ of more than $10,000 per IPC year ].

(e) - (f) (No change.)

§9.559.Request to Increase Service Category Limits.

(a) If the cost of either service category included on an IPC submitted to DADS exceeds the service category limits described in §9.554(g)(1) and (2) of this subchapter (relating to Description of the TxHmL Program) but the total annual cost of the IPC does not exceed the combined cost limit specified in Appendix C of the TxHmL Program waiver application approved by CMS [ $10,000 ], an individual's service coordinator must request from DADS an increase in the appropriate service category limit.

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

(b) - (f) (No change.)

§9.570.Permanent Discharge from the TxHmL Program and Suspension of TxHmL Program Services .

(a) - (e) (No change.)

(f) If an individual is temporarily admitted to one of the following settings, DADS suspends TxHmL Program services during that admission:

(1) a hospital;

(2) an ICF/MR licensed or subject to being licensed in accordance with Texas Health and Safety Code, Chapter 252 or certified by DADS;

(3) a nursing facility licensed or subject to being licensed in accordance with Texas Health and Safety Code, Chapter 242;

(4) a residential child-care operation licensed or subject to being licensed by DFPS;

(5) a facility licensed or subject to being licensed by the Department of State Health Services; or

(6) a residential facility operated by the Texas Youth Commission, a jail, or a prison.

§9.573.Reimbursement.

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

(c) Billing and payment reviews.

(1) DADS conducts billing and payment reviews to monitor a program provider's compliance with this subchapter and the TxHmL Program Service Definitions and Billing Guidelines . DADS conducts such reviews in accordance with the TxHmL Billing and Payment Review Protocol set forth in the TxHmL Program Service Definitions and Billing Guidelines . As a result of a billing and payment review, DADS may:

(A) recoup payments from a program provider; and

(B) based on the amount of unverified claims, require a program provider to develop and submit, in accordance with DADS instructions, a corrective action plan that improves the program provider's billing practices.

(2) A corrective action plan required by DADS in accordance with paragraph (1)(B) of this subsection must:

(A) include:

(i) the reason the corrective action plan is required;

(ii) the corrective action to be taken;

(iii) the person responsible for taking each corrective action; and

(iv) a date by which the corrective action will be completed that is no later than 90 calendar days after the date the program provider is notified the corrective action plan is required;

(B) be submitted to DADS within 30 calendar days after the date the program provider is notified the corrective action plan is required; and

(C) be approved by DADS before implementation.

(3) Within 30 calendar days after the corrective action plan is received by DADS, DADS notifies the program provider if the corrective action plan is approved or if changes to the plan are required.

(4) If DADS requires a program provider to develop and submit a corrective action plan in accordance with paragraph (1)(B) of this subsection and the program provider requests an administrative hearing for the recoupment in accordance with §9.575 of this chapter (relating to Program Provider's Right to Administrative Hearing), the program provider is not required to develop or submit a corrective action plan while a hearing decision is pending. DADS notifies the program provider if the requirement to submit a corrective action plan or the content of such a plan changes based on the outcome of the hearing.

(5) If the program provider does not submit the corrective action plan or complete the required corrective action within the time frames described in paragraph (2) of this subsection, DADS may impose a vendor hold on payments due to the program provider under the program provider agreement until the program provider takes the corrective action.

(6) If the program provider does not submit the corrective action plan or complete the required corrective action within 30 calendar days after the date a vendor hold is imposed in accordance with paragraph (5) of this subsection, DADS may terminate the program provider agreement.

§9.577.Corrective Action and Program Provider Sanctions.

(a) - (c) (No change.)

(d) If DADS determines that the program provider is out of compliance with between 10 and 20 percent of the certification principles at the end of the review exit conference, including any principles found out of compliance in the previous review, DADS does not certify the program provider and applies Level I sanctions against the program provider.

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

(3) If DADS implements vendor hold against the provider, DADS conducts a second on-site follow-up review between 30 and 45 calendar days after [ from ] the effective date of the vendor hold. Based on the results of the review, DADS:

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

(e) - (g) (No change.)

(h) Notwithstanding subsections (b) - (e) of this section, if DADS determines that a program provider has falsified documentation used to demonstrate compliance with this subchapter, DADS may, at its discretion, take any action described in this section against the program provider.

§9.580.Certification Principles: Quality Assurance.

(a) - (q) (No change.)

(r) A program provider must enter critical incident data in CARE no later than 30 days after the last day of the month being reported.

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

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

TRD-200800036

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: February 17, 2008

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

The Health and Human Services Commission (HHSC) proposes, on behalf of the Department of Aging and Disability Services (DADS), amendments to §19.101, concerning definitions; §19.403 concerning notice of rights and services; §19.701, concerning quality of life; §19.2004, concerning determinations and actions pursuant to inspections; and new §19.706, concerning resident group and family council, in Chapter 19, Nursing Facility Requirements for Licensure and Medicaid Certification.

BACKGROUND AND PURPOSE

The purpose of the amendments and new section is to implement some provisions of Senate Bill (SB) 131, 80th Legislature, 2007, which amended the Texas Health and Safety Code, Chapter 242. Texas Health and Safety Code, §242.0445 requires a nursing facility to provide a representative of the facility's family council with a copy of the final statement of violations no later than the fifth working day after the facility receives the statement. Texas Health and Safety Code, §§242.901 - 242.906 allow family councils to exist in nursing facilities. The formation of a resident or family group or council, in a facility, was authorized in federal regulations prior to the passage of SB 131. Senate Bill 131, however, defines a family council and more specifically outlines a nursing facility's duties related to the formation, maintenance, and operation of a family council.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §19.101 adds definitions of "family council" and "resident group."

The proposed amendment to §19.403 requires a nursing facility to provide written notification to a resident's family representative, upon admission of the resident, of the right to form a family council with the families of other residents. If a family council exists upon the admission of the resident, the amendment requires the nursing facility to provide the resident's family representative with written information pertaining to the meeting time, date, location, and contact person for the family council. The amendment also updates terminology to clarify language and corrects rule cross-references.

The proposed amendment to §19.701 removes paragraph (3), which outlines participation in resident and family groups. Paragraph (3) was incorporated into and most appropriately belongs in new §19.706.

The proposed new §19.706 allows for the formation and operation of a resident group or family council or both in a nursing facility. The new rule provides that: (1) a resident has the right to organize and participate in resident groups; (2) the families of residents have the right to organize a family council that may make recommendations to the facility regarding policy and operational decisions affecting resident care and quality of life and promote educational programs for the health and happiness of residents; and (3) a facility must hear and act upon the grievances of a resident group or family council, provide private space for the groups to meet inside the facility, provide a designated staff person to assist the groups, and allow staff or visitors to attend meetings at the resident group or family council's request. When a family council exists, a facility must: (1) designate a staff person to serve as liaison to the council; (2) provide a written response to a family council's request within five working days; and (3) permit a family council representative to talk about concerns with someone inspecting or surveying a facility. The new section prohibits a facility from: (1) terminating a family council; (2) interfering or tampering with outside mail addressed to the family council; and (3) interfering with the family council's formation, maintenance, or operation.

The proposed amendment to §19.2004 amends §19.2004(d) to state that a facility must provide a representative of the facility's family council with a copy of the final statement of violations no later than the fifth working day after the facility receives the statement. The amendment to §19.2004(e) clarifies rule language concerning the time frame in which a nursing facility must submit an acceptable plan of correction for violations of regulations.

The proposal also updates terminology and state agency names and corrects rule cross-references to ensure that the rule language reflects agency name changes resulting from the consolidation of health and human services agencies in 2004, and updates sections to make them consistent with other DADS rules.

FISCAL NOTE

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

SMALL BUSINESS AND MICRO-BUSINESS IMPACT ANALYSIS

DADS has determined that there is no adverse economic effect on small businesses or micro-businesses as a result of enforcing or administering the amendments and new section, because the proposal places no new requirements on businesses that would have a significant cost to business.

PUBLIC BENEFIT AND COSTS

Veronda Durden, DADS Assistant Commissioner for Regulatory Services, has determined that, for each year of the first five years the amendments and new section are in effect, the public benefit expected as a result of enforcing the amendments and new section is that family and nursing facility staff will work together to improve resident quality of care and solve resident issues and concerns, which may also improve resident quality of life.

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

TAKINGS IMPACT ASSESSMENT

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

PUBLIC COMMENT

Questions about the content of this proposal may be directed to Jennifer Morrison at (512) 438-4624 in DADS' Regulatory Services Division. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-019, Department of Aging and Disability Services W-615, P.O. Box 149030, Austin, Texas 78714-9030, or street address 701 West 51st St., Austin, TX 78751; faxed to (512) 438-5759; or e-mailed to rulescomments@dads.state.tx.us. To be considered, comments must be submitted no later than 30 days after the date of this issue of the Texas Register . The last day to submit comments falls on a Sunday; therefore, comments must be either (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered to DADS before 5:00 p.m. on DADS' last working day of the comment period; or (3) faxed or e-mailed by midnight on the last day of the comment period. When faxing or e-mailing comments, please indicate "Comments on Proposed Rule 019" in the subject line.

Subchapter B. DEFINITIONS

40 TAC §19.101

STATUTORY AUTHORITY

The amendment is proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including DADS; Texas Human Resources Code, §161.021, which provides that the Aging and Disability Services Council shall study and make recommendations to the HHSC executive commissioner and the DADS commissioner regarding rules governing the delivery of services to persons who are served or regulated by DADS; and Texas Health and Safety Code, §§242.901 - 242.906 and §242.0445, which governs the authority of family councils and the responsibility of nursing facilities related to family councils.

The amendment implements Texas Government Code, §531.0055, Texas Human Resources Code, §161.021, and Texas Health and Safety Code, §§242.901-242.906 and §242.0445.

§19.101.Definitions.

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

(1) - (41) (No change.)

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

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

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

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

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

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

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

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

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

(51) [ (50) ] HIV--Human Immunodeficiency Virus.

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

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

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

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

(56) [ (55) ] IV--Intravenous.

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

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

(59) [ (58) ] Licensed nursing home (facility) administrator--A person currently licensed by the Texas Board of Nursing Facility Administrators.

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

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

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

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

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

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

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

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

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

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

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

(71) [ (70) ] 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) [ (71) ] Medical director--A physician licensed by the Texas State Board of Medical Examiners, who is engaged by the nursing home to assist in and advise regarding the provision of nursing and health care.

(73) [ (72) ] Medical necessity (MN)--The determination that a recipient requires the services of licensed nurses in an institutional setting to carry out the physician's planned regimen for total care. A recipient's need for custodial care in a 24-hour institutional setting does not constitute a medical need.

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

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

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

(77) [ (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.

(78) [ (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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(107) [ (106) ] Physician assistant (PA)--

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(126) 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;

(C) participate in educational activities; or

(D) for any other purpose.

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

(128) [ (126) ] Restraint hold--

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(138) [ (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.

(139) [ (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.

(140) [ (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 State Board of Medical Examiners to supervise services rendered by specific PAs. A supervising physician may also be a physician who provides general supervision of a nurse practitioner providing services in a nursing facility.

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

(142) [ (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.

(143) [ (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.

(144) [ (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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

TRD-200800031

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: February 17, 2008

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

40 TAC §19.403

STATUTORY AUTHORITY

The amendment is proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including DADS; Texas Human Resources Code, §161.021, which provides that the Aging and Disability Services Council shall study and make recommendations to the HHSC executive commissioner and the DADS commissioner regarding rules governing the delivery of services to persons who are served or regulated by DADS; and Texas Health and Safety Code, §§242.901 - 242.906 and §242.0445, which governs the authority of family councils and the responsibility of nursing facilities related to family councils.

The amendment implements Texas Government Code, §531.0055, Texas Human Resources Code, §161.021, and Texas Health and Safety Code, §§242.901 - 242.906 and §242.0445.

§19.403.Notice of Rights and Services.

(a) The facility must inform the resident, the resident's next of kin or guardian, both orally and in writing, in a language that the resident understands, of the resident's [ his ] rights and all rules and regulations governing resident conduct and responsibilities during the stay in the facility. This notification must be made prior to or upon admission and during the resident's stay if changed.

(b) The facility must also inform the resident, upon admission and during the stay, in a language the resident understands, of the following:

(1) (No change.)

(2) a description of the protection of personal funds as described in §19.404 of this subchapter [ title ] (relating to Protection of Resident Funds);

(3) - (6) (No change.)

(c) Upon admission of a resident, a facility must:

(1) provide written information to the resident's family representative, in a language the representative understands, of the right to form a family council; and

(2) inform the resident's family representative, in writing, if a family council exists, of the council's meeting time, date, location and contact person.

(d) [ (c) ] Receipt of information in subsections (a) - (c) [ (a) - (b) ] of this section, and any amendments to it, must be acknowledged in writing by all parties receiving the information.

(e) [ (d) ] The facility must post a copy of the documents [ each document ] specified in subsections (a) - (b) of this section in a conspicuous location.

(f) [ (e) ] The resident or the resident's [ his ] legal representative has the following rights:

(1) upon an oral or written request to the facility , to access all records pertaining to the resident [ himself ], including clinical records, within 24 hours (excluding weekends and holidays); and

(2) after receipt of the resident's [ his ] records for inspection, to purchase photocopies of all or any portion of the records, at a cost not to exceed the community standard, upon request and two workdays advance notice to the facility.

(g) [ (f) ] The resident has the right to be fully informed in language the resident understands [ that he can understand ] of the resident's [ his ] total health status, including the resident's [ but not limited to, his ] medical condition.

(h) [ (g) ] The resident has the right to refuse treatment, to formulate an advance directive (as specified in §19.419 of this subchapter [ title ] (relating to Advance Directives [ and Medical Powers of Attorney) ]), and to refuse to participate in experimental research.

(1) If the resident refuses treatment, the resident [ he ] must be informed of the possible consequences.

(2) If the resident chooses to participate in experimental research, the resident [ he ] must be fully notified of the research and possible effects of the research. The research may be carried on only with the full written consent of the resident's physician, and the resident.

(3) Experimental research must comply with Federal Drug Administration regulations on human research as found in 45 Code of Federal Regulations, Part 4b, Subpart A.

(i) [ (h) ] The facility must inform a [ each ] resident before, or at the time of admission, and periodically during the resident's stay (if there are any changes), of services available in the facility and of charges for those services, including any charges for services not covered under Medicare or by the facility's per diem rate. Notice must be in writing, at least 30 days before [ in advance of ] the effective date of any changes in rates for services not covered by the current charge, or in Medicaid-certified facilities, by Medicaid.

(j) [ (i) ] The facility must provide [ furnish ] a written description of a resident's legal rights, which includes:

(1) a description of the manner of protecting personal funds, described in §19.404 of this subchapter [ title (relating to Protection of Resident Funds) ];

(2) a posting of names, addresses, and telephone numbers of all pertinent state client advocacy groups such as DADS, the state ombudsman program, the protection and advocacy network, and, in Medicaid-certified facilities, the Medicaid fraud control unit; and

(3) a statement that the resident may file a complaint with DADS concerning resident abuse, neglect, and misappropriation of resident property in the facility.

(k) [ (j) ] The facility must inform a [ each ] resident of the name, specialty, and way of contacting the physician responsible for the resident's [ his ] care.

(l) [ (k) ] Notification of changes.

(1) A facility must immediately inform the resident; consult with the resident's physician; and if known, notify the resident's legal representative or an interested family member when there is:

(A) an accident involving the resident that results in injury and has the potential for requiring physician intervention;

(B) a significant change in the resident's physical, mental, or psychosocial status (that is, a deterioration in health, mental, or psychosocial status in either life-threatening conditions or clinical complications);

(C) a need to alter treatment significantly (that is, a need to discontinue an existing form of treatment due to adverse consequences, or to commence a new form of treatment); or

(D) a decision to transfer or discharge the resident from the facility.

(2) The facility also must promptly notify the resident and, if known, the resident's legal representative or interested family member when there is:

(A) a change in room or roommate assignment as described in §19.701(4)(B) [ §19.701(5)(B) ] of this chapter [ title ] (relating to Quality of Life); or

(B) a change in resident rights under federal or state law or regulations as described in subsection (a) of this section.

(3) The facility must record and periodically update the address and phone number of the resident's family or legal representative, or a responsible party.

(m) [ (l) ] Additional requirements for Medicaid-certified facilities. Medicaid-certified facilities must:

(1) provide the resident with the state-developed notice of rights under §1919(e)(6) of the Social Security Act (see also §19.402 of this subchapter [ title ] (relating to Exercise of Rights));

(2) inform a [ each ] resident who is entitled to Medicaid benefits, in writing, at the time of admission to the nursing facility or, when the resident becomes eligible for Medicaid of:

(A) the items and services that are included in nursing facility services provided under the State Plan and for which the resident may not be charged;

(B) those other items and services that the facility offers and for which the resident may be charged, and the amount of charges for those services;

(3) inform each resident when changes are made to the items and services specified in paragraphs (2)(A) and (2)(B) of this subsection;

(4) provide [ furnish ] a written description of the requirements and procedures for establishing eligibility for Medicaid, including the right to request an assessment under §1924(c) of the Social Security Act, which:

(A) is used to determine the extent of a couple's nonexempt resources at the time of institutionalization; and

(B) attributes to the community spouse an equitable share of resources that cannot be considered available for payment toward the cost of the institutionalized spouse's medical care in the [ his ] process of spending down to Medicaid eligibility levels; and

(5) prominently display in the facility written information, and provide to residents and potential residents oral and written information about how to apply for and use Medicare and Medicaid benefits, and how to receive funds for previous payments covered by such benefits.

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

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

TRD-200800032

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: February 17, 2008

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

40 TAC §19.701, §19.706

STATUTORY AUTHORITY

The amendment and new section are proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including DADS; Texas Human Resources Code, §161.021, which provides that the Aging and Disability Services Council shall study and make recommendations to the HHSC executive commissioner and the DADS commissioner regarding rules governing the delivery of services to persons who are served or regulated by DADS; and Texas Health and Safety Code, §§242.901 - 242.906 and §242.0445, which governs the authority of family councils and the responsibility of nursing facilities related to family councils.

The amendment and new section implement Texas Government Code, §531.0055, Texas Human Resources Code, §161.021, and Texas Health and Safety Code, §§242.901 - 242.906 and §242.0445.

§19.701.Quality of Life.

A facility must care for its residents in a manner and in an environment that promotes maintenance or enhancement of each resident's quality of life. If children are admitted to a facility, care must be provided to meet their unique medical and developmental needs.

(1) Dignity. The facility must promote care for residents in a manner and in an environment that maintains or enhances each resident's dignity and respect in full recognition of the resident's [ his ] individuality.

(2) Self-determination and participation. The resident has the right to:

(A) choose activities, schedules, and health care consistent with the resident's [ his ] interests, assessments, and plans of care;

(B) (No change.)

(C) make choices about aspects of the resident's [ his ] life in the facility that are significant to the resident [ him ].

[ (3) Participation in resident and family groups.]

[ (A) A resident has the right to organize and participate in resident groups in the facility.]

[ (B) A resident's family has the right to meet in the facility with the families of other residents in the facility.]

[ (C) The facility must provide a resident or family group, if one exists, with private space.]

[ (D) Staff or visitors may attend meetings at the group's invitation.]

[ (E) The facility must provide a designated staff person responsible for providing assistance and responding to written requests that result from group meetings.]

[ (F) When a resident or family group exists, the facility must listen to the views and act upon the grievances and recommendations of residents and families concerning proposed policy and operational decisions affecting resident care and life in the facility.]

[ (G) The facility must assist residents to attend meetings.]

(3) [ (4) ] Participation in other activities. A resident has the right to participate in social, religious, and community activities that do not interfere with the rights of other residents in the facility.

(4) [ (5) ] Accommodation of needs. A resident has the right to:

(A) reside and receive services in the facility with reasonable accommodation of individual needs and preferences, except when the health or safety of the individual or other residents would be endangered; and

(B) receive notice before the resident's room or roommate in the facility is changed.

(5) [ (6) ] Accommodations for children. Pediatric residents should be matched with roommates of similar age and developmental levels.

§19.706.Resident Group and Family Council.

(a) A resident has the right to organize and participate in resident groups in a facility.

(b) A facility must assist residents who require assistance to attend resident group meetings.

(c) A resident's family has the right to meet in the facility with the families of other residents in the facility and organize a family council. A family council may:

(1) make recommendations to the facility proposing policy and operational decisions affecting resident care and quality of life; and

(2) promote educational programs and projects intended to promote the health and happiness of residents.

(d) If a resident group or family council exists, a facility must:

(1) listen to and consider the views and act upon the grievances and recommendations of residents and families concerning proposed policy and operational decisions affecting resident care and life in the facility;

(2) provide a resident group or family council with private space;

(3) provide a designated staff person responsible for providing assistance and responding to written requests that result from resident group and family council meetings; and

(4) allow staff or visitors to attend meetings at the resident group's or family council's invitation.

(e) If a family council exists, a facility must:

(1) upon written request, allow the family council to meet in a common meeting room of the facility at least once a month during hours mutually agreed upon by the family council and the facility;

(2) provide the family council with adequate space on a prominent bulletin board to post notices and other information;

(3) designate a staff person to act as the family council's liaison to the facility;

(4) respond in writing to written requests by the family council within five working days;

(5) include information about the existence of the family council in a mailing that occurs at least semiannually; and

(6) permit a representative of the family council to discuss concerns with an individual conducting an inspection or survey of the facility.

(f) Unless the resident objects, a family council member may authorize, in writing, another member to visit and observe a resident represented by the authorizing member.

(g) A facility must not limit the rights of a resident, a resident's family member, or a family council member to meet with an outside person, including:

(1) an employee of the facility during the employee's nonworking hours if the employee agrees; or

(2) a member of a nonprofit or government organization.

(h) A facility must not:

(1) terminate an existing family council;

(2) prevent or interfere with the family council from receiving outside correspondence addressed to the family council or open family council mail; or

(3) willfully interfere with the formation, maintenance, or operation of a family council, including interfering by:

(A) denying a family council the opportunity to accept help from an outside person;

(B) discriminating or retaliating against a family council participant; or

(C) willfully scheduling events in conflict with previously scheduled family council meetings, if the facility has other scheduling options.

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

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

TRD-200800033

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: February 17, 2008

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

40 TAC §19.2004

STATUTORY AUTHORITY

The amendment is proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including DADS; Texas Human Resources Code, §161.021, which provides that the Aging and Disability Services Council shall study and make recommendations to the HHSC executive commissioner and the DADS commissioner regarding rules governing the delivery of services to persons who are served or regulated by DADS; and Texas Health and Safety Code, §§242.901 - 242.906 and §242.0445, which governs the authority of family councils and the responsibility of nursing facilities related to family councils.

The amendment implements Texas Government Code, §531.0055, Texas Human Resources Code, §161.021, and Texas Health and Safety Code, §§242.901 - 242.906 and §242.0445.

§19.2004.Determinations and Actions Pursuant to Inspections.

(a) DADS determines [ The Texas Department of Human Services (DHS) will determine ] if a facility meets the licensing rules, including both physical plant and facility operation requirements.

(b) (No change.)

(c) At the conclusion of an inspection, survey, or investigation, the violations will be discussed in an exit conference with the facility's management. A written list of the violations will be left with the facility at the time of the exit conference; any additional violation that may be determined during review of field notes or preparation of the official final list will be communicated to the facility in writing within 10 working days after [ of ] the exit conference. DADS gives [ DHS will give ] the facility an additional exit conference regarding the additional violations.

(d) Not later than the fifth working day after the date a facility receives the final statement of violations under this section, the facility must provide a copy of the statement to a representative of the facility's family council.

(e) [ (d) ] Within 10 working days after receipt of the final statement of violations, the facility must [ Upon receipt of the final statement of violations, the facility will have 10 working days to ] submit an acceptable plan of correction to the regional director, except plans of correction under §19.2112(i) of this chapter [ title ] (relating to Administrative Penalties). An acceptable plan of correction must address the following areas:

(1) how corrective action will be accomplished for those residents affected by the violations [ violation(s) ];

(2) how the facility will identify other residents with the potential to be affected by the same violations [ violation(s) ];

(3) what measures will be put into place or systemic changes made to ensure the violations [ violation(s) ] will not recur;

(4) how the facility will monitor its corrective actions to ensure that the violations [ violation(s) ] are being corrected and will not recur; and

(5) [ include dates ] when corrective action will be completed.

(f) [ (e) ] A clear and concise summary in nontechnical language of each licensure inspection or complaint investigation will be provided by DADS [ DHS ] at the time the report of contact or similar document is provided.

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

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

TRD-200800034

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: February 17, 2008

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

The Health and Human Services Commission (HHSC) proposes, on behalf of the Department of Aging and Disability Services (DADS), amendments to §19.208, concerning renewal procedures and qualifications; §19.214, concerning criteria for denying a license or renewal of a license; and §19.2112, concerning administrative penalties; in Chapter 19, Nursing Facility Requirements for Licensure and Medicaid Certification.

BACKGROUND AND PURPOSE

The purpose of the amendments is to comply with some of the provisions of Senate Bill (SB) 1318, 80th Legislature, 2007, which amended the Texas Health and Safety Code, Chapter 242. Health and Safety Code, §242.066 was amended to allow DADS to assess an administrative penalty against a person who fails to notify DADS of a change of ownership prior to the effective date of the change.

The proposal also updates terminology and state agency names and corrects rule cross-references to ensure that the rule reflects changes resulting from the consolidation of health and human services agencies in 2004 and updates the sections to make them consistent with other DADS rules.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §19.208 states that a license holder must pay the required license fee upon submission of the renewal application. The amendment also updates agency names and rule cross-references.

The proposed amendment to §19.214 updates terminology and agency names, and corrects rule cross-references.

The proposed amendment to §19.2112 provides that an administrative penalty may be assessed if DADS is not notified of a change of ownership before the effective date of the change and sets the amount of this penalty. Agency names and rule cross-references are also updated in the amended section.

FISCAL NOTE

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

The effect on state government for the first five years the proposed amendments are in effect is an estimated increase in revenue of $4,014 in fiscal year (FY) 2008; $12,042 in FY 2009; $12,042 in FY 2010; $12,042 in FY 2011; and $12,042 in FY 2012.

SMALL BUSINESS AND MICRO-BUSINESS IMPACT ANALYSIS

DADS has determined that there may be an adverse economic effect on small businesses as a result of enforcing or administering the amendments because the rule allows DADS to assess an administrative penalty against nursing facilities that fail to notify DADS of a change of ownership before the effective date of the change of ownership.

DADS estimates that the number of small businesses subject to the proposed amendments is significantly less than 980. This estimate is based on DADS records, which indicate that of the 1117 licensed nursing facilities, approximately 980 of them are formed for the purpose of making a profit, one of the requirements for being a "small business." DADS does not have specific data regarding number of employees and gross receipts to determine what percentage of these facilities are operated by an entity that would meet the definition of a "small business." DADS estimates that there are no micro-businesses subject to the proposed amendments.

The potential economic impact for a small business is a $500 administrative penalty, but that penalty is incurred only if the small business fails to notify DADS of a change of ownership in accordance with the proposed amendments. For that reason, DADS projects that there will be minimal economic impact to small businesses subject to these amendments.

Several regulatory options were considered in determining how to achieve the purpose of the proposed rule. Statute gives DADS the option of assessing an administrative penalty if a nursing facility does not comply with rules related to notice of change of ownership. Therefore, DADS considered not imposing an administrative penalty against a facility that does not comply with the proposed rules. DADS did not consider this option consistent with its responsibility as a regulatory agency and, specifically, determined that this option would not adequately address its need to have up-to-date information regarding facility ownership. DADS currently assesses a wide range of administrative penalties and DADS also considered the use of a penalty as low as $100 to minimize the adverse economic impact on small businesses. DADS determined, however, that imposition of a penalty lower than $500 would not be effective in encouraging compliance with the rule by facilities of any size. Finally, DADS considered the use of graduated penalties based on facility size, but determined that implementation of such a system would have additional administrative costs associated with it that outweigh the benefits of such a system, especially since a small business can avoid the penalty all together by providing notice of a change of ownership in accordance with the rule.

PUBLIC BENEFIT AND COSTS

Veronda Durden, DADS Assistant Commissioner for Regulatory Services, has determined that, for each year of the first five years the amendments are in effect, the public benefit expected as a result of enforcing the amendments is that DADS' rules will be in compliance with state law.

Ms. Durden anticipates that there may be an economic cost of up to $500 to persons who are required to comply with the amendments because they allow DADS to assess an administrative penalty against a nursing facility for failure to notify DADS of a change of ownership in accordance with the rule. The amendments will not affect a local economy.

TAKINGS IMPACT ASSESSMENT

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

PUBLIC COMMENT

Questions about the content of this proposal may be directed to Jennifer Morrison at (512) 438-4624 in DADS' Regulatory Services Division. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-022, Department of Aging and Disability Services W-615, P.O. Box 149030, Austin, Texas 78714-9030, or street address 701 West 51st St., Austin, TX 78751; faxed to (512) 438-5759; or e-mailed to rulescomments@dads.state.tx.us. To be considered, comments must be submitted no later than 30 days after the date of this issue of the Texas Register . The last day to submit comments falls on a Sunday; therefore, comments must be either (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered to DADS before 5:00 p.m. on DADS' last working day of the comment period; or (3) faxed or e-mailed by midnight on the last day of the comment period. When faxing or e-mailing comments, please indicate "Comments on Proposed Rule 022" in the subject line.

Subchapter C. NURSING FACILITY LICENSURE APPLICATION PROCESS

40 TAC §19.208, §19.214

STATUTORY AUTHORITY

The amendments are proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including DADS; Texas Human Resources Code, §161.021, which provides that the Aging and Disability Services Council shall study and make recommendations to the HHSC executive commissioner and the DADS commissioner regarding rules governing the delivery of services to persons who are served or regulated by DADS; and Texas Health and Safety Code, Chapter 242, which authorizes DADS to license and regulate nursing facilities.

The amendments implement Texas Government Code, §531.0055, Texas Human Resources Code, §161.021; and Texas Health and Safety Code, §242.066.

§19.208.Renewal Procedures and Qualifications.

(a) (No change.)

(b) Each license holder must, at least 45 days before the expiration of the current license, file an application for renewal with DADS [ the Texas Department of Human Services (DHS) ]. DADS [ DHS ] considers that an individual has filed a timely and sufficient application for the renewal of a license if the license holder submits:

(1) a complete application to DADS [ DHS ], and DADS [ DHS ] receives the complete application at least 45 days before the current license expires;

(2) an incomplete application to DADS [ DHS ] with a letter explaining the circumstances which prevented the inclusion of the missing information, and DADS [ DHS ] receives the incomplete application and letter at least 45 days before the current license expires; or

(3) a complete application to DADS [ DHS ], DADS [ DHS ] receives the application during the 45-day period ending on the date the current license expires, and the individual pays a $500 administrative penalty.

(c) If the application is postmarked by the filing deadline, the application will be considered to be timely if received in DADS Regulatory Services, [ the ] Licensing and Credentialing Section [ of the state office of Long-Term Care-Regulatory, Texas Department of Human Services ], within 15 days after [ of ] the postmark.

(d) The appropriate license fee must be paid upon submission of the renewal application [ The application for renewal must contain the same information required for an original application as well as payment of the licensing fees ].

(e) The renewal of a license may be denied for the same reasons an original application for a license may be denied. See §19.214 of this subchapter [ title ] (relating to Criteria for Denying a License or Renewal of a License).

§19.214.Criteria for Denying a License or Renewal of a License.

(a) DADS may deny an initial license or refuse to renew a license if an applicant, or any person required to submit background and qualification information:

(1) does not have a satisfactory history of compliance with state and federal nursing home regulations. In determining whether there is a history of satisfactory compliance with federal or state regulations, DADS at a minimum may consider:

(A) - (E) (No change.)

(F) the number of violations relative to the number of facilities the applicant or any other person named in §19.201(f) of this subchapter [ title ] (relating to Criteria for Licensing) has been affiliated with during the last five years; and

(G) (No change.)

(2) has committed any act described in §19.2112(a)(2) - (7) [ §19.2112(a)(2) - (6) ] of this chapter [ title ] (relating to Administrative Penalties);

(3) - (5) (No change.)

(6) fails to pay the following fees, taxes, and assessments when due:

(A) licensing fees as described in §19.216 of this subchapter [ title ] (relating to License Fees);

(B) reimbursement of emergency assistance funds within one year after [ from ] the date on which the funds were received by the trustee in accordance with the provisions of §19.2116(e) and (f) of this chapter [ title ] (relating to Involuntary Appointment of a Trustee); or

(C) (No change.)

(7) discloses any of the following actions within the five-year period preceding the application:

(A) operation of a facility that has been decertified or [ and/or ] had its contract canceled under the Medicare or Medicaid program in any state or both ;

(B) - (I) (No change.)

(8) fails to meet minimum standards of financial condition as described in §19.201(e)(2)(A) of this chapter [ title ] and §19.1925(a) of this chapter [ title ] (relating to Financial Condition); or

(9) fails to notify DADS of a significant adverse change in financial condition as required under §19.1925[ (b) ] of this chapter [ title ].

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

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

Filed with the Office of the Secretary of State on January 4, 2008.

TRD-200800050

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: February 17, 2008

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

Division 2. LICENSING REMEDIES

40 TAC §19.2112

STATUTORY AUTHORITY

The amendment is proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including DADS; and 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.

The amendment implements Texas Government Code, §531.0055, and Texas Human Resources Code, §161.021.

§19.2112.Administrative Penalties.

(a) DADS [ The Texas Department of Human Services (DHS) ] may assess an administrative penalty against a person who:

(1) (No change.)

(2) makes a false statement, that the person knows or should know is false, of a material fact:

(A) on an application for issuance or renewal of a license or in an attachment to the application; or

(B) with respect to a matter under investigation by DADS [ DHS ];

(3) refuses to allow a representative of DADS [ DHS ] to inspect:

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

(4) willfully interferes with the work of a representative of DADS [ DHS ] or the enforcement of this chapter;

(5) willfully interferes with a representative of DADS [ DHS ] preserving evidence of a violation of a rule, standard, or order adopted or license issued under Chapter 242, Health and Safety Code ; [ . ]

(6) fails to pay a penalty assessed by DADS [ DHS ] under Chapter [ chapter ] 242, Health and Safety Code by the 10th day after the date the assessment of the penalty becomes final ; or [ . ]

(7) fails to notify DADS of a change of ownership before the effective date of the change of ownership.

(b) The persons against whom DADS [ DHS ] may impose an administrative penalty include:

(1) - (4) (No change.)

(c) DADS [ DHS ] recognizes the limited immunity from civil liability granted to volunteers serving as officers, directors or trustees of charitable organizations, under the Charitable Immunity and Liability Act of 1987 (Texas Civil Practice and Remedies Code, Chapter 84).

(d) In determining whether a violation warrants an administrative penalty, DADS [ DHS ] considers the facility's history of compliance and whether:

(1) - (4) (No change.)

(5) the violation is of a type established elsewhere in DADS [ DHS's ] rules concerning licensing standards for long term care facilities.

(e) In determining the amount of the penalty, DADS [ DHS ] considers at a minimum:

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

(f) Administrative penalties may be levied for each violation found in a single survey. Each day of a continuing violation constitutes a separate violation. The administrative penalties for each day of a continuing violation cease on the date the violation is corrected. A violation that is the subject of a penalty is presumed to continue on each successive day until it is corrected. The date of correction alleged by the facility in its written plan of correction will be presumed to be the actual date of correction unless it is later determined by DADS [ DHS ] that the correction was not made by that date or was not satisfactory.

(1) Table of administrative penalties. The following table contains the gradations of penalties in accordance with the relative seriousness of the violation. While the table addresses most administrative penalty situations, administrative penalties for unique circumstances to which the table does not apply are established elsewhere in the requirements. The amount of the administrative penalty listed in subsection (a)(7) of this section is $500.

Figure: 40 TAC §19.2112(f)(1)

(2) (No change.)

(g) The penalties for a violation of the requirement to post notice of the suspension of admissions, additional reporting requirements found at §19.601(a) of this chapter [ title ] (relating to Resident Behavior and Facility Practice), or residents' rights cannot exceed $1,000 a day for each violation, unless the violation of a resident's right also violates a rule in Subchapter H of this chapter (relating to Quality of Life), or Subchapter J of this chapter (relating to Quality of Care).

(h) (No change.)

(i) DADS [ DHS ] may issue a preliminary report regarding an administrative penalty. Within 10 days of the issuance of the preliminary report, DADS [ DHS ] will give the facility written notice of the recommendation for an administrative penalty. The notice will include:

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

(3) a statement of whether the violation is subject to correction under §19.2114 of this subchapter [ title ] (relating to Right to Correct) and if the violation is subject to correction, a statement of:

(A) the date on which the facility must file a plan of correction (POC) to be approved by DADS [ DHS ]; and

(B) (No change.)

(4) (No change.)

(j) Within 20 days after the date on which written notice of recommended assessment of a penalty is sent to a facility, the facility must give DADS [ DHS ] written consent to the penalty, make a written request for a hearing, or if the violation is subject to correction, submit a plan of correction in accordance with §19.2114 of this subchapter [ title ] (relating to Right to Correct). If the facility does not make a response within the 20-day period, DADS [ DHS ] will assess the penalty.

(k) The procedures for notification of recommended assessment, opportunity for hearing, actual assessment, payment of penalty, judicial review, and remittance will be in accordance with Health and Safety Code, §§242.067 - 242.069. Hearings will be held in accordance with Health and Human Services Commission's rules at 1 TAC, Chapter 357, Subchapter I [ DHS's formal hearing procedures in Chapter 79 of this title (relating to Legal Services) ]. Interest on penalties is governed by Health and Safety Code §242.069(g).

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

Filed with the Office of the Secretary of State on January 4, 2008.

TRD-200800051

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: February 17, 2008

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

40 TAC §19.2614

The Health and Human Services Commission (HHSC) proposes, on behalf of the Department of Aging and Disability Services (DADS), new §19.2614, concerning customized power wheelchairs, in Chapter 19, Nursing Facility Requirements for Licensure and Medicaid Certification.

BACKGROUND AND PURPOSE

The purpose of the new section is to allow a nursing facility to procure a customized power wheelchair (CPWC) for a Medicaid-eligible nursing facility resident. The nursing facility must purchase the CPWC if the need for the CPWC is identified and the nursing facility can receive reimbursement through a DADS prior approval reimbursement system. CPWCs have been available to a Medicaid-eligible nursing facility resident with personal funds as an incurred medical expense.

The addition of CPWCs as a service in the nursing facility Medicaid program is a provision of the settlement agreement in the lawsuit filed in federal court against HHSC and DADS entitled LeCompte, et al. v. Hawkins, et al. , which was settled effective June 29, 2007. The federal Centers for Medicare and Medicaid Services (CMS) has approved a Medicaid state plan amendment to add this service to the nursing facility Medicaid program.

SECTION-BY-SECTION SUMMARY

The proposed new §19.2614 adds the requirements that a nursing facility must follow to obtain reimbursement from DADS for purchasing a CPWC for a Medicaid-eligible resident. Upon request by the resident or the resident's legal representative, the nursing facility must procure an evaluation of the resident, by a licensed occupational or physical therapist, for a CPWC. The new section also requires the nursing facility to obtain prior authorization from HHSC, or its designee, before purchasing the CPWC. The nursing facility and resident will be notified in writing whether the prior authorization request was denied or approved. The resident can request a Medicaid fair hearing if HHSC or its designee denies a prior authorization request. After receiving prior approval, the nursing facility must purchase the CPWC. The nursing facility must seek alternative funding sources to pay for the CPWC before requesting a reimbursement from DADS. If the nursing facility fails to obtain prior authorization or submit the necessary documentation to HHSC or its designee, the nursing facility is responsible for the cost of the CPWC. The new section also specifies that the CPWC is the personal property of the resident, usable only by the resident, and transferable to the resident's estate if death occurs. The nursing facility is responsible for repair and maintenance of the CPWC.

FISCAL NOTE

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

The effect on state government for the first five years the proposed new section is in effect is an estimated additional cost of $664,477 in fiscal year (FY) 2008; $672,910 in FY 2009; $522,769 in FY 2010; $535,838 in FY 2011; and $549,234 in FY 2012.

SMALL BUSINESS AND MICRO-BUSINESS IMPACT ANALYSIS

DADS has determined that there is no adverse economic effect on small businesses or micro-businesses as a result of enforcing or administering the new section, because the nursing facility will be able to obtain reimbursement for the CPWC if the required documentation and assessments are provided to and approved by HHSC or its designee.

PUBLIC BENEFIT AND COSTS

Barry Waller, DADS Assistant Commissioner for Provider Services, has determined that, for each year of the first five years the new section is in effect, the public benefit expected as a result of enforcing the new section is Medicaid-eligible individuals will now have access to CPWCs to aid their mobility and independence. Historically, CPWCs were only available with personal funds or as an incurred medical expense. Making CPWCs available to qualified nursing facility residents will allow access to this benefit by a much larger percentage of the nursing facility population.

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

TAKINGS IMPACT ASSESSMENT

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

PUBLIC COMMENT

Questions about the content of this proposal may be directed to Geri Willems at (512) 438-3159 in DADS' Provider Services Division. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-018, Department of Aging and Disability Services W-615, P.O. Box 149030, Austin, Texas 78714-9030, or street address 701 West 51st St., Austin, TX 78751; faxed to (512) 438-5759; or e-mailed to rulescomments@dads.state.tx.us. To be considered, comments must be submitted no later than 30 days after the date of this issue of the Texas Register . The last day to submit comments falls on a Sunday; therefore, comments must be either (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered to DADS before 5:00 p.m. on DADS' last working day of the comment period; or (3) faxed or e-mailed by midnight on the last day of the comment period. When faxing or e-mailing comments, please indicate "Comments on Proposed Rule 018" in the subject line.

STATUTORY AUTHORITY

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

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

§19.2614.Customized Power Wheelchairs.

(a) Customized power wheelchairs (CPWCs) are a service in the nursing facility Medicaid program for Medicaid-eligible nursing facility residents when medically necessary and prior authorized by the Health and Human Services Commission (HHSC) or its designee.

(b) A CPWC is a wheelchair that consists of a power mobility base and customized seating system.

(1) The power mobility base may include programmable electronics and may utilize alternate input devices.

(2) The wheelchair must be medically necessary, adapted, and fabricated to meet the individualized needs of the resident, and intended for the exclusive and ongoing use of the resident.

(3) Components of the customized seating system must be in part or entirely usable only by the resident for whom the power wheelchair is adapted and fabricated.

(c) When requested by a resident or the resident's legal representative, the nursing facility must procure an evaluation for a CPWC from a licensed physical or occupational therapist. If the evaluation recommends a CPWC, the nursing facility must submit all required forms to HHSC or its designee for prior authorization.

(d) After receiving prior authorization from HHSC or its designee, the facility must purchase the CPWC.

(e) To be eligible for reimbursement, the nursing facility must request and receive prior authorization from HHSC or its designee before purchasing a CPWC. The prior authorization request must include:

(1) a completed CPWC order form;

(2) an occupational or physical therapy evaluation of the resident;

(3) a statement signed by the resident's attending physician that the CPWC is medically necessary; and

(4) a detailed breakdown of proposed CPWC specifications from the customized power wheelchair supplier.

(f) To be eligible for reimbursement for a CPWC, the nursing facility must obtain an evaluation of the resident by an occupational or physical therapist licensed in the state of Texas prior to purchase of the CPWC. The occupational or physical therapy evaluation must include:

(1) a diagnosis relevant to the need for a CPWC;

(2) the specific CPWC and adaptations being recommended;

(3) a description of how the CPWC will meet the specific needs of the resident;

(4) a description of specific training needs for use of this device including training needs of the resident, nursing facility staff, and family (when applicable); and

(5) written documentation from the therapist indicating that the resident is physically and cognitively capable of independently managing a power wheelchair.

(g) Payment for physical or occupational therapy evaluations may be obtained for eligible residents in the same manner as payment for physical or occupational therapy evaluations is obtained in the Specialized and Rehabilitative Services programs, as described in §19.1306 of this chapter (relating to Payment for Specialized and Rehabilitative Services).

(h) Following a review of the prior authorization request by HHSC or its designee, the nursing facility and resident will receive a written approval or denial of the request. If the request is approved, the nursing facility will promptly make arrangements to purchase the CPWC. If the request is denied, HHSC or its designee will send a notice of denial to the nursing facility resident informing the resident of the right to request a Medicaid fair hearing in accordance with 1 TAC Chapter 357, Subchapter A.

(i) A facility must submit the request for reimbursement to DADS within one year after the date of purchase of the CPWC. If DADS denies a request for reimbursement because the facility failed to obtain prior authorization or submit the necessary documentation for the CPWC to HHSC or its designee, the facility is responsible for the cost of the CPWC and may not charge the cost to the resident or family.

(j) A facility must fully explore and use other funding sources to pay for a CPWC before submitting the request for reimbursement to DADS. If another funding source will pay for part of the CPWC expense, the facility may request reimbursement for the balance if the requirements in subsections (d) - (f) of this section are met. If another funding source is available, DADS reimburses only up to the remaining balance after other sources are fully utilized.

(k) Only the resident can use the CPWC, and it must be identified as the personal property of the resident.

(l) The resident's comprehensive care plan must document that the CPWC is medically necessary.

(m) Upon discharge from the facility, the resident retains the CPWC. If the resident dies, the CPWC becomes property of the resident's estate. As part of the estate, the CPWC is subject to all applicable Medicaid Estate Recovery Program (MERP) requirements, as detailed in 1 TAC Chapter 373. If the CPWC is donated or sold to the facility by the resident or executor of the resident's estate, the transaction must be documented in accordance with §19.416 of this chapter (relating to Personal Property).

(n) As required by §19.2601(b)(8)(C) of this chapter (relating to Vendor Payment (Items and Services Included)), the nursing facility is required to maintain and repair all medically necessary equipment for its residents, including CPWCs obtained under this section.

(o) Requests for replacement of a CPWC must be submitted in the same manner as the original prior authorization of the CPWC outlined in this section. A replacement CPWC may be requested no earlier than five years after the original date of purchase, unless the request includes an order from the prescribing physician familiar with the resident and an assessment by a physician or a licensed occupational or physical therapist with documentation supporting why the current CPWC no longer meets the resident's needs. DADS does not authorize replacement in situations where the CPWC has been abused or neglected.

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

Filed with the Office of the Secretary of State on January 4, 2008.

TRD-200800048

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: February 17, 2008

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

40 TAC §94.2, 94.3, 94.9 - 94.11

The Health and Human Services Commission (HHSC) proposes, on behalf of the Department of Aging and Disability Services (DADS), amendments to §94.2, concerning definitions; §94.3, concerning nurse aide training and competency evaluation program (NATCEP) requirements; §94.9, concerning waiver, reciprocity, and exemption requirements; §94.10, concerning registry, findings, and inquiries; and §94.11, concerning requirements for recertification, in Chapter 94, Nurse Aides.

BACKGROUND AND PURPOSE

The purpose of the amendments is to allow the Nurse Aide Registry to deem a nurse aide to be unemployable based on a finding that the nurse aide is listed as unemployable in the Employee Misconduct Registry.

DADS manages the Employee Misconduct Registry in accordance with Texas Health and Safety Code, Chapter 253, and the Nurse Aide Registry in accordance with Texas Health and Safety Code, Chapter 250. The Employee Misconduct Registry is a state registry that maintains a record of unlicensed employees of facilities licensed by DADS and adult foster care providers who have engaged in misconduct. The Nurse Aide Registry is a federally mandated registry that maintains records regarding the status of individuals who have received nurse aide certification, including whether the person has committed abuse, neglect, or misappropriation. Facilities and agencies licensed by DADS, certain contracted providers, and state schools consult both registries for the purpose of determining employability of an applicant, but a person listed on the Employee Misconduct Registry is not necessarily designated as unemployable in the Nurse Aide Registry. The proposal will allow DADS to designate a nurse aide as unemployable on the Nurse Aide Registry if the nurse aide is listed on the Employee Misconduct Registry.

The proposal also updates terminology and state agency names and corrects rule cross-references to ensure that the rule reflects changes resulting from the consolidation of health and human services agencies in 2004 and updates the sections to make them consistent with other DADS rules.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §94.2 updates references to DADS and the Texas Board of Nursing.

The proposed amendment to §94.3 adds language to §94.3(k)(2) - (3) stating that the NATCEP must ensure that trainees are not listed as unemployable on the Employee Misconduct Registry and have not been convicted of a criminal offense listed in Texas Health and Safety Code, §250.006. The amendment also updates references to DADS.

The proposed amendment to §94.9 adds language to §94.9(a) - (c) requiring that certain nurse aides who are being deemed competent and are being placed on the Nurse Aide Registry as employable by waiver of the requirements must also not be listed as unemployable on the Employee Misconduct Registry and not have been convicted of a criminal offense listed in Texas Health and Safety Code, §250.006, in order to be placed on the Nurse Aide Registry as employable.

The proposed amendment to §94.10 adds language in §94.10(l) stating that if a nurse aide has a finding of abuse, neglect, or misappropriation and is listed as unemployable in the Employee Misconduct Registry, DADS will enter the finding in the Nurse Aide Registry. The amendment also adds language stating that the due process procedure offered to an individual prior to a finding being entered in the Employee Misconduct Registry satisfies the due process for placement of the individual's name in the Nurse Aide Registry.

The proposed amendment to §94.11 amends §94.11(b) to state that a person who has been removed from active status on the Nurse Aide Registry must successfully complete a new competency evaluation program or a new NATCEP to be restored to active status. The amendment also adds §94.11(c) and §94.11(d) to state that a nurse aide for whom a finding of abuse, neglect or misappropriation is listed in either the Nurse Aide Registry or Employee Misconduct Registry or has been convicted of a criminal offense listed in Texas Health and Safety Code, §250.006, will not be recertified.

FISCAL NOTE

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

SMALL BUSINESS AND MICRO-BUSINESS IMPACT ANALYSIS

DADS has determined that there is no adverse economic effect on small businesses or micro-businesses as a result of enforcing or administering the amendments, because the amendments increase coordination between the Employee Misconduct Registry and Nurse Aide Registry.

PUBLIC BENEFIT AND COSTS

Veronda Durden, DADS Assistant Commissioner for Regulatory Services, has determined that, for each year of the first five years the amendments are in effect, the public benefit expected as a result of enforcing the amendments is the enhancement of DADS' ability to protect the public by preventing individuals found to be unemployable under the Employee Misconduct Registry rules from maintaining a nurse aide certification.

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

TAKINGS IMPACT ASSESSMENT

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

PUBLIC COMMENT

Questions about the content of this proposal may be directed to Jennifer Morrison at (512) 438-4624 in DADS' Regulatory Services Division. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-008, Department of Aging and Disability Services W-615, P.O. Box 149030, Austin, Texas 78714-9030, or street address 701 West 51st St., Austin, TX 78751; faxed to (512) 438-5759; or e-mailed to rulescomments@dads.state.tx.us. To be considered, comments must be submitted no later than 30 days after the date of this issue of the Texas Register . The last day to submit comments falls on a Sunday; therefore, comments must be either (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered to DADS before 5:00 p.m. on DADS' last working day of the comment period; or (3) faxed or e-mailed by midnight on the last day of the comment period. When faxing or e-mailing comments, please indicate "Comments on Proposed Rule 008" in the subject line.

STATUTORY AUTHORITY

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

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

§94.2.Definitions.

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

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

(4) Competency evaluation program (CEP)--A skills examination and a written or oral examination approved by DADS [ the Texas Department of Human Services (DHS) ].

(5) Curriculum--The publication titled Texas Curriculum for Nurse Aides in Long Term Care Facilities developed by DADS [ DHS ].

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

(7) [ (6) ] DHS-- Formerly, this 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 are now the responsibility of the Texas Health and Human Services Commission (HHSC) .

(8) [ (7) ] Direct supervision--Actual observation of students performing tasks in a nurse aide training and competency evaluation program (NATCEP).

(9) [ (8) ] Entity--An educational institution, organization of any kind, facility or division thereof, or licensed nursing facility that does not participate in Medicare, Medicaid, or dually participating facility (Medicare and Medicaid).

(10) [ (9) ] Examination--A CEP or the competency evaluation portion of a training and competency evaluation program.

(11) [ (10) ] Facility--A nursing facility (Medicaid only), skilled nursing facility (Medicare), or dually participating nursing facility (Medicaid and Medicare).

(12) [ (11) ] Facility-based program--NATCEP offered by or in a facility.

(13) [ (12) ] General supervision--The provision of necessary guidance and ultimate responsibility for the NATCEP.

(14) [ (13) ] Licensed health professional--A:

(A) physician;

(B) physician assistant;

(C) nurse practitioner;

(D) physical, speech, or occupational therapist;

(E) physical or occupational therapy assistant;

(F) registered professional nurse;

(G) licensed vocational nurse; or

(H) certified social worker.

(15) [ (14) ] Licensed nurse--A registered nurse or licensed vocational nurse.

(16) [ (15) ] Licensed vocational nurse (LVN)--An individual currently licensed by the Texas Board of Nursing [ Vocational Nurse Examiners ] to practice as a licensed vocational nurse.

(17) [ (16) ] Misappropriation of resident property--The deliberate misplacement, exploitation, or wrongful, temporary or permanent use of a resident's belongings or money without the resident's consent.

(18) [ (17) ] Neglect--The failure to provide goods and services necessary to avoid physical harm, mental anguish, or mental illness.

(19) [ (18) ] Non-facility-based program--A NATCEP not offered by or in a facility.

(20) [ (19) ] Nurse aide--An individual providing nursing or nursing-related services to residents in a facility under the supervision of a licensed nurse who has successfully completed a NATCEP approved by the state or has been determined competent by waiver or reciprocity and is listed as active on the [ DHS ] Nurse Aide Registry. This definition does not include an individual who is a licensed health professional or a registered dietitian or who volunteers such services without monetary compensation.

(21) [ (20) ] Nurse Aide Registry--Also referred to as the registry, a state listing of all individuals who have satisfactorily completed a NATCEP or a CEP approved by DADS [ DHS ] or qualified by waiver or reciprocity and are deemed active and employable in a nursing facility. Nurse aides who have a finding entered on the registry of committing an act of abuse, neglect, or misappropriation of resident or consumer property are deemed unemployable in a nursing facility pursuant to 42 CFR, §483.156.

(22) [ (21) ] Nurse aide training and competency evaluation program (NATCEP)--A program approved by DADS [ DHS ] to train and evaluate an individual's ability to act in the capacity of a nurse aide for the purpose of working in a nursing facility.

(23) [ (22) ] Nursing facility--An institution that participates in the Medicaid program or dually participates in both Medicaid and Medicare programs as defined in the Social Security Act, §1919(a), 42 United States Code Annotated §1396r.

(24) [ (23) ] Nursing services--Services provided by nursing personnel that include, but are not limited to:

(A) promotion and maintenance of health;

(B) prevention of illness and disability;

(C) management of health care during acute and chronic phases of illness;

(D) guidance and counseling of individuals and families; and

(E) referral to other health care providers and community resources when appropriate.

(25) [ (24) ] Official forms--The forms required and provided by DADS [ DHS ] or its designees.

(26) [ (25) ] Performance record--An evaluation of the trainee's performance of major duties and skills taught by the program.

(27) [ (26) ] Program--A nurse aide training and competency evaluation program (NATCEP).

(28) [ (27) ] Program director--An individual approved by DADS [ DHS ] to provide general supervision of a NATCEP in accordance with §94.5 of this title (relating to Program Director, Program Instructor, Supplemental Trainers, and Skills Examiner Requirements).

(29) [ (28) ] Program instructor--An individual approved by DADS [ DHS ] who is responsible for conducting the training in a NATCEP and meets the requirements in §94.5 of this title.

(30) [ (29) ] Registered nurse (RN)--An individual currently licensed by the Texas Board of Nursing [ Nurse Examiners for the State of Texas ] to practice professional nursing.

(31) [ (30) ] Resident--A person accepted for care or residing in a facility.

(32) [ (31) ] Skilled nursing facility--A nursing facility or distinct part of a facility that participates in the Medicare program as defined in the Social Security Act, §1819(a), 42 United States Code Annotated §1395i-3.

(33) [ (32) ] Skills examiner--A qualified individual responsible for conducting the competency evaluation portion of a NATCEP in accordance with §94.5 of this title.

(34) [ (33) ] Supplemental trainers--Licensed health professionals who are qualified to participate in teaching a program in accordance with §94.5 of this title.

(35) [ (34) ] Trainee--An individual who is enrolled and attending, but has not completed a program.

§94.3.Nurse Aide Training and Competency Evaluation Program (NATCEP) Requirements.

(a) (No change.)

(b) A person or entity that desires to offer a NATCEP must file a complete application for approval on official forms prescribed by DADS [ DHS ].

(c) - (f) (No change.)

(g) DADS [ DHS ] will not approve a NATCEP offered by or in a facility if, within the previous two years, the facility:

(1) - (7) (No change.)

(h) (No change.)

(i) Each NATCEP must teach the curriculum established by DADS [ DHS ], and as described in the Code of Federal Regulations, Title 42, §483.152, to include at least 16 introductory hours of training in the following areas before any direct contact with a resident:

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

(6) basic nursing skills , including :

(A) - (E) (No change.)

(7) personal care skills, including [ but not limited to ]:

(A) - (H) (No change.)

(8) mental health and social service needs , including :

(A) - (E) (No change.)

(9) care of cognitively impaired residents , including :

(A) - (E) (No change.)

(10) basic restorative services , including :

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

(11) resident's rights , including :

(A) - (G) (No change.)

(j) A NATCEP must have a DADS-approved [ DHS-approved ] program director and program instructor at the time of initial approval and during the time training occurs who meet the requirements of §94.5(a) and (b) of this title (relating to Program Director, Program Instructor, Supplemental Trainers, and Skills Examiner Requirements).

(k) A NATCEP must ensure that trainees:

(1) (No change.)

(2) are not listed as unemployable on the Employee Misconduct Registry established pursuant to Texas Health and Safety Code, Chapter 253;

(3) have not been convicted of a criminal offense listed in Texas Health and Safety Code, §250.006;

(4) [ (2) ] complete at least the first 16 hours of training (Section I of the curriculum) before any direct contact with a resident;

(5) [ (3) ] do not perform any services for which they have not been trained and have been found to be proficient by an instructor;

(6) [ (4) ] are under the direct supervision of a licensed nurse when performing skills on individuals as part of a NATCEP;

(7) [ (5) ] are under the general supervision of a licensed nurse when providing services to a resident; and

(8) [ (6) ] are clearly identified as trainees during the clinical training.

(l) A NATCEP must notify DADS [ DHS ] of any change in the information presented in an approved application, including a change in program director or program instructor. DADS [ DHS ] must approve such changes before the effective date of the change. DADS [ DHS ] will conduct a review of the program if it determines the changes are substantive.

(m) Each NATCEP must use a DADS [ DHS ] performance record to account for major duties or skills taught, trainee performance of duty or skill, satisfactory or unsatisfactory performance, and name of instructor supervising the performance. At the completion of the NATCEP, the trainee and his or her employer, if applicable, will receive a copy of the performance record.

(n) The NATCEP must maintain records that must be available to DADS [ DHS ] or its designees at any reasonable time, which include for each new session of the NATCEP:

(1) - (4) (No change.)

(o) - (q) (No change.)

(r) DADS [ DHS ] must approve a NATCEP before operation or solicitation or enrollment of trainees.

(s) DADS [ DHS ] approval of a NATCEP covers only approval of the required DADS [ DHS ] curriculum and hours and should not be considered approval of additional content or hours.

(t) (No change.)

§94.9.Waiver, Reciprocity, and Exemption Requirements.

(a) A nurse aide will be deemed competent and placed on the Nurse Aide Registry by waiver of the requirements if the individual:

(1) (No change.)

(2) verifies employment as a nurse aide who performed nursing or nursing-related services for monetary compensation at least every two years since July 1, 1989; [ and ]

(3) is not listed as unemployable on the Employee Misconduct Registry established pursuant to Texas Health and Safety Code, Chapter 253;

(4) has not been convicted of a criminal offense listed in Texas Health and Safety Code, §250.006; and

(5) [ (3) ] completes the documentation required by DADS [ DHS ].

(b) A nurse aide who is listed in active status on a registry in another state will be placed on the Nurse Aide Registry by reciprocity if:

(1) the state nurse aide registry in question is in compliance with the Act; [ and ]

(2) the individual is not listed as unemployable on the Employee Misconduct Registry established pursuant to Texas Health and Safety Code, Chapter 253;

(3) the individual has not been convicted of a criminal offense listed in Texas Health and Safety Code, §250.006; and

(4) [ (2) ] the individual completes the required [ DHS ] documentation.

(c) An individual will be eligible to take the CEP with an exemption from training if the individual:

(1) (No change.)

(2) is not listed as unemployable on the Employee Misconduct Registry established pursuant to Texas Health and Safety Code, Chapter 253;

(3) has not been convicted of a criminal offense listed in Texas Health and Safety Code, §250.006;

(4) [ (2) ] submits documentation required [ by DHS ] to verify eligibility to take the CEP;

(5) [ (3) ] arranges for a facility or NATCEP to serve as an examination site; and

(6) [ (4) ] provides the original [ DHS ] letter of approval to take the CEP to the skills examiner before taking the examination.

§94.10.Registry, Findings, and Inquiries.

(a) Each individual listed on the registry will keep DADS [ DHS ] informed of his or her current address and telephone number.

(b) Nurse aide certification expires 24 months after being added to the Nurse Aide Registry or after the last date of verified employment. To maintain active Nurse Aide Registry status, the following requirements must be met:

(1) Facilities must submit a DADS [ DHS ] form to DADS [ DHS ] annually to document all nurse aides who are performing or have performed paid nursing or nursing-related services at the facility during the past year.

(2) A nurse aide must submit a DADS [ DHS ] form to DADS [ DHS ] to document that the nurse aide has performed paid nursing or nursing-related services, unless documentation was submitted by the facility or facilities at which he or she was employed.

(c) DADS [ DHS ] reviews and investigates allegations of abuse, neglect, or misappropriation of resident property by a nurse aide employed in a facility. If there is a finding of an alleged act of abuse, neglect, or misappropriation of resident property by a nurse aide, before entry of the finding on the Nurse Aide Registry, DADS [ DHS ] will provide the nurse aide an opportunity to demonstrate compliance with the law through an informal reconsideration and a formal hearing as provided in 1 TAC Chapter 357 (relating to Hearings) [ Chapter 79, Subchapter Q, of this title (relating to Formal Appeals) ] and 42 Code of Federal Regulations, §488.335.

(d) Informal reconsideration procedures are:

(1) DADS [ DHS ] will provide notice to the nurse aide of the facts or conduct alleged to warrant the proposed finding and the nurse aide's right to an informal reconsideration to show compliance with the law for the retention of his or her certificate;

(2) the nurse aide may submit a written request for an informal reconsideration to the local Regulatory Services [ Long Term Care-Regulatory ] office within 10 calendar days after [ of ] the date of receipt of DADS' [ DHS's ] notice.

(3) This informal reconsideration will be limited to a review of documentation submitted by the nurse aide and information DADS [ DHS ] used as the basis for its proposed finding and will not be conducted as an adversary hearing.

(4) DADS [ DHS ] will give the nurse aide a written affirmation or reversal of the proposed finding.

(5) If DADS [ DHS ] does not reverse the finding or the nurse aide fails to attend the scheduled informal reconsideration, a notice of adverse action and right to a formal hearing is sent to the nurse aide.

(e) A nurse aide may request a formal hearing within 30 days after [ from ] receipt of DADS' [ DHS's ] notice of adverse action in accordance with 1 TAC Chapter 357 [ Chapter 79, Subchapter Q, of this title ].

(1) If the nurse aide fails to request a hearing, DADS [ DHS ] will enter the finding on the Nurse Aide Registry.

(2) If the nurse aide or representative fails to appear at the scheduled hearing, the Administrative Law Judge may sustain DADS' [ DHS's ] finding and DADS [ DHS ] will enter the finding on the Nurse Aide Registry.

(3) If a hearing is conducted and the finding of an alleged act of abuse, neglect, or misappropriation of resident property is upheld:

(A) the nurse aide will be informed of the final decision within 120 days after [ from ] the date the request was received by DADS [ DHS ]; and

(B) DADS [ DHS ] will enter the finding on the Nurse Aide Registry.

(f) If an alleged act of abuse, neglect, or misappropriation of resident property by a nurse aide, who also is a permitted medication aide under Chapter 95 of this title (relating to Medication Aides --Program Requirements ), violates the sections in this chapter and Chapter 95 of this title, DADS [ DHS ] must comply with the formal hearing procedures as required in subsection (e) of this section. Determinations are made through the formal hearing on both the certificate of nurse aide practice and the permit for medication aide practice.

(g) DADS [ DHS ] will not make a finding that an individual has neglected a resident if the individual demonstrates the neglect was caused by factors beyond the individual's control.

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

(k) In the case of inquiries to the Nurse Aide Registry, DADS [ DHS ] must:

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

(l) If a nurse aide has a finding of abuse, neglect, or misappropriation and is listed as unemployable in the Employee Misconduct Registry established pursuant to Texas Health and Safety Code, Chapter 253, DADS enters that finding in the Nurse Aide Registry. The due process procedure offered to an individual before a finding is entered in the Employee Misconduct Registry satisfies the due process required for listing the individual as unemployable in the Nurse Aide Registry. DADS does not provide the nurse aide with an informal review or a formal hearing, as described in subsections (c) - (e) of this section.

§94.11.Requirements for Recertification.

(a) (No change.)

(b) A [ For a ] person who has been removed from active status on the Nurse Aide Registry must successfully complete a new CEP or a new NATCEP to be restored to active status. [ placed back on the Nurse Aide Registry as active, one of the following actions must be taken: ]

[ (1) successful completion of a new CEP; or ]

[ (2) successful completion of a new NATCEP. ]

(c) DADS does not recertify a nurse aide for whom a finding of abuse, neglect, or misappropriation is listed in either the Nurse Aide Registry or the Employee Misconduct Registry established pursuant to Texas Health and Safety Code, Chapter 253.

(d) DADS does not recertify a nurse aide who has been convicted of a criminal offense listed in Texas Health and Safety Code, §250.006.

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

Filed with the Office of the Secretary of State on January 4, 2008.

TRD-200800047

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: February 17, 2008

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