PART 1. DEPARTMENT OF AGING AND DISABILITY SERVICES
CHAPTER 1. STATE MENTAL RETARDATION AUTHORITY RESPONSIBILITIES
The Health and Human Services Commission (HHSC) proposes, on behalf of the Department of Aging and Disability Services (DADS), new Subchapter I, consisting of §§1.401 - 1.405, 1.407, 1.409, and 1.411, concerning the In-Home and Family Support Mental Retardation Program in Chapter 1, State Mental Retardation Authority Responsibilities; and the repeal of existing Subchapter I, consisting of §§1.401 - 1.414, concerning the Texas Department of Mental Health and Mental Retardation (TDMHMR) In-Home and Family Support Program, in Chapter 1, State Mental Retardation Authority Responsibilities.
BACKGROUND AND PURPOSE
DADS' In-Home and Family Support-Mental Retardation (IHFS-MR) Program is authorized by Texas Health and Safety Code, Chapter 535, and provides a grant (i.e., funds) to an eligible person and his family to purchase an item that meets a need that exists solely because of the person's mental disability or co-occurring physical disability. Additionally, the item must (1) support the person to live in the person's natural home; (2) integrate the person into the community; or (3) promote the person's self-sufficiency. The Texas Legislature appropriates approximately $5 million for the program annually.
The program was originally administered through TDMHMR and applied to individuals in the mental health and mental retardation priority populations. With the division of mental health and mental retardation services between the Department of State Health Services and DADS, portions of the rule related to mental health have become obsolete.
The proposed new subchapter, and repeal of the existing subchapter, deletes mental health references, adds a one-time (lifetime) grant of up to $3600 for architectural modifications or special equipment, and eliminates detailed procedural provisions, which will be included in the program handbook.
The program's handbook is being expanded to include the detailed requirements for allowable and unallowable costs, as well as the procedural provisions eliminated in the proposed rules.
SECTION-BY-SECTION SUMMARY
Proposed new §1.401 describes the purpose of the subchapter.
Proposed new §1.402 states that the subchapter applies to a mental retardation authority (MRA) that administers the IHFS-MR Program
Proposed new §1.403 contains the definitions for the words and terms used in the subchapter.
Proposed new §1.404 describes the criteria, purpose, and limitations of the IHFS-MR Program.
Proposed new §1.405 describes the services and equipment that may be acquired with IHFS-MR Program funds.
Proposed new §1.407 describes the diagnosis, residency, financial, and need requirements a person must meet to be eligible for assistance.
Proposed new §1.409 describes how DADS determines eligibility, processes applications, and administers the IHFS-MR Program, including the waiting list, written plan, and penalties.
Proposed new §1.411 describes which MRA determinations may be appealed and how the appeal is conducted.
The repeal of §§1.401 - 1.414 allows for the adoption of new sections governing the IHFS-MR Program.
FISCAL NOTE
Gordon Taylor, DADS Chief Financial Officer, has determined that, for the first five years the proposed new sections and repeal are in effect, enforcing or administering the new sections and repeal does not have foreseeable implications relating to costs or revenues of state or local governments.
SMALL BUSINESS AND MICRO-BUSINESS IMPACT ANALYSIS
DADS has determined that the proposed new sections and repeal will not have an adverse economic effect on small businesses or micro-businesses, because the new sections do not add any new requirements for small businesses or micro-businesses. Only an MRA, which is a unit of local government, may administer the IHFS-MR Program.
PUBLIC BENEFIT AND COSTS
Gary Jessee, DADS Assistant Commissioner for Access and Intake, has determined that, for each year of the first five years the new sections and repeal are in effect, the public benefit expected as a result of enforcing the new sections and repeal is that the rules will provide more flexibility for the IHFS-MR Program, allow for the realistic use of allowable items and services, and provide clear guidance to MRAs in administering the program.
Mr. Jessee anticipates that there will not be an economic cost to persons who are required to comply with the new sections and repeal. The new sections and the repeal will not affect a local economy.
TAKINGS IMPACT ASSESSMENT
DADS has determined that this proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under Texas Government Code, §2007.043.
PUBLIC COMMENT
Questions about the content of this proposal may be directed to Marcia Shultz at (512) 438-3532 in DADS' Mental Retardation Authorities section. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-024, 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: (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 024" in the subject line.
SUBCHAPTER I. TDMHMR IN-HOME AND FAMILY SUPPORT PROGRAM
40 TAC §§1.401 - 1.414
(Editor's note: The text of the following sections proposed
for repeal will not be published. The sections may be examined in
the offices of the Department of Aging and Disability Services or
in the Texas Register office, Room 245, James Earl Rudder Building,
1019 Brazos Street, Austin, Texas.)
STATUTORY AUTHORITY
The repeal is proposed under Texas Government Code, §531.0055,
which provides that the HHSC executive commissioner shall adopt rules
for the operation and provision of services by the health and human
services agencies, including DADS; Texas Human Resources Code, §161.021,
which provides that the Aging and Disability Services Council shall
study and make recommendations to the HHSC executive commissioner
and the DADS commissioner regarding rules governing the delivery of
services to persons who are served or regulated by DADS; and Texas
Health and Safety Code, §535.002(a), which requires the adoption
of rules to implement and administer the IHFS-MR Program.
The repeal implements Texas Government Code, §531.0055, Texas
Human Resources Code, §161.021, and Texas Health and Safety Code, §535.002(a).
§1.401.Purpose.
§1.402.Application.
§1.403.Definitions.
§1.404.TDMHMR In-Home and Family Support Program--Criteria, Purpose, and Limitations.
§1.405.Allowable Costs.
§1.406.Unallowable Costs.
§1.407.Eligibility Determination.
§1.408.Applying for Assistance and Processing Applications.
§1.409.Written Plan and Disbursing Assistance.
§1.410.Administrative Implementation.
§1.411.Appeal.
§1.412.Exhibits.
§1.413.References.
§1.414.Distribution.
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 July 13, 2009.
TRD-200902865
Kenneth L. Owens
General Counsel
Department of Aging and Disability Services
Earliest possible date of adoption: August 30, 2009
For further information, please call: (512) 438-3734
40 TAC §§1.401 - 1.405, 1.407, 1.409, 1.411
The new sections are proposed under Texas Government
Code, §531.0055, which provides that the HHSC executive commissioner
shall adopt rules for the operation and provision of services by the
health and human services agencies, including DADS; Texas Human Resources
Code, §161.021, which provides that the Aging and Disability
Services Council shall study and make recommendations to the HHSC
executive commissioner and the DADS commissioner regarding rules governing
the delivery of services to persons who are served or regulated by
DADS; and Texas Health and Safety Code, §535.002(a), which requires
the adoption of rules to implement and administer the IHFS-MR Program.
The new sections implement Texas Government Code, §531.0055,
Texas Human Resources Code, §161.021, and Texas Health and Safety
Code, §535.002(a).
§1.401.Purpose.
The purpose of this subchapter is to describe the requirements
for administering the IHFS-MR Program, pursuant to Chapter 535, Texas
Health and Safety Code.
§1.402.Application.
This subchapter applies to an MRA that administers the IHFS-MR
Program.
§1.403.Definitions.
The following words and terms, when used in this subchapter,
have the following meanings, unless the context clearly indicates
otherwise:
(1) Assistance--A subsidy granted under the IHFS-MR
Program to a person or family to spend on an item that meets the criteria
described in §1.404(a) of this subchapter (relating to In-Home
and Family Support-Mental Retardation Program--Criteria, Purpose,
and Limitations).
(2) Co-payment percentage--The percentage of the cost
of an item for which a recipient must pay.
(3) DADS--The Department of Aging and Disability Services.
(4) Date of eligibility--The documented date that an
MRA determines a person is eligible for assistance in accordance with §1.407
of this subchapter (relating to Eligibility Determination).
(5) Day--A calendar day.
(6) Developmental delay--In accordance with §108.23(9)
of this title (relating to Definitions), a significant variation in
normal development in one or more of the following areas, as measured
and determined by appropriate diagnostic instruments or procedures
administered by an interdisciplinary team and by informed clinical
opinion:
(A) cognitive development;
(B) physical development, including vision and hearing,
gross and fine motor skills, and nutrition status;
(C) communication development;
(D) social and emotional development; and
(E) adaptive development.
(7) Emergency--A documented:
(A) situation that places the health and safety of a person at risk;
(B) impending out-of-home placement of a person; or
(C) other crisis situation, as determined by an MRA
(e.g., natural disaster, house fire).
(8) Family--A group that consists of a person with
a mental disability and that person's parent, sibling, spouse, child,
legal guardian and others who live with the person in the person's
natural home.
(9) IHFS-MR Program--The DADS In-Home and Family Support-Mental
Retardation Program.
(10) Legal guardian--An individual appointed by a court
of competent jurisdiction to be guardian of the person in accordance
with the Texas Probate Code, Chapter XIII.
(11) Mental disability--Mental retardation, pervasive
developmental disorder, or developmental delay.
(12) Mental retardation--Pursuant to the Texas Health
and Safety Code, §591.003, significantly sub-average general
intellectual functioning existing concurrently with deficits in adaptive
behavior and originating during the developmental period.
(13) MRA--Mental retardation authority. An entity designated
by the executive commissioner of the Health and Human Services Commission
in accordance with the Texas Health and Safety Code, §533.035(a).
(14) Natural home--The place a person lives or intends
to live in the community, either independently (with or without roommates)
or with his or her family, in which a natural support system, such
as family, friends, and services available to the general population,
is available to the person.
(15) Other support program--Any form of local, state,
or federal support or service, or any support or service provided
with public or private funds to people with mental or physical disabilities
or their families, other than assistance provided through the IHFS-MR Program.
(16) Parent--A natural, foster, surrogate, or adoptive parent.
(17) Person--As appropriate to the context in which
the term is used, an individual with a mental disability:
(A) who lives independently and who intends to apply
or who has applied for assistance; or
(B) whose family intends to apply for or has applied for assistance.
(18) Pervasive developmental disorder--A disorder beginning
in childhood, including autism, that meets the criteria for pervasive
developmental disorder established in the most recent edition of the
Diagnostic and Statistical Manual (DSM).
(19) Physical disability--A physical impairment that:
(A) is likely to continue indefinitely;
(B) results in substantial functional limitations in
one or more of the following areas of major life activity:
(i) self-care;
(ii) receptive and expressive language;
(iii) learning;
(iv) mobility;
(v) self-direction;
(vi) capacity for independent living; and
(vii) economic self-sufficiency; and
(C) reflects the need for care, treatment, services
or supports, which are of lifelong or extended duration and which
are individually planned and coordinated.
(20) Recipient--A person or family who is receiving assistance.
(21) Third-party resource--Funding available to a person
or family (e.g., public or private insurance, foster care reimbursements,
trust, court settlement) that is not from any other support program.
§1.404.In-Home and Family Support-Mental Retardation Program--Criteria, Purpose, and Limitations.
(a) The IHFS-MR Program, developed pursuant to the
Texas Health and Safety Code, Chapter 535, provides assistance to
an eligible person or family to spend on an item that meets the criteria
in this subsection.
(1) The item must meet a need that exists solely because
of the person's mental disability or co-occurring physical disability
and the item must:
(A) directly support the person to live in his or her natural home;
(B) integrate the person into the community; or
(C) promote the person's self-sufficiency.
(2) The item must not be paid for in full or reimbursed
in full by a third-party resource.
(b) The IHFS-MR Program provides assistance to eligible
persons and families in accordance with this subchapter and to the
extent funds are available.
(c) The IHFS-MR Program does not provide assistance
solely to improve the living conditions of eligible persons or families
living at or below the poverty level. Assistance is neither an entitlement
nor an income supplement.
(d) The IHFS-MR Program is a program of last resort;
therefore, assistance may not be used to replace items available to
an eligible person or family through any other support program or
third-party resource.
(e) Assistance may be used to augment items provided
through any other support program or paid for or reimbursed by a third-party
resource except assistance may not be used to augment items that are
available to a person through the Texas Home Living Program or Medically
Dependent Children Program. For an eligible person enrolled in the
Texas Home Living Program or Medically Dependent Children Program,
assistance may be used to acquire an item only if the item meets the
criteria described in subsection (a) of this section and it is not
in the program's array of services and supports.
(f) Assistance may be used to assist eligible persons
and families who are waiting for an item to be provided through any
other support program.
§1.405.Provision of Assistance.
Assistance may be used to pay for an item described in this
section if the item meets the criteria described in §1.404(a)
of this subchapter (relating to In-Home and Family Support-Mental
Retardation Program--Criteria, Purpose, and Limitations):
(1) the purchase or lease of special equipment or architectural
modifications of a home to improve or facilitate the care, treatment,
therapy, or access of the person;
(2) medical, surgical, therapeutic, diagnostic, and
other health services related to the person's mental disability or
co-occurring physical disability;
(3) counseling or training programs that assist a family
in providing proper care for the person or assist the person who lives
independently, and that provide for the special needs of the person or family;
(4) attendant care, home health aid services, homemaker
services, and chore services that provide support with training, routine
body functions, dressing, preparation and consumption of food, and ambulation;
(5) respite support for a family;
(6) transportation services for a person;
(7) transportation, room, and board costs incurred
by a person or family during evaluation or treatment of the person
if such costs are pre-approved by the MRA; and
(8) any other item agreed to by the person or family
and by the MRA.
§1.407.Eligibility Determination.
(a) A person is eligible for assistance if the MRA
determines that the requirements of the diagnosis, residency, financial,
and need factors as described in this subsection are met. The MRA
must re-determine a person's eligibility each fiscal year that the
person or family receives assistance.
(1) Diagnosis factor. A person must:
(A) have a diagnosis of mental retardation;
(B) have a diagnosis of pervasive developmental disorder; or
(C) be younger than four years of age and:
(i) have a diagnosis of a developmental delay that
is documented within the previous 12 months; or
(ii) determined to be eligible for early childhood
intervention services.
(2) Residency factor.
(A) A person must be living in his or her natural home
in the MRA's local service area or the person must be leaving an institutional
setting and moving into his or her natural home in the MRA's local
service area.
(B) The person's natural home may not be:
(i) an establishment, including a foster care setting,
that furnishes room, board, and general supervision in which four
or more individuals who are unrelated to the proprietor of the establishment reside;
(ii) a residential facility certified or licensed to
provide services that include, but are not limited to, 24-hour supervision,
meals, transportation, and social and recreational activities (e.g.,
Intermediate Care Facility for Persons with Mental Retardation (ICF/MR),
state mental retardation facility, nursing facility);
(iii) an inpatient facility (e.g., state mental health
facility, general or psychiatric hospital); or
(iv) an assisted living facility.
(3) Financial factor.
(A) The financial factor is based on the current gross income of:
(i) the person who is 18 years of age or older and
the person's spouse, if any; or
(ii) the parents of a person who is under 18 years of age.
(B) A person or family applying for assistance meets
the requirements of the financial factor if the current gross income
is less than 150% of the current Texas median income level, as determined
by appropriate documentation (e.g., previous year's federal income
tax return, current pay stubs).
(C) A person or family whose income is at or below
the median income level for the family size has no co-payment. A person
who receives Supplemental Security Income (SSI) has no co-payment.
A person or family whose income is at or greater than 105% of the
median income level is assessed a co-payment. The co-payment percentage
begins at 10% of the cost of the item and increases in 10% increments
until 100% of the cost of item is reached, at which point the income
is 150% of the median income level and the person or family is not eligible.
(4) Need factor.
(A) The person or family may not be receiving funds
through the other In-Home and Family Support Program that serves persons
with a physical disability pursuant to the Texas Human Resources Code,
Chapter 35, and the person may not be enrolled in a Medicaid waiver
program except the Texas Home Living Program or Medically Dependent
Children Program.
(B) The person or family must have a need that can be met with an item:
(i) that is listed in §1.405 of this subchapter
(relating to Provision of Assistance);
(ii) that meets the criteria described in §1.404(a)
of this subchapter (relating to In-Home and Family Support-Mental
Retardation Program--Criteria, Purpose, and Limitations); and
(iii) that is not currently available from any other support program.
(b) The MRA staff may provide assistance to a person
or family in an emergency (as defined) without first determining if
the person meets every eligibility factor. Assistance provided in
an emergency is limited to the extent necessary to resolve that emergency.
§1.409.Administrative Implementation.
(a) Applying for assistance. A family, or a person
with a mental disability who lives independently, may apply for assistance.
(b) Determining eligibility. Within 30 days after a
person or family applies for assistance, the MRA must determine if
the person is eligible for assistance in accordance with §1.407
of this subchapter (relating to Eligibility Determination). The person
or family must provide all necessary information for the MRA to determine
eligibility in a timely manner.
(c) Waiting list. If IHFS-MR Program funds are not
available on a person's date of eligibility, then the person's name
is placed on a waiting list in chronological order according to a
person's date of eligibility as defined in §1.403(4) of this
subchapter (relating to Definitions). If more than one person has
the same date of eligibility, then chronological order is further
based on the date of application.
(d) Written plan. When IHFS-MR Program funds are available,
the MRA staff must identify the person or family with the earliest
date of eligibility and ensure a written plan is developed and approved
for the person or family. A written plan covers the fiscal year in
which it is developed. The written plan describes how assistance will
be used and the responsibilities of the recipient and the MRA.
(e) Disbursement of assistance. After approving the
written plan, the MRA must disburse assistance in accordance with
the written plan. The amount of assistance is based on the cost of
the item minus the required co-payment amount, but not to exceed the
maximum amount of assistance for the program as determined by DADS.
The eligible person may qualify for one or both of the following categories
of assistance:
(1) a fiscal-year amount for items approved in the written plan; and
(2) a one-time grant for architectural modifications
and the purchase or lease of special equipment in the approved written plan.
(f) Follow-up evaluation. The MRA must conduct a follow-up
evaluation after completion of the written plan to determine if the
recipient's stated goal and outcome have been achieved and if an additional
need has been identified by the recipient.
(g) Change in a recipient's eligibility factor. A recipient
must notify the MRA within 10 days after an eligibility factor changes
(i.e., diagnosis, residency, financial, or need), as described in §1.407(a)
of this subchapter. If notified that an eligibility factor has changed,
the MRA must determine, within 30 days after notification, if the
recipient continues to be eligible for assistance in accordance with §1.407
of this subchapter. If the MRA determines that the recipient is not
eligible for assistance, then the MRA must terminate assistance. A
recipient whose assistance has been terminated in accordance with
this subsection is entitled to appeal the determination of ineligibility
in accordance with §1.411 of this subchapter (relating to Appeal).
(h) Penalty.
(1) The MRA may impose one or more of the following
penalties on a recipient if the recipient does not comply with his
or her written plan:
(A) immediate termination of assistance;
(B) restitution of assistance received; and
(C) ineligibility for further assistance.
(2) A recipient who has been penalized in accordance
with paragraph (1) of this subsection is entitled to appeal the determination
to impose a penalty in accordance with §1.411 of this subchapter.
§1.411.Appeal.
(a) Determinations subject to appeal. Only the following
MRA determinations may be appealed:
(1) the determination to deny assistance for a specific
item that is permitted under §1.405 of this subchapter (relating
to Provision of Assistance);
(2) the determination that a person is not eligible
for assistance under §1.407 of this subchapter (relating to Eligibility
Determination);
(3) the determination that a recipient is no longer
eligible for assistance under §1.409(g) of this subchapter (relating
to Administrative Implementation); and
(4) the determination to impose a penalty under §1.409(h)
of this subchapter.
(b) Written notification. Within 14 days after making
a determination described in subsection (a) of this section, the MRA
must provide written notification to the person or family that includes:
(1) the MRA's determination and the reason for the determination;
(2) a statement that the person or family may appeal the determination;
(3) the procedures for requesting an appeal, including
the required information;
(4) a statement that the request for appeal must be
received within 30 days after receipt of the written notification; and
(5) a description of the appeal and review process.
(c) Appeal and review process.
(1) The appeal is conducted in accordance with §2.46(g)
of this title (relating to Notification and Appeals Process) and includes
a review of this subchapter and policies governing the IHFS-MR Program.
The MRA must notify the appellant in writing of the appeal decision
in accordance with §2.46(h) of this title.
(2) The MRA must take action consistent with the appeal decision.
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 July 13, 2009.
TRD-200902864
Kenneth L. Owens
General Counsel
Department of Aging and Disability Services
Earliest possible date of adoption: August 30, 2009
For further information, please call: (512) 438-3734
SUBCHAPTER C. STANDARDS FOR LICENSURE
SUBCHAPTER I. IN-HOME AND FAMILY SUPPORT MENTAL RETARDATION PROGRAM
CHAPTER 90. INTERMEDIATE CARE FACILITIES FOR PERSONS WITH MENTAL RETARDATION OR RELATED CONDITIONS