Proposed Rules Title 40

TITLE 40. SOCIAL SERVICES AND ASSISTANCE

PART 2. DEPARTMENT OF ASSISTIVE AND REHABILITATIVE SERVICES

CHAPTER 105. GENERAL CONTRACTING RULES

The Texas Health and Human Services Commission (HHSC), on behalf of the Texas Department of Assistive and Rehabilitative Services (DARS), proposes amendments and a new rule to the DARS rules in Title 40, Part 2, Chapter 105, General Contracting Rules. This proposal amends Subchapter A, General Contracting Information, §105.1003, Definitions, Subchapter B, Contractor Requirements, §105.1013, General Requirements for Contracting, and adds new §105.1019, Contract Assignment.

DARS is proposing to amend §105.1003 and §105.1013 and add new §105.1019, to establish procedures for contract assignment.

Bill Wheeler, Chief Financial Officer, Texas Department of Assistive and Rehabilitative Services, estimates that for each year of the first five years that the proposed rules will be in effect, there will be no foreseeable fiscal implications for state or local government as a result of enforcing or administering the rules.

Mr. Wheeler has determined that for each year of the first five years the proposed rules will be in effect, the public benefit anticipated as a result of enforcing the rules will be establishment of a process for contractors to assign their contract.

Mr. Wheeler has also determined that there will be no probable economic cost to persons who are required to comply with the proposed rules. Further, in accordance with Texas Government Code §2001.022, he has determined that the proposed rules will not affect a local economy, and, therefore, no local employment impact statement is required. Finally, Mr. Wheeler has determined that the proposed rules will have no adverse economic effect on small businesses or micro-businesses, as result of enforcing or administering the rules.

Written comments on the proposed rules may be submitted within 30 days of publication of this proposal in the Texas Register to Nancy Mikulencak, Rules Coordinator, Texas Department of Assistive and Rehabilitative Services, 4800 North Lamar Boulevard, Suite 200, Austin, Texas 78756 or electronically to Nancy.Mikulencak@dars.state.tx.us.

SUBCHAPTER A. GENERAL CONTRACTING INFORMATION

40 TAC §105.1003

The amendment is proposed pursuant to HHSC's statutory rulemaking authority under Texas Government Code §531.033 and §2155.144, which grant HHSC the authority to promulgate rules for the acquisition of goods and services, and Texas Government Code §531.0055(e), which provides the Executive Commissioner of the Texas Health and Human Services Commission with the authority to promulgate rules for the operation and provision of health and human services by health and human services agencies.

No other statute, article, or code is affected by this proposal.

§105.1003.Definitions.

The following words and terms, when used in this chapter and Chapter 101 of this title (relating to Administrative Rules and Procedures), shall have the following meanings, unless the context clearly indicates otherwise.

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

(6) Contract Assignment--The transfer of contractual rights held by one party to another party.

(7) [~~(6)~~] Contractor--An entity or person holding a written agreement with a purchasing entity to provide goods and services; or a recipient or sub-recipient holding a written agreement with a grantor or sub-recipient to carry out all or part of a program.

(8) [~~(7)~~] Contract-related records--All financial and programmatic records, supporting documents, papers, statistical data, or any other written or electronic materials that are pertinent to each specific contract instrument.

(9) [~~(8)~~] Corrective Action Plan--Specific steps to be taken by a contractor to resolve identified deficiencies and/or to address concerns that the contracting agency has regarding the contractor's compliance with contract terms or other applicable laws, rules or regulations. The corrective action plan may also focus on improving contractor performance (as it relates to service delivery, reporting and/or financial stability).

(10) [~~(9)~~] Effective Date--The date of complete execution of the contract or the date upon which the parties agree the contract shall take effect.

(11) [~~(10)~~] Entity--An association, organization, governmental or business body, or existing body or class of persons that is chartered or organized for representing the interest of persons.

(12) [~~(11)~~] Grant--An award of financial assistance, including cooperative agreements, in the form of money, property in lieu of money, or other financial assistance paid or furnished by the state or federal government to an eligible grantee to carry out a program in accordance with rules, regulations and guidance provided by the grantor agency.

(13) [~~(12)~~] Interlocal Contract--A contract made under Government Code, Chapter 791, and involving one or more local governments.

(14) [~~(13)~~] Memorandum of Understanding (MOU)--A written document evidencing the understanding or agreement of two or more parties regarding the subject matter of the agreement. Because the underlying agreement may or may not be legally binding and enforceable in and of itself, a memorandum of understanding may or may not constitute a contract. It is generally considered a less formal way of evidencing an agreement, and is ordinarily used in state government only between or among state agencies or other government entities. The term is used interchangeably with "memorandum of agreement."

(15) [~~(14)~~] Program--DARS activities designed to deliver services or benefits provided by statute.

(16) [~~(15)~~] Subcontract--A written agreement between the original contractor and a third party to provide all or a specified part of the goods, services, work, and/or materials required in the original contract.

(17) [~~(16)~~] Vendor Hold--A suspension of payments to a contractor by the contracting state agency due to the contractor's failure to comply with the terms of the contract.

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 March 9, 2009.

TRD-200900984

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: April 19, 2009

For further information, please call: (512) 424-4050

SUBCHAPTER B. CONTRACTOR REQUIREMENTS

40 TAC §105.1013, §105.1019

The amendment and new rule are proposed pursuant to HHSC's statutory rulemaking authority under Texas Government Code §531.033 and §2155.144, which grant HHSC the authority to promulgate rules for the acquisition of goods and services, and Texas Government Code §531.0055(e), which provides the Executive Commissioner of the Texas Health and Human Services Commission with the authority to promulgate rules for the operation and provision of health and human services by health and human services agencies.

No other statute, article, or code is affected by this proposal.

§105.1013.General Requirements for Contracting.

(a) To contract with the Department of Assistive and Rehabilitative Services (DARS) the contractor must:

(1) - (13) (No change.)

(14) notify DARS in writing of changes to contract information according to the requirements of their contract. Unless otherwise specified in the contract, the contractor must notify DARS:

(A) within 10 calendar days after any address change, which includes the location of the agency's office, physical address, and/or mailing address;

(B) immediately of any change in administrator or director;

~~[(D) prior to any change in entity name or type; and]~~

(D) [~~(E)~~] within 10 calendar days of any change in legal status with the Texas Secretary of State; and

(15) report suspected violation of rules or laws to the appropriate investigative authority. This includes reporting abuse, neglect, and exploitation issues to the Texas Department of Family and Protective Services (DFPS) or to the appropriate Texas Department of Aging and Disability Services (DADS) licensing staff.

(b) - (i) (No change.)

§105.1019.Contracting Assignment.

(a) Without prior written approval from DARS, a contractor must not assign:

(1) their DARS contract, in whole or in part; or

(2) any right or duty required under the contract.

(b) A contract assignment is necessary when a different entity consents to assume ownership of a contractor's contract with DARS, including when there is a:

(1) change in contract ownership, such as the sale of the contract;

(2) change in legal status with the Texas Secretary of State (SOS), such as changing from a partnership to a corporation without filing articles of conversion with and receiving approval from SOS;

(3) change in employer identification number (EIN), unless DARS approves an exception; or

(4) transfer from one legal entity to another through a legal process, such as a sale by a bankruptcy trustee.

(1) name only that is not related to one of the events noted in subsection (b) of this section;

(2) legal status that involves filing articles of conversion with and receiving documented approval from the SOS, such as a limited partnership (LP) changing to a corporation for which articles of conversion have been filed with and are approved by SOS; or

(3) ownership, such as sale of majority ownership of stock.

(d) A contractor must notify DARS in writing at least 60 calendar days prior to the intended effective date of any change in legal entity status that would require a contract assignment.

(e) A contractor must return all required contract assignment forms and documents to DARS by the date requested by DARS.

(f) DARS may choose not to approve a contract assignment when:

(1) a contractor, proposed assignee, or a controlling party has a prior unsatisfactory history in contracting with DARS or with another Health and Human Services agency, and/or may not be able to provide acceptable service under the contract;

(2) a contractor or proposed assignee:

(A) subcontracts any services without specific authorization from DARS; or

(B) assigns or transfers the contract without prior written approval of DARS; or

(3) DARS determines it is not in the best interest of DARS.

(g) In appropriate circumstances, DARS may terminate a contract or take other adverse action if DARS does not approve a contract assignment.

(h) DARS determines the effective date of a contract assignment.

(i) DARS sends a contractor written notice of the contract assignment approval or disapproval. If DARS does not approve the contract assignment, the notice includes the action that DARS will take regarding the contract.

(j) Failure of a contractor to comply with any of the requirements in this section may result in denial of the contract assignment.

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 March 9, 2009.

TRD-200900985

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: April 19, 2009

For further information, please call: (512) 424-4050

CHAPTER 106. DIVISION FOR BLIND SERVICES

The Texas Health and Human Services Commission (HHSC), on behalf of the Texas Department of Assistive and Rehabilitative Services (DARS), proposes to amend and repeal the DARS rules in Title 40, Part 2, Chapter 106, Division for Blind Services. This proposal amends Subchapter C, Vocational Rehabilitation Program, Division 3, Vocational Rehabilitation Services, §106.557, and Subchapter I, Blind Children's Vocational Discovery and Development Program, Division 1, General Information, §106.1403 and §106.1407, and Division 5, Order of Selection for Payment of Services, §106.1489. This proposal also repeals Subchapter I, Division 1, §106.1405, Remedy of Dissatisfaction.

The purpose of the amendments and repeal is to clarify program language and to remove incorrect and obsolete language and rules.

Specifically, this proposal amends Subchapter C, Vocational Rehabilitation Program, Division 3, Vocational Rehabilitation Services, §106.557, by clarifying language concerning academic training; and Subchapter I, Blind Children's Vocational Discovery and Development Program, Division 1, General Information, §106.1403, by removing the internal reference to a repealed rule; §106.1407, by adding the definition for "deafblind"; and Division 5, Order of Selection for Payment of Services, §106.1489, by clarifying the order of selection for deafblind consumers and removing priorities for services that are no longer funded. In Subchapter C, Vocational Rehabilitation Program, Division 3, Vocational Rehabilitation Services, §106.557, subsection (b)(11) is being deleted, as it is now obsolete. This proposal also repeals Subchapter I, Division 1, §106.1405, Remedy of Dissatisfaction, which is now obsolete.

The proposed rule changes are authorized by the Rehabilitation Act of 1973, Section 701 et seq. (as hereafter amended), the Randolph-Sheppard Act, Texas Government Code, §2001.01 et seq., and the Texas Human Resources Code, Chapters 22, 35, and 91 (as hereafter amended).

Bill Wheeler, Chief Financial Officer, Texas Department of Assistive and Rehabilitative Services, estimates that for each year of the first five years that the proposed rules will be in effect, there will be no foreseeable fiscal implications for state or local government costs or revenues as a result of enforcing or administering the rules.

Mr. Wheeler has determined that for each year of the first five years that the proposed rules will be in effect, the public benefit anticipated as a result of enforcing the proposed rules will be a more consistent delivery of the agency's vocational rehabilitation program and blind children's program services in accordance with federal regulations.

Mr. Wheeler has also determined there will be no probable economic cost to persons who are required to comply with the proposed rules. Further, in accordance with Texas Government Code, §2001.022, he has determined that the proposed amendment will not affect a local economy, and, therefore, no local employment impact statement is required. Finally, Mr. Wheeler has determined that the proposed rules will have no adverse economic effect on small businesses or micro-businesses.

Written comments on the proposed rules may be submitted within 30 days of publication of this proposal in the Texas Register to Nancy Mikulencak, Rules Coordinator, Texas Department of Assistive and Rehabilitative Services, 4800 North Lamar Boulevard, Suite 200, Austin, Texas, 78756 or electronically to Nancy.Mikulencak@dars.state.tx.us.

SUBCHAPTER C. VOCATIONAL REHABILITATION PROGRAM

DIVISION 3. VOCATIONAL REHABILITATION SERVICES

40 TAC §106.557

The amendment is proposed pursuant to HHSC's statutory rulemaking authority under Texas Government Code, Chapter 531, §531.055(e), which provides the Executive Commissioner of HHSC with the authority to promulgate rules for the operation and provision of health and human services by health and human services agencies.

No other statute, article, or code is affected by this proposal.

§106.557.Vocational and Other Training Services.

(a) (No change.)

(b) Academic training in institutions of higher education (universities, colleges, community or junior colleges, vocational schools, technical institutes, or hospital schools of nursing) shall be subject to the following:

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

(6) If the consumer chooses to obtain academic training at a private university or out of Texas and the provisions in paragraph (5) of this subsection do not apply, academic support shall be limited to that which the person would receive if they attended a state-supported college or university in Texas.

(7) - (10) (No change.)

[(11) If a consumer is blind and is attending a non-tax-supported college or university, tuition and fees may be paid by the Division regardless of economic need of the consumer. However, the Division shall not pay tuition and fees in excess of the college or university's published rate for training. If the college or university does not have a published rate, tuition and fees shall be paid at rates in accordance with a written agreement between the college or university and the Division.]

(11) [~~(12)~~] Once admitted to academic training:

(A) A consumer must maintain and complete a full-time course load as defined by the college or university. This requirement may be waived if:

(i) the person is a graduating senior;

(ii) the person is an incoming freshman (first two semesters or quarters);

(iii) the person is a returning adult (first academic year only);

(iv) the person is in summer school; or

(v) other extenuating circumstances prevent the consumer from participating in a full-time course load.

(B) The consumer shall meet with the counselor at least once each semester, shall submit add or drop slips as changes occur, and shall provide grade slips or transcripts to the counselor at the end of each semester.

his 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 March 9, 2009.

TRD-200900986

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: April 19, 2009

For further information, please call: (512) 424-4050

SUBCHAPTER I. BLIND CHILDREN'S VOCATIONAL DISCOVERY AND DEVELOPMENT PROGRAM

DIVISION 1. GENERAL INFORMATION

40 TAC §106.1403, §106.1407

The amendments are proposed pursuant to HHSC's statutory rulemaking authority under Texas Government Code, Chapter 531, §531.055(e), which provides the Executive Commissioner of HHSC with the authority to promulgate rules for the operation and provision of health and human services by health and human services agencies.

No other statute, article, or code is affected by this proposal.

§106.1403.Public Access to Information, Forms and Documents.

Requests for access to or copies of information maintained by the Division in the administration of this chapter are handled according to §106.1411 of this chapter pertaining to confidentiality of records[~~, and §101.3681, et seq. of this title pertaining to requests for public information~~].

§106.1407.Definitions.

The following words and terms, when used in this chapter, shall have the following meanings unless the context clearly indicates otherwise. The use of the singular or plural case is not meant to be limiting unless the context clearly indicates otherwise.

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

(6) Deafblind--A combined loss of vision and hearing that significantly affects access to communication, learning, socialization, activities of daily living and mobility.

(7) [~~(6)~~] Developmental services--Services that increase the capabilities and functional abilities of a child in a noneducational setting.

(8) [~~(7)~~] Educational support services--Services that assist a child in gaining the maximum benefit from educational services provided by others.

(9) [~~(8)~~] Federal poverty level--The amount of income, depending on family size, that the United States Division of Health and Human Services determines to be the level of income below which a family is classified as being in poverty.

(10) [~~(9)~~] Habilitation services--Services that develop a severely visually impaired child's skills for independent living and potential employment.

(11) [~~(10)~~] Nonsevere visual loss--A visual acuity such that one eye meets the definition of blind or severe visual loss and the acuity in the other eye with best correction is better than 20/70, or a visual acuity in both eyes with best correction of better than 20/70.

(12) [~~(11)~~] Parent--The child's natural or adoptive parent; or the spouse of the child's natural or adoptive parent; or the child's guardian, surrogate parent; or the spouse of the guardian or surrogate parent; or a person or spouse of the person who is acting as the child's parent.

(13) [~~(12)~~] Referral--A child who has been referred to the BCVDD Program for services but for whom an application has not been completed.

(14) [~~(13)~~] Restoration services--Services to eliminate or reduce limitations imposed by a visual impairment on the functioning of a child and cosmetic services necessary to improve the physical appearance of the child's eyes when the eyes are abnormal to the extent that they negatively impact the child's social and emotional well-being.

(15) [~~(14)~~] Severe visual loss--A loss of vision such that the best corrected visual acuity is between 20/70 and 20/200 in the better eye; or a visual loss such that the visual field is 30 degrees or less but greater than 20 degrees with best correction.

(16) [~~(15)~~] Severely visually impaired child--A child with a visual impairment that has resulted in a permanent condition of blindness or severe visual loss; or a child who has been certified as blind or severely visually impaired by a local education agency; or a child who has been determined to be functioning as a person who is blind or who has a severe visual loss.

(17) [~~(16)~~] Technology services--Services to provide a child access to an item, piece of equipment, or product system that maintains or improves the child's communication, independent living, social, or prevocational skills.

(18) [~~(17)~~] Visual impairment--An injury, disease, or other disorder that reduces, or if not treated will probably result in reducing, visual functioning; or a visual condition requiring cosmetic treatment, psychological assistance, counseling, or other assistance that the Division can render.

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 March 9, 2009.

TRD-200900987

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: April 19, 2009

For further information, please call: (512) 424-4050

40 TAC §106.1405

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

The repeal is proposed pursuant to HHSC's statutory rulemaking authority under Texas Government Code, Chapter 531, §531.055(e), which provides the Executive Commissioner of HHSC with the authority to promulgate rules for the operation and provision of health and human services by health and human services agencies.

No other statute, article, or code is affected by this proposal.

§106.1405.Remedy of Dissatisfaction.

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 March 9, 2009.

TRD-200900988

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: April 19, 2009

For further information, please call: (512) 424-4050

DIVISION 5. ORDER OF SELECTION FOR PAYMENT OF SERVICES

40 TAC §106.1489

No other statute, article, or code is affected by this proposal.

§106.1489.Order of Selection Expenditure Categories.

Order of Selection expenditure categories, from most restrictive to least restrictive, are:

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

(3) Category C--Expenditure of case service funds authorized for any planned, necessary BCVDD Program services according to the following priorities:

(A) Priority 1--Children who meet the definition of being blind or deafblind.

(B) - (E) (No change.)

~~[(F) Priority 6--Children who need prosthesis.]~~

~~[(G) Priority 7--Children with nonsevere visual losses that affect visual acuity who are in need of services other than correction of a refractive error.]~~

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 March 9, 2009.

TRD-200900989

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: April 19, 2009

For further information, please call: (512) 424-4050

CHAPTER 108. DIVISION FOR EARLY CHILDHOOD INTERVENTION SERVICES

The Texas Health and Human Services Commission (HHSC), on behalf of the Texas Department of Assistive and Rehabilitative Services (DARS), proposes to amend the DARS rules in Title 40, Part 2, Chapter 108, Division for Early Childhood Intervention Services, by repealing all subchapters (A, B, D, E, and F), and adopting new subchapters: Subchapter A, Early Childhood Intervention Service Delivery; Subchapter B, Procedural Safeguards And Due Process Procedures; Subchapter C, Early Childhood Intervention Staff Qualifications; Subchapter D, General Provisions for Case Management Services for Infants and Toddlers with Developmental Disabilities; Subchapter E, Developmental Rehabilitation Services; Subchapter F, System of Fees; and Subchapter G, Contract Requirements. Specifically, DARS proposes the repeal of §§108.21, 108.23, 108.25, 108.27, 108.29, 108.31, 108.33, 108.35, 108.37, 108.39, 108.43, 108.47. 108.48, 108.55, 108.57, 108.59, 108.61, 108.221, 108.223, 108.225, 108.227, 108.229, 108.231, 108.233, 108.235, 108.261, 108.263, 108.265, 108.291, 108.293 and 108.295. DARS proposes new §§108.1, 108.3, 108.5, 108.7, 108.9, 108.11, 108.13, 108.15, 108.17, 108.19, 108.71, 108.73, 108.75, 108.77, 108.101, 108.103, 108.105, 108.107, 108.109, 108.111, 108.113, 108.115, 108.117, 108.119, 108.121, 108.123, 108.125, 108.127, 108.129, 108.131, 108.133, 108.135, 108.137, 108.139, 108.301, 108.303, 108.305, 108.307, 108.309, 108.311, 108.313, 108.315, 108.317, 108.319, 108.321, 108.401, 108.403, 108.405, 108.407, 108.409, 108.411, 108.413, 108.415, 108.501, 108.503, 108.505, 108.601, 108.603, 108.701, 108.703, 108.705, 108.707, 108.709 and 108.711.

Chapter 108 is being extensively restructured and expanded from five subchapters to seven subchapters in order to increase clarity and minimize duplication of or conflicts with federal statutes and rules.

The following subchapters and sections in Title 40, Chapter 108, are to be repealed:

Subchapter A, Early Childhood Intervention Service Delivery, and the following sections are to be repealed: §108.21, Purpose; §108.23, Definitions; §108.25, Service Delivery Requirements for Comprehensive Services; §108.27, Program Administration for Comprehensive Services; §108.29, Application and Program Requirements for Comprehensive Services; §108.31, Financial Management and Recordkeeping Requirements; §108.33, Funding Application Submission and Review; §108.35, Contract Award; §108.37, Contract; §108.39, Contract Actions; §108.43, Waiver of Program Standards for All ECI Providers Funded by the Department of Assistive and Rehabilitative Services, Division for Early Childhood Intervention Services; §108.47, Early Intervention Specialist Code of Ethics; and §108.48, Violations of the EIS Code of Ethics. The subject matter of these rules is moved to several of the new subchapters with changes intended to minimize duplication of or conflicts with federal statutes and rules. The subject matter of §108.21 and §108.23 is in new Subchapter A. Section 108.25 is an extremely long rule, and it has been broken up into separate sections placed in appropriate new subchapters. The subject matter of §108.27 through §108.39 has been moved to new Subchapter G. Section 108.43 is not replaced in any form. The subject matter of §108.47 and §108.48 has been moved to new Subchapter C.

Subchapter B, Procedural Safeguards and Due Process Procedures, and the following sections are to be repealed: §108.55, Procedural Safeguards for Comprehensive Services; §108.57, Early Childhood Intervention Procedures for Resolving Complaints; §108.59, Confidentiality; and §108.61, Primary Referral Requirements. The subject matter of these rules may be found in new Subchapter B along with portions of other repealed rules pertaining to the same matters. The subject matter of §108.55 and §108.57 has been modified to minimize duplication of or conflicts with federal statutes and rules. The subject matter of §108.59 is broken into several new rules.

Subchapter D, General Provisions for Case Management Services for Infants and Toddlers with Developmental Disabilities, and the following sections are to be repealed: §108.221, Introduction; §108.223, Definitions; §108.225, Reimbursable Services; §108.227, Recipient Eligibility for Early Childhood Intervention (ECI) Case Management Services; §108.229, Conditions for Case Management Provider Participation; §108.231, Qualified Personnel; §108.233, Retention of Records; and §108.235, Provider Records. New Subchapter D is merely a renumbering of these sections, with minor changes to be consistent with the Medicaid State Plan.

Subchapter E, Developmental Rehabilitation Services, and the following sections are to be repealed: §108.261, Reimbursable Services; §108.263, Recipient Eligibility for Services Funded by the Developmental Rehabilitation Services Program; and §108.265, Conditions for Provider Participation in the Developmental Rehabilitation Services Program. New Subchapter E is a renumbering of these sections with an added definition of natural environment.

Subchapter F, System of Fees, and the following sections are to be repealed: §108.291, Purpose; §108.293, Definitions; and §108.295, Administration of Family Cost Share System. New Subchapter G is a renumbering of these sections with deletion of temporary information from the rules and with definitions being moved to new Subchapter A.

The following are the proposed new subchapters of Chapter 108:

New Subchapter A, Early Childhood Intervention Service Delivery, consists of the following new rules: §108.1, Purpose; §108.3, Definitions; §108.5, Service Delivery Requirements for Early Intervention Services; §108.7, Client Eligibility; §108.9, Primary Referral Requirements; §108.11, Referral and Pre-Enrollment; §108.13, Assessment and Evaluation; §108.15, Health Standards for Early Intervention Services; §108.17, Individualized Family Service Plan (IFSP); §108.19, Required Early Intervention Services; §108.71, Service Coordination; §108.73, Transition; §108.75, Public Outreach; and §108.77, Safety Regulations.

New Subchapter B, Procedural Safeguards and Due Process Procedures, consists of the following new rules: §108.101, Purpose; §108.103, Responsibilities; §108.105, Prior Notice; §108.107, Parental Consent; §108.109, Surrogate Parents; §108.111, Early Childhood Intervention Procedures for Filing Complaints; §108.113, Early Childhood Intervention Procedures for Investigation and Resolution of Complaints; §108.115, Confidentiality Notice to Parents; §108.117, Access Rights; §108.119, Fees for Records; §108.121, Amendment of Records at Parent's Request; §108.123, Opportunity for a Hearing; §108.125, Minimum Requirements for Conducting a Hearing; §108.127, Results of Hearing; §108.129, Release of Personally Identifiable Information; §108.131, Safeguards; §108.133, Record Retention Period; §108.135, Destruction of Information; §108.137, Release of Records; and §108.139, Enforcement.

New Subchapter C, Early Childhood Intervention Staff Qualifications, consists of the following new rules: §108.301, Staff Health Regulations; §108.303, Professional Requirements; §108.305, Criminal Background; §108.307, Early Intervention Specialist (EIS) Professional; §108.309, Supervision of Entry Level EIS Professionals; §108.311, Fully Qualified EIS Professional Requirements; §108.313, Continuing Professional Education Requirements; §108.315, Registry; §108.317, Grievance Process; §108.319, Early Intervention Specialist Code of Ethics; and §108.321, Violations of the EIS Code of Ethics.

New Subchapter D, General Provisions for Case Management Services for Infants And Toddlers with Developmental Disabilities, consists of the following new rules: §108.401, Introduction; §108.403, Definitions; §108.405, Reimbursable Services; §108.407, Recipient Eligibility for Early Childhood Intervention (ECI) Case Management Services; §108.409, Conditions for Case Management Provider Participation; §108.411, Qualified Personnel; §108.413, Retention of Records; and §108.415, Provider Records.

New Subchapter E, Developmental Rehabilitation Services, consists of the following new rules: §108.501, Reimbursable Services; §108.503, Recipient Eligibility for Services Funded by the Developmental Rehabilitation Services Program; and §108.505, Conditions for Provider Participation in the Developmental Rehabilitation Services Program.

New Subchapter F, System of Fees, consists of the following new rules: §108.601, Purpose, and §108.603, Administration of Family Cost Share System.

ew Subchapter G, Contract Requirements, consists of the following new rules: §108.701, Application and Program Requirements for Comprehensive Services; §108.703, Contract Award; §108.705, Contract; §108.707, Remedial Contract Actions; §108.709, Financial Management and Recordkeeping Requirements; and §108.711, Data Collection and Reporting. The proposed new Chapter 108, Subchapter G, Contract Requirements, collects portions of several repealed rules that deal with providers, their contracts, and their financial requirements.

The proposed new rules are authorized by the Texas Human Resources Code, Chapters 73 and 117; and The Individuals with Disabilities Education Act, as amended, 20 U.S.C. §1400 et seq. and its implementing regulations, 34 C.F.R. Part 303, as amended.

Bill Wheeler, Chief Financial Officer, Texas Department of Assistive and Rehabiltative Services, has determined that for each year of the first five years that the proposed rules will be in effect, there are no foreseeable fiscal implications for state or local governments as a result of enforcing or administering the rules.

Mr. Wheeler has determined that for each year of the first five years the proposed rules will be in effect, the public benefit anticipated as a result of enforcing the proposed rules will be the establishment of a process for contractors to assign their contract. Mr. Wheeler has also determined that there is no probable economic cost to persons who are required to comply with the proposed rules.

Further, in accordance with Texas Government Code, §2001.022, Mr. Wheeler has determined that the proposed new rules will not affect a local economy, and, therefore, no local employment impact statement is required. Finally, Mr. Wheeler has determined that the proposed new rules will have no adverse economic effect on small businesses or micro-businesses.

Written comments on the proposed rules may be submitted within 60 days of publication of this proposal in the Texas Register to Nancy Mikulencak, Rules Coordinator, Texas Department of Assistive and Rehabilitative Services, 4800 North Lamar Boulevard, Suite 200, Austin, Texas 78756 or electronically to Nancy.Mikulencak@dars.state.tx.us.

SUBCHAPTER A. EARLY CHILDHOOD INTERVENTION SERVICE DELIVERY

40 TAC §§108.21, 108.23, 108.25, 108.27, 108.29, 108.31, 108.33, 108.35, 108.37, 108.39, 108.43, 108.47, 108.48

(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 Assistive and Rehabilitative Services or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The repeals are proposed pursuant to HHSC's statutory rulemaking authority under Texas Government Code, Chapter 531, §531.0055(e), which provides the Executive Commissioner of the Texas Health and Human Services Commission with the authority to promulgate rules for the operation and provision of health and human services by health and human services agencies.

No other statute, article, or code is affected by this proposal.

§108.21.Purpose.

§108.23.Definitions.

§108.25.Service Delivery Requirements for Comprehensive Services.

§108.27.Program Administration for Comprehensive Services.

§108.29.Application and Program Requirements for Comprehensive Services.

§108.31.Financial Management and Recordkeeping Requirements.

§108.33.Funding Application Submission and Review.

§108.35.Contract Award.

§108.37.Contract.

§108.39.Contract Actions.

§108.43.Waiver of Program Standards for All ECI Providers Funded by the Department of Assistive and Rehabilitative Services, Division for Early Childhood Intervention Services.

§108.47.Early Intervention Specialist Code of Ethics.

§108.48.Violations of the EIS Code of Ethics.

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 March 9, 2009.

TRD-200900971

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: April 19, 2009

For further information, please call: (512) 424-4050

SUBCHAPTER B. PROCEDURAL SAFEGUARDS AND DUE PROCESS PROCEDURES

40 TAC §§108.55, 108.57, 108.59, 108.61

No other statute, article, or code is affected by this proposal.

§108.55.Procedural Safeguards for Comprehensive Services.

§108.57.Early Childhood Intervention Procedures for Resolving Complaints.

§108.59.Confidentiality.

§108.61.Primary Referral Requirements.

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 March 9, 2009.

TRD-200900972

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: April 19, 2009

For further information, please call: (512) 424-4050

SUBCHAPTER D. GENERAL PROVISIONS FOR CASE MANAGEMENT SERVICES FOR INFANTS AND TODDLERS WITH DEVELOPMENTAL DISABILITIES

40 TAC §§108.221, 108.223, 108.225, 108.227, 108.229, 108.231, 108.233, 108.235

No other statute, article, or code is affected by this proposal.

§108.221.Introduction.

§108.223.Definitions.

§108.225.Reimbursable Services.

§108.227.Recipient Eligibility for Early Childhood Intervention (ECI) Case Management Services.

§108.229.Conditions for Case Management Provider Participation.

§108.231.Qualified Personnel.

§108.233.Retention of Records.

§108.235.Provider Records.

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 March 9, 2009.

TRD-200900973

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: April 19, 2009

For further information, please call: (512) 424-4050

SUBCHAPTER E. DEVELOPMENTAL REHABILITATION SERVICES

40 TAC §§108.261, 108.263, 108.265

No other statute, article, or code is affected by this proposal.

§108.261.Reimbursable Services.

§108.263.Recipient Eligibility for Services Funded by the Developmental Rehabilitation Services Program.

§108.265.Conditions for Provider Participation in the Developmental Rehabilitation Services Program.

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

Filed with the Office of the Secretary of State on March 9, 2009.

TRD-200900974

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: April 19, 2009

For further information, please call: (512) 424-4050

SUBCHAPTER F. SYSTEM OF FEES

40 TAC §§108.291, 108.293, 108.295

No other statute, article, or code is affected by this proposal.

§108.291.Purpose.

§108.293.Definitions.

§108.295.Administration of Family Cost Share System.

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 March 9, 2009.

TRD-200900975

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: April 19, 2009

For further information, please call: (512) 424-4050

SUBCHAPTER A. EARLY CHILDHOOD INTERVENTION SERVICE DELIVERY

40 TAC §§108.1, 108.3, 108.5, 108.7, 108.9, 108.11, 108.13, 108.15, 108.17, 108.19, 108.71, 108.73, 108.75, 108.77

The new rules are proposed pursuant to HHSC's statutory rulemaking authority under Texas Government Code, Chapter 531, §531.0055(e), which provides the Executive Commissioner of the Texas Health and Human Services Commission with the authority to promulgate rules for the operation and provision of health and human services by health and human services agencies.

No other statute, article, or code is affected by this proposal.

§108.1.Purpose.

This chapter is intended to implement the provisions of the Interagency Council on Early Childhood Intervention Act, Human Resources Code, Chapter 73, the Individuals with Disabilities Education Act, Part C (20 U.S.C. §§1431-1444), and the implementing federal regulations at 34 CFR Chapter 303. This chapter shall be interpreted to be consistent with these statutes and rules to the extent possible. If such an interpretation is not possible for a portion of these rules, the federal statutes and rules shall prevail. The Texas statutes and these rules shall then be given effect to the extent possible.

§108.3.Definitions.

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

(1) Ability to Pay--The determination that the family is financially able to contribute to the cost of services provided by ECI based on the family's placement on the sliding fee scale. Placement on the scale at an amount greater than $0 indicates an ability to pay.

(2) Adjusted Income--Gross family income, minus allowable expenses. Adjusted income is used at the parent's request, instead of gross income to determine a family's ability to pay and cost share.

(3) Allowable Expenses--Unreimbursed out-of-pocket expenses, including medical and dental expenses, that can be deducted from gross income, at the request of a parent, to calculate adjusted income for the purpose of determining a family's ability to pay and cost share.

(4) Child Find--Activities and strategies designed to locate and identify, as early as possible, infants and toddlers with developmental delay.

(5) CHIP--The Children's Health Insurance Program.

(6) Complaint--A formal written allegation submitted to the Department stating that a requirement of the Individuals with Disabilities Education Act, or an applicable federal or state regulation has been violated.

(7) Consent--In addition to the meaning defined at 34 CFR §303.401 and §303.404, consent shall mean the parent(s) understands:

(A) any financial responsibility or other burdens that the family will bear as a result of giving consent;

(B) any possible adverse consequences that could result from denying consent; and

(8) Contractor--A local private or public agency with proper legal status and governed by a board of directors or governing authority that accepts funds from the Department to administer the Early Childhood Intervention (ECI) Program.

(9) Days--Calendar days.

(10) Department--The entity designated as the lead agency by the governor under the Individuals with Disabilities Education Act, Part C. The Department has the final authority and responsibility for the administration, supervision, and monitoring of programs and activities under this system. The Department has the final authority for the obligation and expenditure of funds and compliance with all applicable laws and rules.

(11) Developmental Delay--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: cognitive development; physical development, including vision and hearing, gross and fine motor skills; communication development; social and emotional development; and adaptive development.

(12) Dual Relationships--Dual relationships occur when the person providing early intervention services engages in activities with the family that goes beyond his or her professional boundaries.

(13) Early Intervention Services--Individualized intervention services, as determined by the interdisciplinary team and listed in the Individualized Family Service Plan (IFSP). Services are further defined in §108.19 of this subchapter (relating to Required Early Intervention Services). Contractors receiving funds from the Department are required to have the capacity to provide or arrange for all early intervention services listed in §108.19 of this subchapter.

(14) Family--A group of individuals in the same household who identify themselves as a family. Family includes parents, adoptive parents, step-parents, children, adult dependents, and other people residing in the household who are considered members of the family. Family member information is used to determine family size and income.

(15) Family Cost Share--The maximum amount of money the family must pay per month based on the family's ability to pay, considering the family's income, family size, and, when applicable, certain other factors as described in the rules.

(16) Family Educational Rights and Privacy Act of 1974 (FERPA)--20 U.S.C. §1232g, as amended, and implementing regulations at 34 CFR Part 99 - Federal law that outlines privacy protection for parents and children enrolled in the ECI program. FERPA includes rights to confidentiality and restrictions on disclosure of personally identifiable information, and the right to inspect records.

(17) Full Year Services--The availability of an array of early intervention services throughout the calendar year.

(18) Gross Income--All income received by the family, from whatever source, which is considered to be income by the Internal Revenue Service but before federal allowable deductions are applied. A family's gross income will be used to calculate the family cost share unless the parent requests an adjustment for allowable expenses.

(19) Inability to Pay--The determination that the family is not able to financially contribute to the cost of services provided by ECI. Placement on the sliding fee scale at $0 indicates an inability to pay.

(20) Individual Professional Development Plan (IPDP)--A written plan for in-service or continuing education to be prepared annually for each staff person in a program.

(21) Interdisciplinary Team--The child's parent(s) and a minimum of two professionals from different disciplines who meet to share evaluation information, determine eligibility, assess needs, and develop the Individualized Family Service Plan (IFSP). The team must include the service coordinator who has been working with the family since the initial referral or the person responsible for implementing the IFSP and a person directly involved in conducting the evaluations and assessments.

(22) Intimate Relationships--Sexual relationships or extremely close and familiar friendships.

(23) Natural Environments--As defined in 34 CFR 303, natural environments mean settings that are natural or normal for the child's age peers who have no disabilities.

(24) Pre-Enrollment--Process that begins with telephone or face-to-face contacts with the child's family to provide information about early intervention and service coordination and to assist the child and family in gaining access to the evaluation and the assessment process. This process establishes potential eligibility for early intervention services, provides a basic introduction to the program's philosophy and operating procedures, gathers information needed for enrollment, and schedules and helps the family prepare for a comprehensive interdisciplinary evaluation and assessment. Pre-IFSP service coordination is provided as needed.

(25) Primary Referral Sources--Individuals or organizations which refer children, including but not limited to all required sources in 34 CFR §303.321.

(26) Professional Boundaries--Professional boundaries are physical and emotional limits to the relationship between the professional providing early intervention services and the family. Professional boundaries help to maintain a relationship that keeps the focus on helping the family.

(27) Program--A division of a contractor with the express and sole purpose of implementing early intervention services to children with developmental delays and their families.

(28) Public Agency--The Department and any other state agency or political subdivision of the state that is responsible for providing early intervention services to eligible children under the Individuals with Disabilities Education Act, Part C.

(29) Public Health Clinic--Any clinic that provides pediatric physical examinations and receives public funding from federal, state, city, or county governments.

(30) Referral Date--The date the child's name and sufficient information to contact the family was obtained by the local program.

(31) Service Coordinator--A staff person with an ECI contractor who is assigned to a child or family, who is the single contact point for families, and who is responsible for assisting and empowering families to receive the rights, procedural safeguards, and early intervention services authorized by these rules and Department policy and procedures. The service coordinator must be from the profession most relevant to the child's or family's needs, or who is otherwise qualified to carry out all applicable responsibilities.

(32) Sliding Scale--The scale of graduated family cost share amounts developed by DARS for use in determining the family's ability to pay and the maximum cost share a family receiving ECI services may be responsible for based on their income and family size.

(33) SSI--Supplemental Security Income (SSI) is a Federal income supplement program funded by general tax revenues.

(34) Supplanting--The withdrawal or withholding of local, private, or other public funds for services which were or are available for services to children and expenditure of federal ECI funds instead. See 34 CFR §303.124 and 34 CFR Part 81 - Appendix.

(35) Surrogate Parent--The term surrogate parent shall meet the definition and requirements of the Individuals with Disabilities Education Act, Part C.

(36) TANF--The Temporary Assistance for Needy Families (TANF) program within the Office of Family Assistance authorized under the Social Security Act.

(37) TriCare--The Department of Defense managed care program for active duty military and retirees and their families.

(38) UGMS--Uniform Grant Management Standards (UGMS) adopted by the Governor's Office of Budget and Planning pursuant to 1 TAC §§5.141 - 5.151 and §5.167 (relating to Uniform Grant Management Standards) under the authority of Texas Government Code, Chapter 783.

§108.5.Service Delivery Requirements for Early Intervention Services.

Contractors that receive Early Childhood Intervention (ECI) funds for early intervention services must implement all written policies and procedures developed by the Department that are applicable to ECI contractors.

§108.7.Client Eligibility.

(a) The contractor must follow written criteria developed by the Department for determining eligibility for infants and toddlers with disabilities and accepting them into the program.

(b) Early intervention services are available to any child birth to 36 months of age who has a documented developmental delay, or a medically diagnosed condition that has a high probability of resulting in developmental delay, or exhibits atypical development. Determination of eligibility shall be as follows:

(1) Developmental delay: specific level of delay in one or more of the following areas measured and determined by appropriate diagnostic instruments or procedures by an interdisciplinary team and by informed clinical opinion: cognitive development, physical development, communication development, social-emotional development, or adaptive development.

(2) Atypical development: determination must be completed by a qualified professional (i.e., psychologist, occupational therapist, speech therapist, physical therapist, physician, etc.) through administration of an evaluation tool, parental report, and observation of one or more atypical behaviors.

(3) Medically diagnosed condition: must be determined by medical documentation of a specific condition with known etiology and developmental consequences that is included in the list of covered medical conditions approved by the Department. Children with a medically diagnosed condition that is not included in the list of covered medical conditions approved by the Department may still be eligible for early intervention services based on the criteria in paragraphs (1) and (2) of this subsection.

(c) Early childhood intervention services are provided to eligible children in the State including Native American children residing on reservations geographically located in Texas, children who are homeless, wards of the state, and those children authorized for services as visually or auditorially impaired children as defined by the Texas Education Code.

§108.9.Primary Referral Requirements.

All primary referral sources must refer a child under age three who may be in need of and/or qualify for comprehensive early intervention services. Referrals must be within two working days of identification, and must be made to a program for evaluation and assessment of the child. Primary referral sources include:

(1) hospitals, including prenatal and postnatal care facilities;

(2) physicians;

(3) parents;

(4) child care programs;

(5) local educational agencies;

(6) public health facilities;

(7) other social service agencies; or

(8) other health care providers.

§108.11.Referral and Pre-Enrollment.

The program must have procedures for receiving and sending referrals using all primary referral sources.

§108.13.Assessment and Evaluation.

(a) The assessment and evaluation for early intervention services must be in accordance with the following criteria and procedures.

(1) Prior to any assessment or evaluation, the parent(s) must be fully informed and give permission regarding the following:

(A) disciplines or staff to be involved in conducting assessments and evaluations;

(B) family's role;

(D) when and how the information obtained will be synthesized and shared; and

(E) who will have access to the information obtained.

(2) If the parent(s) refuses participation in a specific area of an assessment or evaluation, early intervention services may not be denied in other areas.

(3) At no cost to the family, the program must provide a comprehensive, interdisciplinary assessment and evaluation for each child, including assessment activities related to the family.

(4) All assessments and evaluations of the child or family including tests and other evaluative methods and procedures must be:

(A) conducted by personnel trained to use appropriate methods and procedures;

(B) administered in the native language of the parent(s) and child or other mode of communication, unless it is clearly not feasible to do so;

(D) reviewed on an ongoing basis and updated at a frequency recommended by the interdisciplinary team and the parent(s) must be notified that an annual assessment and evaluation is available to them if they request it;

(E) based on informed clinical opinion; and

(F) based on appropriate use of multiple methods and procedures which ensure that no single criterion is utilized to determine delay or atypical development.

(b) Child assessments and evaluations must include in addition to all requirements in 34 CFR §303.322 an evaluation of the following developmental areas:

(1) vision and hearing, gross and fine motor skills, and nutrition status;

(2) self-help skills;

(3) an assessment of the child's unique strengths as well as needs in each of the developmental areas;

(4) the identification of services appropriate to meeting those needs; and

(5) parental input.

(c) Identification of the family's concerns, priorities, and resources must be voluntary. If a family agrees, the identification must:

(1) be family directed and designed to determine the concerns, priorities, and resources of the family related to enhancing the child's development; and

(2) be based on information provided by the family.

§108.15.Health Standards for Early Intervention Services.

(a) The Individualized Family Service Plan (IFSP) team will determine if the information is adequate or if the team needs any additional medical information to implement any or all of the strategies in the child's IFSP if the information in the child's records does not include documentation of a physical examination in accordance with the periodicity schedule of the American Academy of Pediatrics.

(b) The IFSP team can at any time request additional medical information and should do so as needed to assure the health and safety of the child.

(c) Children who will be participating in any ECI group activities must have immunizations appropriate to the child's age as recommended by the Texas Department of State Health Services (DSHS). If medical or religious reasons contraindicate immunization requirements, documentation to that effect must be maintained by the program, and the family must be notified that their child could be excluded from group activities if a contagious outbreak occurs.

(d) Child health standards. Contractors that receive ECI funds must have written policies and procedures which are implemented and evaluated in each of the following areas.

(1) Medication policies. If staff is involved in the administration of medication, written policies must be maintained regarding such administration.

(2) Infectious disease prevention and management.

(A) All programs must adhere to the procedures of the universal precautions as defined by the Centers for Disease Control of the United States Public Health Service.

(B) All programs must comply with the Texas Communicable Disease Prevention and Control Act, Health and Safety Code, Chapter 81.

(C) In the event of an outbreak of a contagious disease, children attending group activities must be excluded if they have not been immunized due to medical or religious contraindications.

(3) Contractors must follow all federal and state law and regulations regarding providing services and maintaining records for families and children with HIV or other communicable diseases.

§108.17.Individualized Family Service Plan (IFSP).

An Individualized Family Service Plan (IFSP) must be developed for each child eligible for early intervention services and the child's family. Early intervention services must be delivered in conformity with an IFSP.

(1) Procedures for development, review, and evaluation.

(A) The IFSP must be written within 45 days of referral and be developed jointly by the family and appropriate qualified personnel. The IFSP must be based on assessment and evaluation information and include services necessary to enhance the development of the child and the capacity of the family to meet the child's special needs. No IFSP shall be implemented without prior written consent from the parent(s). The contents and the implementation of the IFSP must be fully reviewed with the parent(s) prior to obtaining their consent.

(B) If early intervention services are delivered to a child by more than one contractor, services must be jointly coordinated.

(2) IFSP participants. An interdisciplinary team must meet to establish eligibility and develop the initial IFSP. The interdisciplinary team must include the following participants:

(A) the parent(s) of the child;

(B) other family members or care providers, when requested by the parent(s);

(D) a minimum of two professionals from different disciplines. The team must include the service coordinator who has been working with the family since the initial referral or who has been responsible for implementing the IFSP and a professional directly involved in conducting the evaluations and assessments; and

(E) as appropriate, persons who will be providing early intervention services to the child or family.

(3) Contents of the plan. Contractors that receive funds from the Department must have a written IFSP for each child developed jointly by the interdisciplinary team including the child's parent(s).

(A) The IFSP must include an integrated summary of all assessments and evaluations of the child's present levels of physical development (including gross and fine motor skills, nutrition, vision, hearing, and health status), cognitive development, communication (speech-language) development, social-emotional development, and self-help skills or adaptive development. This integrated summary must be based on professionally acceptable criteria.

(B) A description of the child's strengths and needs must be included in the IFSP.

§108.19.Required Early Intervention Services.

(a) The Individualized Family Service Plan (IFSP) shall include all early intervention services, as determined by the interdisciplinary team necessary to enhance the child's development or the family's capacity to meet the developmental needs of the child. These services must be provided under public supervision. With parental consent, the IFSP must also address the resources, priorities, and concerns of the family related to enhancing the child's development.

(b) The IFSP shall include a statement of the specific early intervention services necessary to meet the unique needs of the child and the family to achieve the outcomes expected to be achieved for the child and family. The array of available early intervention services must include, but is not limited to, the following:

(1) service coordination;

(2) early identification, screening, and assessment services, and the other early intervention services;

(3) medical services only for diagnostic or evaluation purposes;

(4) developmental services;

(5) family education;

(6) speech and language therapy;

(7) audiology;

(8) occupational therapy;

(9) assistive technology devices and assistive technology services;

(10) physical therapy;

(11) psychological services;

(12) family counseling;

(13) social work services;

(14) health services necessary to enable the child to benefit from the other early intervention services;

(15) nursing services;

(16) transportation;

(17) nutrition services;

(18) vision services; and

(19) other services.

(c) Required services. Each comprehensive program must provide an evaluation and assessment, service coordination, an Individualized Family Service Plan (IFSP), and early intervention services. Each contractor funded by the Department for early intervention services and follow along must have the capacity to provide or arrange for all services described in subsection (b) of this section. All services which the child or family receives, regardless of the funding sources, must be considered toward meeting the service needs of the child as defined in the child's IFSP. No ECI funding can be used to arrange, provide, or duplicate a service for which other funding sources, public or private, are available and could be used.

(d) ECI child service standards in group settings.

(1) Determination of staff-child ratios must take into account the degree of each child's developmental level of functioning, the setting in which the child will be served, and the nature of the early intervention services to be provided.

(2) Contractors which provide child care as defined by the Texas Department of Family and Protective Services (DFPS) must meet licensing standards of DFPS.

(e) Types of services. For the purpose of this chapter, in addition to all required services in 34 CFR §303.13, the following types of services apply.

(1) Developmental services include:

(A) the design of learning environments and activities that promote the child's acquisition of skills in a variety of developmental areas, including cognitive processes and social interaction;

(B) curriculum planning, including the planned interaction of personnel, materials, and time and space, that leads to achieving the outcomes in the child's IFSP;

(C) providing families with information, skills, and support related to enhancing the skill development of the child; and

(D) working with the child to enhance the child's development.

(2) Service options. Each program must provide options for instruction or intervention, based upon consideration of the medical, social, educational, and developmental needs of the child and the resources, priorities, and concerns of the family as stated in the IFSP. These options include:

(A) individual services in the home, community or other locations;

(B) group services delivered at a site with other children;

(C) to the maximum extent appropriate to the needs of the child, early intervention services must be provided in natural environments, including home and community settings in which children without disabilities participate. Natural environments mean settings that are natural or normal for the child's age peers who have no disabilities;

(D) flexible hours in programming which allow options for parents to participate (i.e., working parents);

(E) variable degrees of family involvement in services, as determined by the family.

(3) Availability of services. The contractor must demonstrate the capacity to provide services for a minimum of 52 weeks of each year.

§108.71.Service Coordination.

(a) Service coordination includes activities carried out by a service coordinator to an eligible child and the child's family to assist and empower the family to receive the provisions, procedural safeguards, and services authorized to be provided by this chapter. Activities include but are not limited to:

(1) coordinating the performance of evaluations and assessments;

(2) facilitating and participating in the development, review, and evaluation of the IFSP;

(3) assisting families in identifying available services;

(4) coordinating and monitoring the delivery of available services;

(5) informing families of the availability of advocacy services;

(6) coordinating with medical and health providers; and

(7) facilitating the development of a transition plan to preschool services, if appropriate.

(b) Service coordination services means assistance and services provided by a service coordinator to an eligible child and the child's family that are in addition to the functions and activities of this section and enable the child and the child's family to receive the rights, procedural safeguards, and services provided under this chapter.

(1) An initial service coordinator must be assigned at the time of referral. A new service coordinator may be assigned at the time the IFSP is developed or the original service coordinator may be retained, if appropriate. The parents must be given the name and contact information of their assigned service coordinator.

(2) The service coordinator assigned by the interdisciplinary team must be from the profession most relevant to the child's or family's needs, or who is otherwise qualified to carry out all applicable responsibilities.

(3) The service coordinator assigned may not be the parent. In some instances a staff person may share service coordination responsibilities with a parent.

(4) A new service coordinator must be appointed upon request by the parent(s).

(5) The service coordinator is responsible for coordinating all services within the program and between agencies including:

(A) coordinating the performance of evaluations and assessments;

(B) facilitating and participating in development, review, and evaluation of the IFSP and assisting parents of eligible children in gaining access to the early intervention services and other services identified in the IFSP;

(D) facilitating the development of a transition plan to other services, including but not limited to preschool services when a child leaves the program;

(E) continually seeking appropriate services and situations necessary to benefit the development of each child being served for the duration of the child's eligibility; and

(F) coordinating the provision of early intervention services and other services (such as medical services for other than diagnostic and evaluation purposes) that the child needs or is being provided.

(6) The service coordinator must serve as the single contact point for parents to help the families with services including:

(A) addressing identified needs and ongoing service requests;

(B) identifying resources and helping parents to choose among and to access these resources;

(D) informing families of complaint procedures.

(7) The contractor must ensure that all persons functioning as service coordinators are knowledgeable:

(A) about infants and toddlers who are developmentally delayed or at risk of delay;

(B) of the Individuals with Disabilities Education Act, Part C; and

(C) about the nature and scope of services available under the Early Childhood Intervention Program on the state and local levels, including eligibility.

§108.73.Transition.

The Individualized Family Service Plan (IFSP) must include the steps to be taken to support the transition of the child to public school preschool services (the Individuals with Disabilities Education Act, Part B), upon reaching the age of three, or to other services that may be available, if appropriate. The steps required include:

(1) discussions with, and training of, the parent(s) regarding future placements and other matters related to the child's transition;

(2) procedures to prepare the child for changes in service delivery, including steps to help the child adjust to, and function in, a new setting;

(3) with parental consent, the transmission of information about the child to the local educational agency or other service providers or agencies, to ensure continuity of services, including evaluation and assessment information, and copies of IFSPs that have been developed; and

(4) with the approval of the family, the convening of a conference among the program, the family, and the local educational agency at least 120 days, but no more than 270 days, before the child's third birthday, or, if earlier, the date on which the child is eligible for the preschool program under the Individuals with Disabilities Education Act, Part B.

§108.75.Public Outreach.

(a) Child find. Each program must develop and implement a child find plan which includes:

(1) ongoing contact and coordination with primary referral sources and other service providers and agencies according to the Department's standards, policies and guidance;

(2) information regarding availability of other local services including other ECI programs; and

(3) accepting referrals for early intervention services and evaluating each child for eligibility within 45 days of the referral.

(b) Public awareness. Each program must develop and implement a public awareness plan which includes:

(1) information on child find, early identification, referral, and access to early intervention services, locally and across the state;

(2) a variety of continuous methods for reaching the general public; and

(3) involvement and communication with public and private agencies; parent, professional, and advocacy groups; and other organizations or associations.

(c) Contractors must implement the use of the ECI logo and slogan and meet requirements listed in the ECI Graphic Standards Manual for all materials used by the ECI program for marketing, public awareness, child find, promotion, public education, and program correspondence related to the ECI program. Contractors must use "ECI" as part of their program name.

(d) The ECI logo and slogan are for use by contractors under contract with the Department or by entities not under contract when directed or authorized by the Department. All use must be in accordance with the ECI Graphic Standards Manual.

(e) Interagency coordination. Each program must develop and implement an interagency coordination plan which includes, as a minimum, procedures to:

(1) prevent duplication of assessments and services;

(2) coordinate referrals to and from ECI programs;

(3) participate in local and regional planning and coordination of groups affecting services to young children; and

(4) coordinate activities to make the most effective use of staff development and early intervention service provision.

§108.77.Safety Regulations.

(a) Contractors must have written policies and procedures which are implemented and evaluated to address safety regulations regarding emergencies for all buildings where ECI programs are housed.

(b) Accessibility and safety. Contractors must have written policies and procedures which are implemented and evaluated in the following areas.

(1) All ECI services must be available in buildings that are physically accessible to persons with disabilities.

(2) Buildings where the ECI program is housed (including offices) must be inspected annually by a local or state fire authority. A safety and sanitation inspection must be completed annually. If the fire or safety and sanitation inspection indicates that hazards exist, these hazards must be corrected.

(3) Buildings must be clean, free of hazards, free of insect and rodent infestation, in good repair, with adequate light, ventilation, and temperature control.

(4) An external emergency release mechanism must be provided for opening interior doors that can be locked from the inside. Locks may not be used to restrain a child within a room.

(5) Buildings must be able to be safely evacuated in the event of an emergency.

(c) Transportation safety. Contractors must have written policies and procedures which are implemented and evaluated in the following areas.

(1) The transportation system operated by the ECI program must meet local and state licensing, inspection, insurance, and capacity requirements.

(2) Children must be transported in an appropriately installed, federally approved child passenger restraint seat, appropriate to the child's age and size.

(3) Drivers of vehicles must have valid and appropriate drivers' licenses. Drivers must have current defensive driving certification.

(4) Drivers and drivers' aides must have training in first aid, emergency care of seizures, and be certified in cardiopulmonary resuscitation for children and infants.

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 March 9, 2009.

TRD-200900976

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: April 19, 2009

For further information, please call: (512) 424-4050

SUBCHAPTER B. PROCEDURAL SAFEGUARDS AND DUE PROCESS PROCEDURES

40 TAC §§108.101, 108.103, 108.105, 108.107, 108.109, 108.111, 108.113, 108.115, 108.117, 108.119, 108.121, 108.123, 108.125, 108.127, 108.129, 108.131, 108.133, 108.135, 108.137, 108.139

No other statute, article, or code is affected by this proposal.

§108.101.Purpose.

The purpose of this subchapter is to describe general requirements for procedural safeguards pertaining to the delivery of early intervention services.

§108.103.Responsibilities.

Each contractor shall be responsible for:

(1) establishing or adopting procedural safeguards that meet the requirements of the federal and state regulations;

(2) ensuring effective implementation of the safeguards; and

(3) providing oral and written explanation to the parent(s) regarding procedural safeguards during the pre-enrollment process and at other times when parental consent is required.

§108.105.Prior Notice.

Content of notice. In addition to the requirements in 34 CFR §303.403, the notice must be in sufficient detail to inform the parent(s) about:

(1) the issues to be considered and the reasons for taking these actions; and

(2) each record or report used as a basis for consideration.

§108.107.Parental Consent.

(a) In addition to the requirements in 34 CFR §303.404, written parental consent must be obtained before:

(1) changing service delivery; or

(2) releasing personally identifiable information as allowed by §108.129 of this subchapter (relating to Release of Personally Identifiable Information).

(b) The contractor must adopt procedures designed to encourage the parent(s) to consent to recommended assessment or evaluation procedures and to recommended services that the parent(s) have refused. The procedures may include:

(1) providing the parent(s) relevant literature or other materials; and

(2) offering the parent(s) peer counseling to enhance their understanding of the value of early intervention and to allay their concerns about participation in Part C programs.

(c) If a specific assessment or service is determined necessary by the IFSP team, the contractor may not limit or deny that assessment or service because the parent(s) has refused consent for another service or assessment.

§108.109.Surrogate Parents.

(a) Each contractor shall ensure that the rights of children eligible under this part are protected if:

(1) no parent can be identified;

(2) the contractor, after reasonable efforts, cannot discover the whereabouts of a parent; or

(3) the child is a ward of the state under the laws of Texas.

(b) The duty of the contractor includes the assignment of an individual to act as a surrogate parent for the child in a way consistent with existing state laws and regulations. This must include a method for:

(1) determining whether a child needs a surrogate parent;

(2) assigning a surrogate parent to the child; and

(3) providing training to ensure that the surrogate parent fully understands their role and responsibilities to represent the best interest of the child.

(1) A person selected as surrogate must have no interest that conflicts with the interests of the child represented.

(2) A person assigned as a surrogate parent must not be an employee of any state agency or a person or an employee of a person providing early intervention services to the child or any family member of the child.

(3) A person who qualifies to be a surrogate parent must not be an employee solely because he or she is paid to serve as a surrogate parent.

(4) A person selected as a surrogate parent must have knowledge and skills that ensure adequate representation of the interests of the child.

(5) The requirements of paragraphs (1) - (4) of this subsection ensure that the surrogate parent does not hold a job or a position that would either bias the decisions made for the child or make the surrogate parent vulnerable to the possibility of administrative retaliation for the execution of their responsibilities.

(d) A surrogate parent may represent a child in all matters related to:

(1) the evaluation and assessment of the child;

(2) development and implementation of the child's IFSPs, including annual evaluations and periodic reviews;

(3) the ongoing provision of early intervention services to the child; and

(4) any other rights established under this section.

§108.111.Early Childhood Intervention Procedures for Filing Complaints.

(a) An individual or organization may file a complaint with the Department alleging that a requirement of the Individuals with Disabilities Education Act, Part C (Act) or applicable federal and/or state regulations has been violated. The complaint must be in writing, be signed, and include the nature of the violation and a statement of the facts on which the complaint is based.

(b) A complaint may be filed directly with the Department without having been filed with the contractor or local program.

(c) The alleged violation must have occurred not more than one year before the date that the complaint is received by the public agency unless a longer period is reasonable because--

(1) the alleged violation continues for that child or other children; or

(2) the complainant is requesting reimbursement or corrective action for a violation that occurred not more than three years before the date on which the complaint is received by the public agency.

(d) Procedures for receipt of complaint are as follows.

(1) All complaints received by the Department concerning early intervention services shall be forwarded to the Assistant Commissioner, Division for Early Childhood Intervention Services. The Assistant Commissioner will log and assign all complaints, monitor the resolution of those complaints, and maintain a copy of all complaints for a five-year period.

(2) A complaint should be clearly distinguished from a request for an administrative hearing under Chapter 101, Subchapter J, Division 3 of this title and from a request for a hearing concerning the requirements of FERPA under §108.123 of this subchapter (relating to Opportunity for a Hearing).

§108.113.Early Childhood Intervention Procedures for Investigation and Resolution of Complaints.

(a) After receipt of the complaint, the Assistant Commissioner will assign a staff person to conduct an individual investigation, on-site if necessary, to make a recommendation to the Assistant Commissioner for resolution of the complaint. The child's and family's confidentiality is protected during the complaint resolution process.

(1) The complainant will have the opportunity to submit additional information, either orally or in writing, about the allegations in the complaint.

(2) All relevant information will be reviewed and an independent determination made as to whether a violation to the requirements of the Act occurred.

(b) Within 60 days of the receipt of the complaint, the Assistant Commissioner must resolve the complaint.

(c) An extension of the time limit under subsection (b) of this section shall be granted only if exceptional circumstances exist with respect to a particular complaint.

(d) Complainants shall be informed in writing of the final decision of the Assistant Commissioner and of their right to request the secretary of the United States Department of Education to review the final decision of the Assistant Commissioner. The Assistant Commissioner's written decision to the complainant will address each allegation in the complaint and contain:

(1) findings of fact and conclusions; and

(2) reasons for the final decision.

(e) To ensure effective implementation of the Assistant Commissioner's final decision and to achieve compliance with any corrective actions, the Assistant Commissioner will assign a staff person to provide technical assistance and appropriate follow-up to the parties involved in the complaint as necessary.

(f) In resolving a complaint in which it finds a failure to provide appropriate services, the Assistant Commissioner will remediate the denial of those services, including, as appropriate, the awarding of monetary reimbursement or other corrective action appropriate to the needs of the child and the child's family; and appropriate future provision of services for all infants and toddlers with disabilities and their families.

(g) When a complaint is filed, the Assistant Commissioner, Division for Early Childhood Intervention Services will offer mediation services as an alternative to proceeding with the complaint investigation. Mediation may be used when both parties agree. A parent's right to a due process hearing or complaint investigation will not be denied or delayed because they chose to participate in mediation. The complaint investigation will continue and be resolved within 60 days even if mediation is used as the resolution process.

(h) If a written complaint is received that is also the subject of a due process hearing under 34 CFR §303.420 or under §108.123 of this subchapter (relating to Opportunity for a Hearing), or contains multiple issues, of which one or more are part of that hearing, the part of the complaint that is being addressed in that hearing is set aside until the conclusion of the hearing. However, any issue in the complaint that is not a part of such action must be resolved within the 60-calendar-day timeline using the complaint procedures.

§108.115.Confidentiality Notice to Parents.

The Department and each contractor providing early intervention services have the following responsibilities in regard to confidentiality of information.

(1) The Department shall develop a document which is adequate to fully inform parents about the following requirements:

(A) a description of the extent to which the notice is given in the native languages of the various population groups in the state;

(B) a description of the children on whom personally identifiable information is maintained, the types of information sought, the methods the department intends to use in gathering the information (including the sources from whom information is gathered), and the uses to be made of the information;

(C) a summary of the policies and procedures which participating contractors must follow regarding storage, disclosure to third parties, retention, and destruction of personally identifiable information; and

(D) a description of all of the rights of parents and children regarding this information, the Family Educational Rights and Privacy Act, and implementing regulations.

(2) Confidentiality and procedural safeguards. Each contractor shall distribute the document developed by the department to all parents and ensure that they are fully informed about requirements related to confidentiality and procedural safeguards.

§108.117.Access Rights.

(a) The parent(s) of a child eligible under this chapter must be afforded the opportunity to inspect and review any Early Childhood Intervention (ECI) records relating to evaluations and assessments, eligibility determination, development and implementation of Individualized Family Service Plan (IFSPs), individual complaints dealing with the child, and any other area under this part involving records about the child and the child's family. Records are the records covered by the Family Educational Rights and Privacy Act of 1974, as amended, Title 20, United States Code Annotated, §1232g. Any participating agency, institution, or program which collects, maintains, or uses personally identifiable information from which information is obtained for the purpose of determining eligibility for or providing early intervention services will be subject to these provisions. The contractor shall comply with a request without unnecessary delay and before any meeting regarding an IFSP or hearing relating to the identification, evaluation, or placement of the child, and in no case, more than 45 days after the request has been made.

(b) The right to inspect and review records under this section includes:

(1) the right to a response from the participating contractors to reasonable requests for explanations and interpretations of the records;

(2) the right to request that the contractor provide copies of the records containing the information if failure to provide those copies would effectively prevent the parent(s) from exercising the right to inspect and review the records; and

(3) the right to have a representative of the parent(s) inspect and review the records.

(c) Contractors may presume that the parent(s) has authority to inspect and review records relating to his or her child unless the agency has been advised that the parent(s) does not have the authority under applicable state law governing such matters as guardianship, separation, and divorce.

(d) Record of access. Each contractor shall keep a record of parties obtaining access to service records collected, maintained, or used under this chapter (except access by parents and authorized employees of the participating agency), including the name of the party, the date access was given, and the purpose for which the party is authorized to use the records.

(e) Records on more than one child. If any record includes information on more than one child, the parent(s) of those children shall have the right to inspect and review only the information relating to their child or to be informed of that specific information.

(f) List of types and locations of information. Each contractor shall, on request, provide the parent(s) a list of the types and locations of service records collected, maintained, or used by the contractor.

§108.119.Fees for Records.

(a) Contractors may charge a fee for copies of records which are made for the parent(s) under this section if the fee does not effectively prevent the parent(s) from exercising their right to inspect and review those records.

(b) Contractors may not charge a fee to search for or to retrieve information under this section.

§108.121.Amendment of Records at Parent's Request.

(a) A parent who believes that information in records collected, maintained, or used under this section is inaccurate or misleading or violates the privacy or other rights of the child, may request the contractor which maintains the information to amend the information.

(b) The contractor decides whether to amend the information in accordance with the request within 30 days.

(c) If, after review of the request, the contractor decides the information is inaccurate, misleading or otherwise in violation of the privacy or other rights of the child, it amends the record accordingly and informs the parent in writing.

(d) If the contractor refuses to amend the information in accordance with the request, it informs the parent of the refusal, and advises the parent of the right to a hearing conducted in accordance with the requirements of the Family Educational Rights and Privacy Act (FERPA).

§108.123.Opportunity for a Hearing.

The contractor shall, on request, provide an opportunity for a hearing to challenge information in service records to ensure that it is not inaccurate, misleading, or otherwise in violation of the privacy or other rights of the child. This hearing must be conducted with the requirements of the FERPA.

§108.125.Minimum Requirements for Conducting a Hearing.

The hearing must meet at a minimum the following FERPA requirements.

(1) The contractor must hold the hearing within 30 days after it has received the request for the hearing from the parent(s).

(2) The contractor must give the parent(s) notice of the date, time, and place, reasonably in advance of the hearing.

(3) The hearing may be conducted by any individual including an official of the contractor, who does not have a direct interest in the outcome of the hearing.

(4) The contractor must give the parent(s) a full and fair opportunity to present evidence relevant to the issues under FERPA, including, but not limited to, FERPA regulations at 34 CFR §99.21. The parent(s) may, at their own expense, be assisted or represented by one or more individuals of his or her own choice, including an attorney.

(5) The contractor must make its decision in writing within 30 days.

(6) The decision must be based solely on the evidence presented at the hearing, and must include a summary of the evidence and the reasons for the decision.

§108.127.Results of Hearing.

(a) If, as a result of the hearing, the contractor decides that the information is inaccurate, misleading, or otherwise in violation of the privacy or other rights of the child or family, it must amend the information accordingly and so inform the parent(s) in writing.

(b) If, as a result of the hearing, the contractor decides that the information is accurate and not misleading or otherwise in violation of the privacy or other rights of the child or family, it must inform the parent(s) of the right to place in the record it maintains on the child or family, a statement commenting on the information or setting forth any reasons for disagreeing with the decision of the contractor.

(1) be maintained by the contractor as part of the records of the child or family as long as the record or contested portion is maintained; and

(2) if the records of the child or family or the contested portion is disclosed by the contractor to any party, the explanation must also be disclosed to the party.

§108.129.Release of Personally Identifiable Information.

(a) Unless authorized to do so under 34 CFR §99.31, parental consent must be obtained before personally identifiable information is:

(1) disclosed to anyone other than officials or employees of ECI participating agencies collecting or using the information; or

(2) used for any purpose other than meeting a requirement under this chapter.

(b) A contractor may request that the parent(s) provide a release to share information with others for legitimate purposes. However, when such a release is sought:

(1) the parent(s) must be informed of their right to refuse to sign the release. Notice of the right to refuse should appear on the release form;

(2) the release form must list the agencies and providers to whom information may be given and specify the type of information that might be given to each;

(3) the parent(s) must be given the opportunity to limit the information provided under the release and to limit the agencies, providers, and persons with whom information may be shared. The release form must provide ample space for the parent(s) to express in writing such limitations;

(4) the release must be revocable at any time;

(5) the release must be time-limited not to exceed one year; and

(6) if the parent(s) refuses to consent to the release of all or some personally identifiable information, the program will not release the information.

§108.131.Safeguards.

(a) Contractors shall protect the confidentiality of personally identifiable information at collection, storage, disclosure, and destruction stages.

(b) One official for each contractor shall assume responsibility for ensuring the confidentiality of any personally identifiable information.

(c) All persons collecting or using personally identifiable information must receive training or instruction regarding the state's policies and procedures.

(d) Each contractor must maintain, for public inspection, a current listing of the names and positions of those employees within the agency who may have access to personally identifiable information.

(e) Each public agency and contractor must keep a log, accessible to the parent(s), of all disclosures of confidential information made pursuant to a general release executed by the parent(s).

§108.133.Record Retention Period.

Unless a longer period is required by state or federal law, the contractor must retain records for five years after the child has been dismissed from services.

§108.135.Destruction of Information.

(a) The program must inform the parent(s) when personally identifiable information collected, maintained, or used under this chapter is no longer needed to provide services to the child and family.

(b) The information must be destroyed upon request of the parent(s); however, a permanent record of the child's name, address, phone number, attendance record, services received, and years completed and dismissed may be maintained without time limitation.

(c) "Destruction", as used in this section, means physical destruction or removal of personal identifiers from information so that the information is no longer personally identifiable.

§108.137.Release of Records.

(a) With the parent's informed consent, confidential Part C records may be provided to the public schools when the child is enrolled in school. If the parent(s) refuses to consent, confidential Part C records may not be intermingled with public school records, including records relating to special education.

(b) An agency or provider may not, without the parent's prior informed consent, redisclose confidential information obtained from another agency or provider, unless such redisclosure is permitted under the terms of the original disclosure made to the agency or provider.

§108.139.Enforcement.

The lead agency will ensure that all policies and procedures related to confidentiality and procedural safeguards will be enforced through supervision and monitoring.

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 March 9, 2009.

TRD-200900977

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: April 19, 2009

For further information, please call: (512) 424-4050

SUBCHAPTER C. EARLY CHILDHOOD INTERVENTION STAFF QUALIFICATIONS

40 TAC §§108.301, 108.303, 108.305, 108.307, 108.309, 108.311, 108.313, 108.315, 108.317, 108.319, 108.321

No other statute, article, or code is affected by this proposal.

§108.301.Staff Health Regulations.

(a) Contractors must have written policy and procedures related to staff health regulations which are implemented and evaluated to protect the health and safety of families and children.

(b) Staff development for health and safety issues. Contractors must have written policies and procedures which are implemented and evaluated in the following areas.

(1) All staff who work directly with children must receive training in first aid and emergency care of seizures and be certified in cardiopulmonary resuscitation for children and infants.

(2) All staff who work directly with children must receive training as directed by the Department in recognition of common childhood illnesses and universal precautions as defined by the Centers for Disease Control of the United States Public Health Service.

§108.303.Professional Requirements.

(a) Contractors must employ staff who meet the appropriate professional requirements and hold current professional credentials for their profession. Appropriate professional requirements are the entry level professional standards which:

(1) are based on the state's highest requirements applicable to the profession or discipline in which a person is providing early intervention services; and

(2) establish suitable qualifications for personnel providing early intervention services to eligible children and their families, who are served by state, local, and private agencies.

(b) ECI professional staff must abide by the licensure or certification requirements and the established rules of supervision and conduct for their professions.

(c) For the occupational categories for which state authority has not established professional standards, contractors must employ staff who are qualified in terms of education and experience for their assigned scopes of responsibilities and provide the required degree of supervision.

(d) In-service education. Each contractor shall annually assess and address the training needs of the early childhood intervention staff. Documentation of the development and implementation of each staff member's individualized professional development plan (IPDP) shall be maintained by the contractor.

(e) The director of the local ECI program must provide and document the amounts of appropriate supervision for all ECI contract staff and program staff to ensure the philosophy and intent of these regulations are met as adopted by the Department.

§108.305.Criminal Background.

Contractors must establish a procedure to ensure that employees have not been convicted of any felony or a misdemeanor related to child abuse or sexual abuse or any other offense against a person or family.

§108.307.Early Intervention Specialist (EIS) Professional.

(a) Definition. EIS Professional is an occupational title and occupational category specific to professionals employed by contractors with the Department. These professionals have demonstrated through their education and experience the knowledge and skills required in early intervention service delivery.

(b) Classes. The two classes of EIS Professionals are Entry Level Early Intervention Specialist Professional and Fully Qualified Early Intervention Specialist Professional.

(c) Scope of Responsibilities. Entry Level EIS Professionals and Fully Qualified EIS Professionals may represent the discipline of early childhood intervention and may be one of the two required professionals on an Interdisciplinary Team (IDT). EIS Professionals may conduct family pre-enrollment processes; participate in determining eligibility, conduct developmental screenings, evaluations and assessments, participate in the development and implementation of Individualized Family Service Plans, and provide service coordination, developmental services, and family education services.

§108.309.Supervision of Entry Level EIS Professionals.

The Entry Level EIS Professionals must receive a minimum of one hour per week of direct supervision from a fully qualified professional until successful completion of the requirements to be a Fully Qualified EIS Professionals. The supervising professionals may be from any of the disciplines related to early intervention and must meet the highest state standards for their profession.

§108.311.Fully Qualified EIS Professional Requirements.

To be recognized as a Fully Qualified EIS Professional an individual must:

(1) meet the educational requirements of a bachelor's degree which includes a minimum of 18 hours of course credit relevant to early intervention service provision and submit a statement of intent to complete the required demonstrations of early intervention knowledge and skills and apply for full professional recognition;

(2) within nine months of date of hire, submit a progress report of the demonstration of early intervention knowledge and skills signed by an ECI program director and supervisor;

(3) within two years of date of hire, complete the Competency Demonstration System and submit documentation to the Department; and

(4) complete the required processes in paragraphs (1) and (2) of this section, or lose professional status and privileges. Loss of professional status means the individual will no longer be able to independently perform the scope of responsibilities of an EIS Professional.

§108.313.Continuing Professional Education Requirements.

(a) EIS Professionals must meet annual continuing professional education requirements to maintain their status. Continuing professional education consists of the planned individual learning experiences as described in the EIS Professional's annual Individual Professional Development Plan (IPDP), which shall include completion of a minimum of ten contact hours of approved continuing professional development education experiences. In addition, EIS Professionals must obtain three hours of training in ethics every two years.

(b) EIS Professionals must submit annually the record of their continuing education on or before the anniversary of the certificate date. Failure to submit the record of continuing education by the anniversary date will result in a loss of professional status and privileges.

§108.315.Registry.

The Department shall issue certificates of recognition to and maintain a registry of individuals who are enrolled in and successfully complete the requirements to be Fully Qualified EIS Professionals. Information and documentation in the EIS Registry is subject to the Public Information Act.

§108.317.Grievance Process.

Each contractor shall have a procedure for local resolution of personnel grievances. A party who has a disagreement with the local decision regarding his qualifications or status as an EIS Professional shall have an opportunity for dispute resolution at the local level. Contractors may use existing personnel grievance procedures to resolve disagreements and will inform their staff of their existence.

§108.319.Early Intervention Specialist Code of Ethics.

An Early Intervention Specialist (EIS) must observe and comply with the following standards of conduct in the EIS code of ethics.

(1) EISs must know and comply with both their program's policies and the Department's policies, procedures, and standards.

(2) EISs must operate only within the boundaries provided by their education, training and credentials.

(3) EISs must take measures to avoid imposing or inflicting harm.

(4) EISs must truthfully represent their services, professional credentials, and qualifications. EISs must inform families of the scope and limitations of their credentials.

(5) EISs must strive to maintain and improve their professional knowledge, skills, and abilities.

(6) EISs must maintain the confidentiality of families served by the ECI Program in accordance with the Department's policies, procedures, and standards.

(7) EISs must establish professional boundaries and avoid establishing dual relationships or conflicts of interest with families. Any prior relationships with a family member must be reported to the EIS's supervisor immediately.

(8) Sexual or intimate relationships are prohibited between EIS and family members of children enrolled in the ECI program that employs the EIS and up to three years after the child "exits" the ECI program.

(9) Financial relationships between EIS and family members of children enrolled in the ECI program that employs the EIS are prohibited until the child "exits" the ECI program.

(10) EISs must not exploit their position of trust and influence with a family by benefiting from relationships established as an EIS.

(11) EISs must not provide direct service while impaired, including impairments that are due to the use of medication, illicit drugs, or alcohol.

(12) EISs must not falsify documentation.

(13) EISs must not refuse to provide services for which they are credentialed on the basis of a child's and/or family's gender, race, ethnicity, color, religion, national origin, sexual orientation, or political affiliation, and they must not refuse to provide services for which they are credentialed solely on the basis of a child's or family's socioeconomic status or disability.

(14) EISs must make reasonable efforts to ensure that families receive appropriate services when the EISs are unavailable or anticipate that they will no longer be employed with the contractor.

(15) EISs have a professional obligation to report unethical behavior demonstrated by colleagues throughout the ECI system to their program director and to the appropriate board or state agency.

§108.321.Violations of the EIS Code of Ethics.

(a) An EIS who violates any of the standards outlined in §108.319 of this subchapter (relating to Early Intervention Specialist Code of Ethics), is subject to his or her employer's disciplinary procedures. Additionally, the EIS's employer must complete an EIS Code of Ethics Incident Report and send a copy to the Department.

(b) The EIS Code of Ethics Incident Report is kept in the EIS's Registry file at DARS Division for Early Childhood Intervention Services.

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

Filed with the Office of the Secretary of State on March 9, 2009.

TRD-200900978

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: April 19, 2009

For further information, please call: (512) 424-4050

SUBCHAPTER D. GENERAL PROVISIONS FOR CASE MANAGEMENT SERVICES FOR INFANTS AND TODDLERS WITH DEVELOPMENTAL DISABILITIES

40 TAC §§108.401, 108.403, 108.405, 108.407, 108.409, 108.411, 108.413, 108.415

No other statute, article, or code is affected by this proposal.

§108.401.Introduction.

Targeted Case Management Services for Infants and Toddlers with Developmental Disabilities are included in the Texas Medical Assistance Program (Medicaid). The general operation of the Texas Early Childhood Intervention (ECI) program is governed by the Department of Assistive and Rehabilitative Services.

§108.403.Definitions.

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

(1) Assessment--The ongoing procedures used by appropriate qualified personnel throughout the period of a child's eligibility to identify:

(A) the child's unique needs and strengths;

(B) the family's strengths and needs related to their child's development; and

(C) the nature and extent of intervention services needed by the child and the family in order to assess subparagraphs (A) and (B) of this paragraph.

(2) Department--The entity designated as the lead agency by the Governor under 20 U.S.C. §§1431 - 1444. The Department of Assistive and Rehabilitative Services has the final authority and responsibility for the administration, supervision, and monitoring of programs and activities under this system. The Department has the final authority for the obligation and expenditure of funds and compliance with all applicable laws and rules.

(3) Caregiver--A person, such as a parent, foster parent, grandparent, child-care worker, who has responsibilities for the care of a child.

(4) Case management--Services provided to assist eligible individuals in gaining access to needed medical, social, educational, developmental, and other appropriate services.

(5) Case manager (service coordinator)--An Early Childhood Intervention (ECI) local program staff person who is assigned to a child and family, who is the single contact point for families, and who is responsible for assisting and empowering families in accessing services and coordinating those services.

(6) Developmental delay--A significant variation in normal development in one or more of the following areas as measured and determined by appropriate diagnostic instruments and procedures by an interdisciplinary team and by informed clinical opinion: cognitive development; physical development, including vision and hearing, gross and fine motor skills, and nutrition status; communication development; social and emotional development; and adaptive development or self-help skills.

(7) Developmental disability--Children from birth to age three who have substantial developmental delay or specific congenital or acquired conditions with a high probability of resulting in developmental disabilities if services are not provided.

(8) ECI--The Texas Early Childhood Intervention Program.

(9) Early Childhood Intervention (ECI) services--Individualized intervention services provided to children from birth to age three, and their families, as:

(A) determined by the interdisciplinary assessment and listed in the individualized family services plan; and

(B) provided in accordance with the rules of the Department in this chapter.

(10) Individualized Family Service Plan (IFSP)--A written plan, developed by the interdisciplinary team, based on all assessment and evaluation information and including the family's description of their strengths and needs, which outlines the intervention services for the child and the child's family.

(11) Interdisciplinary team--The child's parent(s) and a minimum of two professionals from different disciplines who meet to share evaluation information, determine eligibility, assess needs, and develop the Individualized Family Service Plan (IFSP). The team must include the case manager (service coordinator) who has been working with the family since the initial referral, or the person responsible for implementing the IFSP, and a person directly involved in conducting the evaluations and assessments.

(12) Intake--Process that begins with telephone or face-to-face contacts with the child's family to provide information about early intervention and case management and to assist the child and family in gaining access to the evaluation and the assessment process. This process establishes potential eligibility for ECI services, provides a basic introduction to the program's philosophy and operating procedures, gathers information needed for enrollment, and schedules and helps the family prepare for a comprehensive interdisciplinary evaluation and assessment. Pre-Plan of Care service coordination is provided as needed.

(13) Monitoring--Periodic tracking, observation and follow up to ensure that services have been delivered, that services have been delivered on a timely basis, and that the services are addressing the clients' needs. Monitoring and follow up activities are conducted as needed and are documented in the child's case folder.

(14) Needs assessment--The needs assessment is conducted and documented by the case manager in conjunction with the Medicaid client's family. The documentation lists medical, social, nutritional, educational, developmental, and other appropriate needs of the Medicaid client. Individuals found not to be eligible for early intervention services, or whose families choose not to enroll in early intervention services are to be referred to any appropriate alternative care or services.

(15) Plan of care--Information gathered from the comprehensive needs assessment is incorporated into an Individualized Family Service Plan of care (IFSP). With family consent, family concerns, priorities and resources are identified and documented in the plan. The plan summarizes assessment results, includes the services necessary to enhance the development of the child and the capacity of the family to meet the child's unique needs, and must be coordinated with other service providers involved in delivery of services to the child and family.

(16) Reassessment and Transition Planning--A reassessment of the client's progress and needs is conducted at least every six months. The case manager documents the reassessment in the client's case folder. At reassessment the case manager will determine if modifications to the service plan are necessary and if the level of involvement by the case manager should be adjusted. When services are no longer needed, or the child no longer qualifies for services, the case manager facilitates the planning, coordination, and transition to other appropriate care.

(17) Service coordination--Through linkage, coordination, facilitation, assistance, anticipatory guidance, and the provision of information about the child's medical needs to other health care providers, the case manager ensures the recipient's access to the care, resources and services to meet the client's needs. The case manager may assist the family in making applications for services, confirm service delivery dates with ECI staff, providers and supports, and assist the family with scheduling needs. The case manager assists the family in taking responsibility for ensuring that services are performed, and works with medical providers, ECI staff, and other community resources to coordinate care.

(18) Texas Health Steps--The name adopted by the State of Texas for the federally mandated Early and Periodic Screening, Diagnosis and Treatment (EPSDT) program. It includes the State's Comprehensive Care Program extension to EPSDT.

(19) Time and Financial Information (TAFI)--A combined cost report and time study report, collected quarterly from providers.

§108.405.Reimbursable Services.

(a) Targeted Case management services are reimbursable to Medicaid providers who meet the conditions for provider participation as specified in §108.409 of this subchapter (relating to Conditions for Case Management Provider Participation). Reimbursable case management services include contacts with the child's caregiver on behalf of the child, or with other service providers or professionals on behalf of the child, for the purpose of assisting that child in gaining access to needed medical, social, educational, developmental, and other appropriate services.

(b) Case management services are not reimbursable as Medicaid services when another payor is liable for payment or if case management services are associated with the proper and efficient administration of the state plan. Case management services associated with the following are not payable as optional targeted case management services under Medicaid:

(1) Medicaid eligibility determinations and redeterminations;

(2) Medicaid eligibility intake processing;

(3) Medicaid preadmission screening;

(4) Prior authorization for Medicaid services;

(5) Required Medicaid utilization review;

(6) Texas Health Steps program administration;

(7) Medicaid "lock-in" provided for under the Social Security Act, §1915(a);

(8) Services that are an integral or inseparable part of another Medicaid service;

(9) Outreach activities that are designed to locate individuals who are potentially eligible for Medicaid; and

(10) Any medical evaluation, examination, or treatment billable as a distinct Medicaid-covered benefit. However, referral arrangements and staff consultation for such services are reimbursable as case management services.

§108.407.Recipient Eligibility for Early Childhood Intervention (ECI) Case Management Services.

In order to receive ECI case management services, the recipient must meet the following criteria:

(1) be eligible for Medicaid services during the month that the services are provided, and

(2) have a developmental delay, as defined in §108.403 of this subchapter (relating to Definitions). ECI providers must determine developmental delay based on the criteria described in subparagraphs (A) - (C) of this paragraph:

(A) Children are eligible who have a medically diagnosed physical or mental condition that has a high probability of resulting in developmental delay and is included in the list of covered medical conditions approved by the Department.

(B) Children are eligible who are delayed in one or more of the following areas of development: cognitive, motor, communication, social-emotional, or adaptive skills. Eligibility must be verified by the determination of the specific level of delay by a test performance on a validated comprehensive developmental inventory or standardized test.

(i) Administration of an assessment tool, or

(ii) Informal testing procedures in a variety of settings.

§108.409.Conditions for Case Management Provider Participation.

In order to be reimbursed for Early Childhood Intervention (ECI) services as specified in §108.405 of this subchapter (relating to Reimbursable Services), a provider must:

(1) be certified by the Texas ECI program as meeting the standards for service providers established by the Texas Early Childhood Intervention Program Services, as specified in this chapter;

(2) comply with all applicable federal and state laws and regulations governing the services provided;

(3) ensure that services are provided by appropriately qualified staff as specified in §108.411 of this subchapter (relating to Qualified Personnel);

(4) be enrolled and approved for participation as a provider in the Texas Medical Assistance (Medicaid) Program;

(5) sign a written provider agreement with ECI or its designee;

(6) comply with the terms of the provider agreement and all requirements of the Texas Medical Assistance Program, including regulations, rules, handbooks, standards, and guidelines published by ECI or its designee; and

(7) bill for services covered by the Texas Medical Assistance Program in the manner and format prescribed by ECI or its designee.

§108.411.Qualified Personnel.

Early Childhood Intervention (ECI) case management services must be provided by case managers who meet the educational and work experience requirements, commensurate with their job responsibilities, as specified in §108.407 of this subchapter (relating to Recipient Eligibility for Early Childhood Intervention (ECI) Case Management Services); staff qualifications standards developed by the Department; and who have also completed the ECI Case Management Curriculum.

§108.413.Retention of Records.

Providers of Early Childhood Intervention (ECI) services must maintain and retain all necessary records and claims, as specified in §108.415 of this subchapter (relating to Provider Records), to fully document the services and supplies provided to a Medicaid recipient. These records must be made available promptly upon request to the Texas Early Childhood Intervention Program (ECI), the Texas attorney general's office, the Department's designee, and representatives of the United States Department of Health and Human Services. Upon request, the provider must submit copies of their records, at no cost, to representatives of the agencies specified in this section.

§108.415.Provider Records.

(a) A provider must allow DARS and all appropriate federal and state agencies or their representatives to inspect, monitor, or evaluate client records, books, and supporting documents pertaining to Medicaid services provided. The provider and the subcontractors must make these documents available at reasonable times and for reasonable periods.

(b) The provider must keep financial and supporting documents, statistical records, and any other records pertinent to the Medicaid services for which a claim or Time and Financial Information (TAFI) report was submitted to ECI or its agent. The records and documents must be kept for a minimum of five years after the end of the contract period or for five years after the end of the federal fiscal year in which services were provided (if a provider agreement/contract has no specific termination date in effect). If any litigation, claim, or audit involving these records begins before the five year period expires, the provider must keep the records and documents for not less than five years or until all litigation, claims, or audit finds are resolved. The case is considered resolved when a final order is issued in litigation, or ECI and provider enter into a written agreement. In this section, contract period means the beginning date through the ending date specified in the original agreement/contract; extensions are considered separate contract periods.

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 March 9, 2009.

TRD-200900979

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: April 19, 2009

For further information, please call: (512) 424-4050

SUBCHAPTER E. DEVELOPMENTAL REHABILITATION SERVICES

40 TAC §§108.501, 108.503, 108.505

No other statute, article, or code is affected by this proposal.

§108.501.Reimbursable Services.

(a) Services that are covered under the Developmental Rehabilitation Services Program are reimbursable to Medicaid providers who meet the conditions for provider participation as specified in §108.505 of this subchapter (relating to Conditions for Provider Participation in the Developmental Rehabilitation Services Program). Developmental Rehabilitation Services are diagnostic, evaluative, and consultative services for the purposes of identifying or determining the nature and extent of, and rehabilitating an individual's medical or other health-related condition. They are medical and/or remedial services that integrate therapeutic interventions into the daily routines of the child and family in order to restore or maintain function and/or to reduce dysfunction resulting from a mental or physical disability or developmental delay. Services are designed to enhance development in the physical/motor, communication, adaptive, cognitive, social or emotional and sensory domains, or to teach compensatory skills for deficits that directly result from medical, developmental or other health-related conditions. Developmental Rehabilitation Services are provided as specified in the active Individualized Family Service Plan (IFSP) developed in accordance with 40 TAC §108.5 of this chapter (relating to Service Delivery Requirements for Comprehensive Services). The services include:

(1) developmentally appropriate individualized skills training and support to foster, promote, and enhance child engagement in daily activities, functional independence, and social interaction;

(2) assistance to caregivers in the identification and utilization of opportunities to incorporate therapeutic intervention strategies into daily life activities that are natural and normal for the child and family;

(3) continuous monitoring of child progress in the acquisition and mastery of functional skills to reduce or overcome limitations resulting from disability or developmental delays.

(b) The services listed in subsection (a)(1) - (3) of this section are performed by or under the supervision of a licensed physician, registered nurse, licensed physical therapist, licensed occupational therapist, licensed speech language pathologist, licensed professional counselors, or licensed master social workers-advanced clinical practitioners acting within their scope of practice. Supervision in this section means participation in the initial and annual comprehensive assessment of the child as well as participation in the initial and annual development of the IFSP and any subsequent revisions of the plan that result in service changes.

(1) provided to children with a diagnosis of a developmental disability defined as a severe, chronic disability of a person which:

(A) is attributable to mental or physical impairment or combination of mental and physical impairments;

(B) is manifested before the person attains age 22;

(D) results in substantial functional limitations in three or more of the following areas of major life activity: self-care, receptive and expressive language, learning, mobility, self-direction, capacity for independent living, or economic self-sufficiency, or a diagnosis of mental retardation; or

(2) the services are guaranteed under the provisions of Individuals with Disabilities Education Act (IDEA) Part B.

§108.503.Recipient Eligibility for Services Funded by the Developmental Rehabilitation Services Program.

In order to receive Developmental Rehabilitation Services the recipient:

(1) must be enrolled in the Texas Medical Assistance Program;

(2) must be age 21 and under;

(3) must demonstrate the need for these services as documented in an active Individualized Family Service Plan (IFSP) developed in accordance with 40 TAC §108.5 of this chapter (relating to Service Delivery Requirements for Comprehensive Services).

§108.505.Conditions for Provider Participation in the Developmental Rehabilitation Services Program.

(a) In accordance with the regulations at 42 CFR §431.51, all willing and qualified providers may participate in this program.

(b) In order to be reimbursed for developmental rehabilitation services as specified in §108.501 of this subchapter (relating to Reimbursable Services), a provider must:

(1) meet applicable state and federal laws governing the participation of providers in the Medicaid Program;

(2) sign a provider agreement with the Medicaid single state agency;

(3) be certified by the Department;

(4) provide services under the supervision of a licensed physician, registered nurse, licensed physical therapist, licensed occupational therapist, licensed speech language pathologist, licensed professional counselor, or licensed master social worker-advanced clinical practitioner acting within their scope of practice who are employed as agency or contract staff, or developmental rehabilitation services by a:

(A) licensed therapist,

(B) licensed counselor,

(D) registered nurse,

(E) Early Intervention Specialist (EIS) professional participating in or certified through the ECI Competency Demonstration System,

(F) certified teacher certified through the ECI Competency Demonstration System, or

(G) psychological associate;

(5) provide to the maximum extent appropriate to the needs of the child, early intervention services in natural environments, including home and community settings in which children without disabilities participate. Natural environments mean settings that are natural or normal for the child's age peers who have no disabilities; and

(6) deliver services in accordance with the scope and duration of the Individualized Family Service Plan (IFSP).

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 March 9, 2009.

TRD-200900980

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: April 19, 2009

For further information, please call: (512) 424-9050

SUBCHAPTER F. SYSTEM OF FEES

40 TAC §108.601, §108.603

No other statute, article, or code is affected by this proposal.

§108.601.Purpose.

The purpose of this subchapter is to establish a system of payments for early intervention services, including a schedule of sliding fees, as authorized by the Individuals with Disabilities Education Act (IDEA, 20 U.S.C. §1400 et seq.) and its implementing regulations (34 C.F.R. Part 303), and to establish procedures to be used to determine a family's cost share for early intervention services based on their ability to pay.

§108.603.Administration of Family Cost Share System.

(a) Each ECI program must implement the family cost share system of sliding fees for all children enrolled in ECI comprehensive services in compliance with this subchapter, DARS policies concerning ECI and the contract.

(b) Prior to collection of income information or imposition of fees, parents must be fully informed of their right to receive certain ECI services at no cost, their right to refuse any services they do not wish to receive, their right to receive a review of their cost share or amounts due by an administrator of the program on request, and their right to information about any method the program may use to verify family income and allowable expenses.

(c) Programs must ensure that the inability of a family to pay for services will not result in the delay or denial of services to the child or the family.

(d) Determination of family income. The program will calculate the family's ability to pay based on the family's income in the following manner:

(1) During the intake process and at each six month and annual Individualized Family Service Plan (IFSP) review the program will collect information from the family regarding the family's gross income.

(2) The program may require verification of income from families based on written local policies or may rely on family self-report of income.

(A) Except as provided in subparagraph (B) of this paragraph, families with proof of enrollment in Medicaid, CHIP, food stamps, SSI or TANF cash benefits for all children enrolled in ECI are automatically assumed to have an inability to pay. Children in the conservatorship of the State including children in foster care are automatically determined to have an inability to pay.

(B) Families enrolled in Medicaid who have private insurance and consent to having their private insurance billed will be automatically assumed to have an inability to pay and need not provide further information for family cost share determination, even if their private insurance denies all claims for coverage.

(C) Enrollment of a child in a Medicaid waiver program is not deemed to be evidence of inability to pay if the family is not eligible for other Medicaid benefits.

(D) All children with auditory or visual disabilities who are eligible for a free and appropriate public education from birth under the Texas Education Code, §29.003(b)(1) are exempt from the cost share system. A note of the exemption shall be included on the Family Cost Share Agreement.

(3) Once the annual gross family income has been determined, the parents may request that their annual adjusted family income be calculated by deducting allowable expenses from the gross income.

(A) Allowable expenses are those expenses expected to occur and/or be paid during the term of the IFSP and may include:

(i) Medical or dental expenses not reimbursed by insurance that the family incurred and which are expected to continue during the current IFSP period.

(ii) Payment toward outstanding medical or dental debt.

(iii) Medical and/or dental expenses and debt may include those accrued by all family members.

(iv) Childcare and respite expenses not reimbursed by other sources.

(v) Costs and fees associated with the adoption of a child.

(vi) Court-ordered child support payments for children who are not counted as family members or dependents in calculating the adjusted income and family cost share.

(B) The program may require verification of expenses from families based on written local policies or may rely on family self-report of expenses.

(4) Copies of income and/or expense documents need not be maintained by the program if an ECI employee reviews the documents and provides a written statement of verification, including a notation of the source of the documentation.

(5) A family who refuses to provide information for family cost share determination when requested by the program will be assessed as able to pay the highest cost share reflected on the sliding fee scale, until such time as they submit the required information. Services required to be provided at no cost will not be denied or delayed if the family fails to provide income information.

(6) If the program reviews the family's request for deductions to gross family income due to allowable expenses and finds that adjustments to the cost share are warranted, the cost share will take effect at the beginning of the next calendar month.

(7) Income is calculated based on income for all parents or guardians living in the same home with the child as a family. In situations where there is shared physical custody or shared legal or financial responsibility for a child, the adjusted income(s) of the parent(s) who financially supports the child will be considered unless conditions warrant otherwise.

(e) Determination of ability to pay and assignment of family cost share.

(1) Using the sliding scale developed by DARS, the program will determine the family's assigned monthly cost share. The sliding fee scale can be obtained from the Department.

(2) Families with a family income at or below 250 percent of the Federal Poverty Level will have a family cost share of $0 and are determine to have an inability to pay.

(3) Families enrolled in Medicaid who have private insurance and refuse to allow ECI to bill their private insurance, thereby preventing submission of Medicaid claims, will be assigned a monthly cost share of $10.

(f) IFSP services.

(1) Those services that must be provided at no cost to the family are:

(A) child find;

(B) evaluation and assessment;

(D) all services to children with auditory or visual disabilities eligible for a free and appropriate public education from birth under the Texas Education Code, §29.003(b)(1);

(E) service coordination;

(F) translation and interpreter services; and

(G) administrative and coordination activities related to the implementation of procedural safeguards and other components of the statewide system of early intervention services.

(2) The monthly family cost share is the maximum amount a family can be charged for all other services provided by ECI as part of an IFSP.

(3) The state respite program funded with state discretionary funds is not subject to the cost share system.

(4) A family will be responsible for the assigned monthly cost share unless no services, other than those listed in paragraph (1) of this subsection, were delivered in the month.

(5) The maximum monthly cost share for which the family will be responsible will be indicated on a Family Cost Share Agreement form that the family must sign.

(6) For a family with an ability to pay, services included on the IFSP which are subject to cost share shall not be provided until the family signs the Family Cost Share Agreement.

(7) Services included on the IFSP which are not subject to cost share shall begin immediately after the IFSP is developed.

(g) Review of family cost share.

(1) The family's ability to pay and cost share amount will be reviewed at the six month review and annual IFSP meeting, or at any time the family requests a review, including immediately following initial assessment of ability to pay. Programs may provide for a streamline review without completing a new Family Cost Share Agreement when there has been no change in family income or size since the previous review.

(2) ECI programs must develop a local process for a family to request reconsideration or adjustment of their assigned family cost share and/or to request a waiver of their cost share obligation, amounts currently due or overdue based on extraordinary circumstances, including amounts due based on denial of claims by a third-party payor as per subsection (h)(1)(A) of this section. Adjustments for allowable expenses should be made prior to the consideration of extraordinary expenses. The program may initiate the review process when staff members become aware that the family is experiencing extraordinary circumstances that impact the family's ability to pay their cost share obligations.

(A) The review should be conducted by the program director or designated administrator.

(B) Examples of circumstances that could justify a reconsideration or change of a family's assigned cost share, or that could justify a temporary waiver from their monthly cost share obligation or amounts currently due or overdue, could include but are not limited to:

(i) increase or decrease in income, including loss of job or temporary unpaid leave from employment;

(ii) short-term medical expenses not deducted during determination of adjusted income;

(iii) extraordinary child care or respite expenses not deducted during the determination of adjusted income;

(iv) additional dependants or change in family size;

(v) catastrophic loss such as fire, flood or tornado;

(vi) short-term financial hardship such as major repair to the family home or car; or

(vii) other extenuating circumstances or financial obligations which the family feels are not adequately considered in the assessment of adjusted income, assigned monthly cost share, or their ability to meet their cost share in any particular month(s).

(C) Families may be asked to submit verification of such circumstances. Refusal to do so may result in denial of the cost share adjustment.

(3) If the program determines that adjustments to the cost share are warranted, the revised cost share will take effect at the beginning of the next month. The Family Cost Share Agreement must be amended for any revision of the family cost share, and family signature must be obtained for the revised Family Cost Share Agreement.

(4) Families must be informed of the program's process for reviewing their family cost share amount before they are asked to sign the Family Cost Share Agreement.

(5) The family's last signed IFSP and Family Cost Share Agreement will remain in effect during any review process. For families without a signed Cost Share Agreement, the services included on the IFSP which are not subject to cost share shall begin or continue during any period of review.

(h) Children with Insurance.

(1) Third-party payors.

(A) With parental consent, programs must bill Medicaid, CHIP, TriCare and private insurance or other third-party payors for covered services delivered according to the IFSP. To allow the local program to establish insurance billing, in the initial six months of service, family cost share shall be set at $0 as long as the child maintains insurance coverage and the parent continues to provide the program with consent to bill the insurance for ECI services. After the initial six months, third-party reimbursement of any IFSP service(s) will satisfy the family's cost share obligation for the month the service(s) was delivered. If the third-party payor completely denies coverage for IFSP services subject to fees, the family will be responsible for the assigned cost share.

(B) Any applicable insurance co-payments for services may be paid with ECI federal funds.

(2) Billing families for services.

(A) Programs must bill the family for the assigned cost share.

(B) The assigned family cost share is the maximum amount to be billed to the family regardless of the number of children in the family receiving services from ECI.

(3) Payment and non-payment of fees.

(A) Families will have 30 days from the billing date to pay their family cost share. All unpaid balances due from the family after 30 days will be considered delinquent unless the delay in payment is due to a delay in third-party reimbursement or notice of denial of a claim from a private or public third-party payor.

(B) Services subject to cost share will be suspended after 90 days for non-payment of family cost share. For families consenting to payment by third-party payors, the 90-day time period will begin when notice is first received that the third-party payor has denied all claims for reimbursement and all appeals are exhausted, if applicable. Partial reimbursement by a third-party payor will satisfy the family's cost share obligation for the month, as per paragraph (1)(A) of this subsection.

(C) Families must be notified that failure to maintain their cost share account in good standing will, after 90 days, result in the suspension of IFSP services that are subject to family cost share, and that if services are later reinstated, the program cannot guarantee that they will be reinstated on the same schedule or with the same individual service provider as prior to suspension.

(D) Service coordination and other services not subject to family cost share must be continued during any period of suspension, except that respite vouchers may be denied for payment during a period of suspension.

(E) A notation must be made on the Family Cost Share Agreement that services subject to family cost share have been suspended due to non-payment. If a family transfers between Texas ECI programs, the Family Cost Share Agreement will be transferred to the receiving ECI program along with the IFSP.

(F) Services that have been suspended will be reinstated when the family's account is paid in full or the family negotiates an acceptable payment plan with the local program. If more than six months have transpired since suspension, the IFSP team must reassess the appropriateness of the IFSP before reinstating services. The IFSP and the Family Cost Share Agreement should reflect the date of the reinstatement of services.

(G) Programs must have a written local policy for collecting delinquent family cost share. Documentation must be kept of reasonable attempts to collect on unpaid balances. Reasonable attempts include multiple attempts at written notification, phone notification and/or e-mail. The Program Director or Administrator may modify a family's payment plan or cost share if circumstances warrant.

(i) Program fiscal and record-keeping policies.

(1) Revenue received from the family cost share may only be used for early intervention services within the ECI program and may not supplant any other local fund sources. Fees collected must be reported to the ECI state office as program income.

(2) The Family Cost Share Agreement and any financial records related to income, expenses, and payment history shall be kept separate from the child's other educational records, and should not be forwarded to a school district or other non-ECI service provider(s) at any time unless requested by the family. All financial records must be maintained in a manner consistent with the Family Educational Rights and Privacy Act.

(3) The Family Cost Share Agreement and financial records must be transferred to another ECI program in the state if the child and family transfer to another ECI program.

(4) The Family Cost Share Agreement and financial records are subject to subpoena, if applicable.

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

Filed with the Office of the Secretary of State on March 9, 2009.

TRD-200900981

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: April 19, 2009

For further information, please call: (512) 424-4050

SUBCHAPTER G. CONTRACT REQUIREMENTS

40 TAC §§108.701, 108.703, 108.705, 108.707, 108.709, 108.711

No other statute, article, or code is affected by this proposal.

§108.701.Application and Program Requirements for Comprehensive Services.

(a) Funds for comprehensive services are available to public or private service organizations that may be current or potential providers of early intervention services for eligible children.

(b) A competitive procurement process may be used to ensure that the Department obtains the best value in purchasing services.

(c) The Department shall disseminate a funding application. Copies are available upon request from the Department of Assistive and Rehabilitative Services (DARS), Division for Early Childhood Intervention Services.

(d) The application shall consist of the forms and related material that the applicant shall complete to apply to receive funding for performing early intervention services. Applications must be submitted for a period specified in the funding application instructions.

(e) Applications must be submitted in accordance with DARS' instructions.

(f) Applications which are late or substantially incomplete will not be accepted and will be returned to the applicant with an explanation.

(g) Total program cost. Applications must include the total program cost projected for ECI program operations. The total program cost is defined as the sum of the total ECI share plus the total applicant share including program income.

(h) Program income. The contractor shall comply with the requirements of the contract, Uniform Grants Management Standards (UGMS) and any program-specific policies related to program income.

(i) Eligibility for continued funding shall be contingent upon the contractor's performance and progress toward meeting performance requirements, compliance with state standards, implementation of program review findings, and availability of funds. The contractor shall submit an annual application for continuation funding.

§108.703.Contract Award.

(a) Following the review process, the Department will determine approval of funding recommendations. Each applicant will be notified in writing of the Department's decision. The reason for a denial will be communicated in writing to the applicant.

(b) Decisions for award of subsequent contracts will follow the procedures used for awarding initial contracts.

§108.705.Contract.

(a) An approved applicant will enter into a contract with the Department of Assistive and Rehabilitative Services (DARS), Division for Early Childhood Intervention Services, prior to being allocated funds. A contract is not fully executed until it has been signed by the Department and the applicant.

(1) The contract must be signed by an official authorized to enter into such agreements on behalf of the governing body.

(2) The contract cannot be altered without authorized officials of both the contractor and DARS providing written approval prior to the effective date of the change.

(3) No payment or advance of funds will be made until the contract is fully executed.

(4) By signing the contract the applicant agrees to all terms included therein and to adherence with all applicable statutes, rules, policies and procedures of the department, including subsequent amendments.

(b) The contract shall:

(1) contain provisions requiring the contractor to comply with the requirements in these sections, including statutes, rules, policies and procedures of the Department, including subsequent amendments, and the fiscal requirements on the administering, accounting, auditing, and recovering of funds as authorized by the Uniform Grant Management Standards (UGMS);

(2) state the contract number of children; this is the total number of eligible children that the provider has the capacity to serve at any one time;

(3) authorize the Department to adjust the contract amount as appropriate;

(4) authorize the Department to impose sanctions for noncompliance with contract terms and conditions, statutes, rules, and Department policies and procedures in accordance with the provisions of the Human Resources Code, §73.0051;

(5) incorporate all or part of the application as part of the contract; and

(6) include clearly defined goals, outputs, and measurable outcomes which directly relate to program objectives.

(c) Any modifications resulting from changes in state or federal laws and regulations or judicial interpretation of laws and regulations that occur during the contract period are automatically made part of the contract and go into effect on the effective date of the law, regulation, or court decision.

(d) The contract shall be concurrent with the current fiscal year, unless the Department approves partial year funding due to extenuating circumstances.

(e) The contract shall identify the county(ies) in which the contractor is authorized to perform early intervention services. Contractors that share counties must jointly develop a service area agreement to serve those counties. This service agreement must be approved by DARS ECI.

(1) A request to change the designated service area must be submitted to the ECI Assistant Commissioner.

(2) All requests for changes in service area assignments must be approved by the DARS ECI Assistant Commissioner before implementation.

(3) The Department will not incur additional expenses as a result of a request to change a service area when the provision of services will be at the same level for the same number of children.

§108.707.Remedial Contract Actions.

(a) The Department may impose remedial contract actions when the contractor fails to follow the terms of the contract or comply with program rules, policies, and procedures. In general, §105.1301 of this title (relating to Adverse Actions) applies.

(b) The remedial actions that the Department may impose on the contractor for noncompliance with the contract are:

(1) Adverse actions, which may be appealed; and

(2) Non-adverse actions, which may not be appealed.

§108.709.Financial Management and Recordkeeping Requirements.

(a) General. The contractor shall comply with the requirements of the contract, the provisions of §105.1013 of this title (relating to General Requirements for Contracting), §105.1101 of this title (relating to Record Requirements), and any program-specific policies related to financial management and recordkeeping requirements.

(b) Reimbursement for comprehensive service. All contractors will be required to establish third-party billing systems, determine client eligibility for all third-party reimbursement sources, and complete and submit reimbursement requests to corresponding third-party sources. Third parties include, but are not limited to, health maintenance organizations (HMOs), private insurance, Medicaid programs (Texas Health Steps and Targeted Case Management), Children's Health Insurance Program and the Children with Special Health Care Needs Program.

§108.711.Data Collection and Reporting.

(a) The contractor shall collect and report data as required by rules, the contract, and applicable instruction manuals. Data shall be submitted in the form, manner, and timeframe specified by the Department. Required data may include, but is not limited to: client data, including personally identifiable information regarding children served or referred; services received by individual eligible children; family information, including family size and income; service provider information, including information about individual employees or subcontracted employees of the contractor; agency and ECI program revenue and expenditure information; and any other information that might be necessary by the Department to perform their legally authorized functions, including the documentation of early intervention services planned and provided, billing and reimbursement functions, and other purposes.

(b) The Texas Kids Intervention Data System (TKIDS) and ECI data standards, established by the Department under Texas Human Resources Code, §73.0051(k), shall be used by contractors to submit client and services information to the Department.

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 March 9, 2009.

TRD-200900982

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: April 19, 2009

For further information, please call: (512) 424-4050

PART 12. TEXAS BOARD OF OCCUPATIONAL THERAPY EXAMINERS

CHAPTER 362. DEFINITIONS

40 TAC §362.1

The Texas Board of Occupational Therapy Examiners proposes an amendment to §362.1, concerning Definitions. The amendment will add clarifications for terms defined.

John P. Maline, Executive Director of the Executive Council of Physical Therapy and Occupational Therapy Examiners, has determined that for the first five-year period the rule is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the rule.

Mr. Maline also has determined that for each year of the first five years the rule is in effect the public benefit anticipated as a result of enforcing the rule will be clarification of terms used in the Occupational Therapy rules. There will be no effect on small businesses. There are no anticipated economic costs to persons who are required to comply with the rule as proposed.

Comments on the proposed rule may be submitted to Augusta Gelfand, OT Coordinator, Texas Board of Occupational Therapy Examiners, 333 Guadalupe Street, Suite 2-510, Austin, Texas 78701, (512) 305-6900, or through e-mail: augusta.gelfand@mail.capnet.state.tx.us.

The amendment is proposed under the Occupational Therapy Practice Act (Act), Title 3, Subtitle H, Chapter 454 of the Texas Occupations Code, which provides the Texas Board of Occupational Therapy Examiners with the authority to adopt rules consistent with this Act to carry out its duties in administering this Act.

Title 3, Subtitle H, Chapter 454 of the Texas Occupations Code is affected by this amendment.

§362.1.Definitions.

The following words, terms, and phrases, when used in this part shall have the following meaning, unless the context clearly indicates otherwise.

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

(5) Certified Occupational Therapy Assistant (COTA)--[ ~~An alternate term for a Licensed Occupational Therapy Assistant.~~] An individual who uses this term must hold a regular or provisional license to practice or represent self as an occupational therapy assistant in Texas and must practice under the general supervision of an OTR or OT [~~LOT~~ ]. An individual who uses this term is responsible for ensuring that he or she is otherwise qualified to use it.

(6) - (28) (No change.)

(29) Occupational Therapist (OT)--An individual who holds a valid regular or provisional license to practice or represent self as an Occupational Therapist in Texas. This definition includes an Occupational Therapist or one who is designated as an Occupational Therapist, Registered (OTR) [~~and a Licensed Occupational Therapist (LOT)~~].

(30) Occupational Therapist, Registered (OTR)--[~~An alternate term for a Licensed Occupational Therapist.~~] An individual who uses this term must hold a regular or provisional license to practice or represent self as an Occupational Therapist [ ~~occupational therapist~~ ] in Texas. An individual who uses this term is responsible for ensuring that he or she is otherwise qualified to use it.

(31) (No change.)

(32) Occupational Therapy Assistant (OTA)--An individual who holds a valid regular or provisional license to practice or represent self as an Occupational Therapy Assistant in Texas, and who is required to be under the continuing supervision of an OT. This definition includes an individual who is designated as a Certified Occupational Therapy Assistant (COTA) or an [~~a Licensed~~] Occupational Therapy Assistant (OTA [~~LOTA~~]).

(33) - (40) (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 March 6, 2009.

TRD-200900959

John P. Maline

Executive Director, Executive Council of Physical Therapy and Occupational Therapy Examiners

Texas Board of Occupational Therapy Examiners

Earliest possible date of adoption: April 19, 2009

For further information, please call: (512) 305-6900

CHAPTER 364. REQUIREMENTS FOR LICENSURE

40 TAC §364.4

The Texas Board of Occupational Therapy Examiners proposes an amendment to §364.4, concerning Licensure by Endorsement. The amendment will add a requirement for all Occupational Therapy licenses past and present to be verified to the board.

Mr. Maline also has determined that for each year of the first five years the rule is in effect the public benefit anticipated as a result of enforcing the rule will be verification that the applicant had no disciplinary actions against their license(s). There will be no effect on small businesses. There are anticipated economic costs to persons who are required to comply with the rule as proposed in having to have all licenses verified.

Title 3, Subtitle H, Chapter 454 of the Texas Occupations Code is affected by this amendment.

§364.4.Licensure by Endorsement.

(a) The board may issue a license by endorsement to applicants currently licensed in another state, District of Columbia or territory of the United States which has licensing requirements substantially equivalent to this state. Previous Texas licensees are not eligible for License by Endorsement. An Applicant seeking endorsement must:

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

(3) submit [~~Submit~~] verification of license(s) [~~license~~] in good standing from the state(s) in which the applicant is currently licensed, or previously held a license. This must be an original verification sent directly by the licensing board in that state, or,

(4) submit, if applying from a non-licensing state or US military and not holding a current state license, a Verification of Employment form substantiating occupational therapy employment for at least 2 years immediately preceding application for a Texas license.

(b) Provisional License:

(1) (No change.)

(2) The Board may grant a Provisional License to an applicant who has previously held a Texas license and does not meet the requirements for restoration of a license as outlined in Chapter 370 provided that such applicant has a current license in good standing in another state which has licensing requirements substantially equivalent to Texas. Upon receiving a passing score from NBCOT, a new regular license will be issued, as outlined in §364.2 of this title (relating to Initial License by Examination) [~~chapter~~]. A failing score will result in revocation of the Provisional License. The Provisional License will have a duration of 180 days. The applicant must:

(A) - (D) (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 March 6, 2009.

TRD-200900960

John P. Maline

Executive Director

Texas Board of Occupational Therapy Examiners

Earliest possible date of adoption: April 19, 2009

For further information, please call: (512) 305-6900

CHAPTER 367. CONTINUING EDUCATION

40 TAC §367.2

The Texas Board of Occupational Therapy Examiners proposes an amendment to §367.2, concerning Categories of Continuing Education. The amendment will add a new category for continuing education providing CE hours for student fieldwork supervision, which will recognize the mentoring and education of Fieldwork 1 and 2 students.

Mr. Maline also has determined that for each year of the first five years the rule is in effect the public benefit anticipated as a result of enforcing the rule will be clarification of terms used in the OT rules. There will be no effect on small businesses. There are no anticipated economic costs to persons who are required to comply with the rule as proposed.

Title 3, Subtitle H, Chapter 454 of the Texas Occupations Code is affected by this amendment.

§367.2.Categories of Continuing Education.

(a) All continuing education must comply with Type 1 or Type 2 as outlined in §367.1 of this title (relating to Continuing Education). Continuing education undertaken by a licensee for renewal shall be acceptable if it falls in one or more of the following categories.

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

(6) Fieldwork Supervision, 8 hours maximum, Type 2

(A) A licensee may earn 2 contact hours for each Level 1 student supervised. A licensee may earn 6 contact hours for each Level 2 student supervised. A licensee may earn a maximum of 8 contact hours for student supervision per renewal period.

(B) Fieldwork supervision hours may be evenly divided between licensees, not to exceed two fieldwork educators.

(D) Documentation shall include verification provided by the school to the fieldwork educator(s) with the name of the student, school, and dates of fieldwork or the signature page of the completed evaluation form. Evaluation scores and comments should be deleted or blocked out.

(7) [~~(6)~~] Any deviation from the above continuing education categories will be reviewed on a case by case basis by the Coordinator of Occupational Therapy or by the Continuing Education Committee. A request for special consideration must be submitted in writing a minimum of 60 days prior to expiration of the license.

(b) (No change.)

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

Filed with the Office of the Secretary of State on March 6, 2009.

TRD-200900966

John P. Maline

Executive Director, Executive Council of Physical Therapy and Occupational Therapy Examiners

Texas Board of Occupational Therapy Examiners

Earliest possible date of adoption: April 19, 2009

For further information, please call: (512) 305-6900

CHAPTER 370. LICENSE RENEWAL

40 TAC §370.2

The Texas Board of Occupational Therapy Examiners proposes an amendment to §370.2, concerning Late Renewal. The amendment will add the requirement that all state licenses, present and past are verified.

Title 3, Subtitle H, Chapter 454 of the Texas Occupations Code is affected by this amendment.

§370.2.Late Renewal.

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

(1) The board may issue a license to a person who was licensed in Texas, moved to another state, is currently licensed in the other state, and has been engaged in the practice of occupational therapy in the other state for the two years preceding the application if the person meets the following requirements:

(A) (No change.)

(B) submits to the board verification of the current and expired license(s) [~~license~~] in good standing from the other state(s) since leaving Texas [~~state~~];

(2) (No change.)

(d) (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 March 6, 2009.

TRD-200900964

John P. Maline

Executive Director, Executive Council of Physical Therapy and Occupational Therapy Examiners

Texas Board of Occupational Therapy Examiners

Earliest possible date of adoption: April 19, 2009

For further information, please call: (512) 305-6900

CHAPTER 373. SUPERVISION

40 TAC §373.3

The Texas Board of Occupational Therapy Examiners proposes an amendment to §373.3, concerning Supervision of a Licensed Occupational Therapy Assistant. The amendment will add clarification to supervision requirements.

Mr. Maline also has determined that for each year of the first five years the rule is in effect the public benefit anticipated as a result of enforcing the rule will be clarification in the supervision requirements. There will be no effect on small businesses. There are no anticipated economic costs to persons who are required to comply with the rule as proposed.

Title 3, Subtitle H, Chapter 454 of the Texas Occupations Code is affected by this amendment.

§373.3.Supervision of a Licensed Occupational Therapy Assistant.

(a) An occupational therapy assistant [~~A COTA/LOTA~~ ] shall provide occupational therapy services only under the supervision of [~~a licensed~~] occupational therapist(s) [~~therapist~~].

(b) Supervision of a full time employed occupational therapy assistant [~~COTA or LOTA~~] by the occupational therapist(s) [~~OTR or LOT~~] includes:

(1) A minimum of six hours a month of frequent communication between the supervising occupational therapist(s) [~~OTR(s) or LOT(s)~~] and the occupational therapy assistant [ ~~COTA or LOTA~~] by telephone, written report, email, conference etc., including review of progress of patient's/client's assigned, plus

(2) A minimum of two hours of supervision a month of face-to-face, real time interaction with theoccupational therapist(s) [~~OTR(s) or LOT(s)~~] observing the occupational therapy assistant [~~COTA or LOTA~~] providing services with patients/clients.

(3) These hours shall be documented on a [~~COTA/LOTA~~] Supervision Log for each employer. The occupational therapist(s) [ ~~OTR/LOT~~] or employer may request a copy of the [~~COTA~~] Supervision Log. The [~~COTA~~] Supervision Log is kept by the occupational therapy assistant [~~COTA/LOTA~~] and signed by occupational therapist(s) [~~an OTR/LOT~~] when supervision is given.

(4) All the occupational therapist(s), whether working full time, PRN or part-time, who delegate to the occupational therapy assistant, must be participating in the supervision time, whether on a rotational or shared basis.

(c) Occupational therapy assistants [~~Licensees~~ ] working part-time or less than a full month within a given month may pro-rate these hours, but shall document no less than four hours of supervision per month, one hour of which includes face-to-face, real time interaction by the occupational therapist(s) [ ~~OTR(s) and LOT(s)~~] observing the occupational therapy assistant [~~COTA or LOTA~~] providing services with patients/clients.

(d) Those months where the occupational therapy assistant licensee does not work as a occupational therapy assistant [ ~~COTA/LOTA~~], he or she shall write N/A in the [~~COTA~~ ] Supervision Log for that month.

(e) [~~(d)~~] Occupational therapy assistants [~~COTAs or LOTAs~~] with more than one employer must have a supervisor at each job whose name is on file with the board and must receive supervision by an occupational therapist(s) [~~OTR or LOT~~], as outlined for part-time employment in this section. Occupational therapy assistants who work for more than one employer must submit the name and license number of at least one OT at each employer, though any of the occupational therapist(s) at the employer may supervise.

(f) [~~(e)~~] The occupational therapy assistant [~~OTA~~] must include the name of the supervising OT in each patient's treatment note. This may not necessarily be the occupational therapist who wrote the Plan of Care, but an occupational therapist who is readily available to answer questions about the treatment or patient.

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 March 6, 2009.

TRD-200900965

John P. Maline

Executive Director, Executive Council of Physical Therapy and Occupational Therapy Examiners

Texas Board of Occupational Therapy Examiners

Earliest possible date of adoption: April 19, 2009

For further information, please call: (512) 305-6900