Adopted Rules Title 40

TITLE 40. SOCIAL SERVICES AND ASSISTANCE

PART 1. DEPARTMENT OF AGING AND DISABILITY SERVICES

CHAPTER 18. NURSING FACILITY ADMINISTRATORS

The Health and Human Services Commission (HHSC), on behalf of the Department of Aging and Disability Services (DADS), adopts amendments to §§18.2 - 18.4, 18.11 - 18.16, 18.31 - 18.41, and 18.51 - 18.57 in Chapter 18, Nursing Facility Administrators. The amendments to §§18.2, 18.13, 18.15, and 18.55 are adopted with changes to the proposed text published in the October 24, 2008, issue of the Texas Register (33 TexReg 8728). The amendments to §§18.3, 18.4, 18.11, 18.12, 18.14, 18.16, 18.31 - 18.41, 18.51 - 18.54, 18.56, and 18.57 are adopted without changes to the proposed text.

The amendments are adopted to update DADS rules governing nursing facility administrator (NFA) licensing, investigations, and sanctions. Licensing activities include validating initial and continuing education, providing quarterly seminars for administrator-in-training (AIT) preceptors, and taking licensure action, including issuance, renewal, denial, and revocation.

The amendments also incorporate the new fee schedule that was updated on March 1, 2006, by the National Association of Long Term Care Administrator Boards (NAB).

DADS received written comments from the Texas Healthcare Association (THCA), McLennan Community College, Midland Community College, the Texas Legal Services Center, and one individual. A summary of the comments and the responses follow.

Comment: Two commenters suggested the addition of the term "administrator of record" to §18.2 and requested clarification as to who is the administrator of record in a school-based program (the college, the program director, the school-designated preceptor or the administrator who supervises the Administrator-in-Training (AIT) in the building).

Response: The administrator of record is the person who is listed as the facility's licensed nursing facility administrator with DADS. In a non-academic setting, the preceptor and the administrator would be the same person. In a school-based program, the preceptor of the program assigns the AIT to a facility with a full-time administrator who will supervise the day-to-day activities of the AIT. In this instance, the preceptor and the administrator of record are not the same person. A definition has been added to §18.2 that states that "administrator of record" means an individual who is listed as the facility's licensed nursing facility administrator with the DADS' Licensing and Credentialing Section.

Comment: A commenter suggested either deleting the word "deliberate" from the proposed definition of misappropriation of resident property or keeping the language as it is currently stated in rule.

Response: The proposed change updates DADS rule language to be consistent with the definition used in federal regulation at 42 Code of Federal Regulations, §488.301. The rule was not changed in response to the comment.

Comment: Two commenters stated that the term "equivalent" in §18.2(11) is vague and requested further details as to who determines what is equivalent and how that determination is made.

Response: The proposed rule did not amend the definition of equivalent and did not substantively amend §18.11(a)(2). As stated in §18.2(11), "equivalent" is defined as "A level of achievement that is equal in amount and quality to completion of an educational or training program." DADS' licensing staff determines whether a course is "equivalent." DADS' staff may request a copy of the applicant's transcript and course description in order to make their decision. The rule was not changed in response to the comment.

Comment: Two comments were received regarding §18.3(c), relating to the membership of the Nursing Facility Administrators Advisory Committee (NFAAC), suggesting that an education position be added to the Committee, in an ex-officio capacity.

Response: The proposed rule did not substantively amend §18.3(c). The NFAAC is appointed by the governor. Texas Health and Safety Code, §242.303, Nursing Facility Administrators Advisory Committee, specifically details the composition of the committee. The rule was not changed in response to the comment.

Comment: A commenter stated, regarding §18.4, that embedding the fees into the actual regulations will require the NFAAC to go through the rule process to respond to future changes and suggested publishing them in a separate document via the DADS credentialing website and just referencing them in the rule.

Response: Texas Health and Safety Code, §242.304, states that the fees must be set in rule. The rule was not changed in response to the comment.

Comment: A commenter asked if the term "university" as used in §18.11 also includes all post-secondary institutions, whether two-year or four-year.

Response: The proposed rule did not substantively amend §18.11. The term "university" refers to a four-year, post-secondary institution. The rule was not changed in response to the comment.

Comment: A commenter asked who is responsible for ensuring that the degree-granting institution referred to in §18.11(a)(1) and (b) is appropriately accredited by the Texas Higher Education Coordinating Board (THECB) or the Association of Admissions and College Registrar Officers/Association of Collegiate Registrars Admissions Officers.

Response: The proposal did not substantively amend §18.11. DADS' licensing staff reviews this information and, if needed, works with a representative from THECB. The rule was not changed in response to the comment.

Comment: A commenter stated that there should be more awareness among nursing facility administrators in how to train their staff regarding the synchronization of services under the direction of the facility medical director and services under the direction of the hospice medical director. The commenter suggested adding language to §§18.11, 18.12, or 18.13, to require facility administrators to learn how to train their staff to synchronize facility services and hospice services.

Response: The domains of the NAB are used to test an administrator's knowledge and skills in all aspects of nursing facility administration, including resident care and quality of life. One of the tasks in this domain is to ensure that medical services are planned, implemented, and evaluated to meet resident medical care needs and preferences to maximize resident quality of life and quality of care. Chapter 18 refers to the licensure requirements of nursing facility administrators and does not include requirements relating to how an administrator trains the staff. Rules in Chapter 19 address a facility's responsibility to coordinate hospice services. The rule was not changed in response to the comment.

Comment: A commenter stated that the proposed rules do not list the domains of the NAB.

Response: The NAB domains are listed in §18.11(a)(2), which the proposed rules did not substantively amend. The rule was not changed in response to the comment.

Comment: A commenter asked how the determination is made in §18.11(a)(2) to allow for the equivalence of the 15 semester credit hours, and who makes this determination.

Comment: A commenter requested clarification on information in §18.11(a)(2) relating to the five current areas used by the NAB stating that the five domains were last changed in 1999 and may be changed again in the future. The commenter also noted that the current AIT Internship Training Manual (2004) does not follow the same taxonomy, but lists seven areas of learning, including specific requirements for training in "Ethics." The commenter stated that there is a need for consistency across all of these related documents with an eye to accommodate future modification.

Response: The proposed rule did not substantively amend §18.11. The subjects in the AIT Internship Training Manual are intended to cover all areas of nursing facility management and the seven areas listed in the manual cover each of the NAB domains. If the NAB officially changes its domains, the appropriate changes to Chapter 18 would be made to include any updated information. The rule was not changed in response to the comment.

Comment: A commenter stated, regarding §18.11, that the NAB domains do not specifically address the licensure and Medicaid requirements for Texas, yet one of the required tests is focused on this document. Since these items are the focus of the state exam, there should be competency requirements in the rules in the rules relating specifically to Texas Medicaid requirements.

Response: The proposal did not substantively amend §18.11. While the NAB domains do not address individual state licensure requirements, regulatory management is a part of the AIT training and includes such subjects as licensing standards; federal, state and city regulations; deficiencies; compliance; and Medicaid services. The rule was not changed in response to the comment.

Comment: A commenter asked, if the AIT is employed in the facility where the internship occurs, how many hours can be dedicated to the AIT and how many to employment activities?

Response: The AIT would follow the required procedures listed in §18.12 or §18.13, which would mean completing either 1,000 hours or 500 hours of the internship. An AIT can train no more than 40 hours a week. The rule was not changed in response to the comment.

Comment: A commenter requested clarification as to what parts, if any, of the prior notification requirements in §18.12 apply to college-based programs.

Response: The proposed rule did not substantively change this requirement. DADS' prior notification requirement forms do not apply to the college-based programs, as the information documented on the forms will be contained in the applicant's college transcripts, which are required with the submission of the Application for Nursing Facility Administrator License form. The rule was not changed in response to the comment.

Comment: A commenter stated that the proposed language in §18.12(6)(B) is redundant since the current AIT Final Report requires the preceptor's signature.

Response: In a non-academic setting, the preceptor is also the administrator of record. If the internship is done in an academic setting, the preceptor is not the administrator of record. This language is added as an additional verification that the AIT performed the internship at the facility. The rule was not changed in response to the comment.

Comment: Two commenters asked if the 500-hour internship requirements in §18.13(a)(1) - (2) will be subject to the same proportionality as the requirements in §18.12(4) relating to minimum amount of internship hours completed during traditional business hours.

Response: For consistency, §18.13(b) has been changed to state that a minimum of 250 hours of the 500-hour internship referred to in §18.13(a)(1) - (2) be done during traditional business hours.

Comment: A commenter asked how and by whom it will be validated that the alternate experiences identified in §18.13(a)(1) - (2) appropriately address the NAB domains.

Response: The proposed rule did not substantively change §18.13. DADS' licensing staff reviews this documentation and determine if the alternate education and experience meet the appropriate requirements. DADS' licensing staff may request a copy of the applicant's transcript and course description or further information regarding the management experience listed on the application in order to make the decision. The rule was not changed in response to the comment.

Comment: A commenter asked if the alternate education experiences in §18.13 are required to show an appropriate exposure to the Texas regulations and stated that advanced course work from out of state would almost certainly not address the licensure and Medicaid rules unique to Texas.

Response: To become an administrator, the applicant must pass both the NAB and the state exam. Advance coursework from out-of-state, if approved as a course of study, would probably not address the licensure and Medicaid rules unique to Texas. It is the responsibility of the applicant to be knowledgeable about the Texas regulations. The rule was not changed in response to the comment.

Comment: Concerning §18.13, a commenter asked how specific knowledge of funding sources related to long term care will be validated within the alternate learning experience.

Response: DADS evaluates alternative learning for inclusion of the five domains of the NAB. One of the domains is financial, which includes Medicare, Medicaid, and managed care. DADS expects a transcript and course descriptions to show the financial domain was included in coursework. DADS can request more information if the transcript or course description is not clear. In addition, the applicant must know the domains to pass the test.

Comment: A commenter asked, regarding §18.14, for clarification as to how the determination of "adequate training" will be made and if such information will be made available to the college-based internship programs for use in screening administrators who might serve as field supervisors.

Response: At the end of an internship, the AIT is required to complete a "Preceptor Performance Report" (Page 31 of the AIT Manual). On this report, the AIT determines if the AIT received "adequate training." The AIT is required to give a copy of the report to the preceptor and send the original to DADS. The college may obtain or request a copy of the report from the preceptor. The rule was not changed in response to the comment.

Comment: A commenter stated that the proposed language in §18.14(a)(4) incorporates statements from the AIT Internship manual into the regulations, thereby making the AIT Internship manual subject to the rule making process.

Response: Section 18.14(a)(4) states that the individual seeking to sponsor an AIT must meet the eligibility requirements in the State of Texas AIT Internship manual. The requirements relating to preceptor qualifications and responsibilities are listed for both non-academic and academic settings. This does not make the AIT manual subject to the rule making process. The rule was not changed in response to the comment.

Comment: Concerning §18.15(a)(5), a commenter asked how and who will validate that the transcript that is equivalent to the 15 semester credit hours in long-term care administration include the five domains of the NAB listed in §18.11 of the subchapter.

Response: The proposed rule did not substantively change §18.15(a)(5). DADS' licensing staff reviews this documentation and determines if the alternate education and experience meet the appropriate requirements. DADS' licensing staff may request a copy of the applicant's transcript and course description or further information about the management experience listed on the application in order to make the decision. The rule was not changed in response to the comment.

Comment: Concerning §18.16, a commenter asked if the state exam also references information in Chapter 18 and, if not, whether any of the rules that govern the licensure of the person as an administrator will be subject to assessment.

Response: The rules that govern the licensure of the person as an administrator are not necessarily part of the state examination questions. The Professional Credentialing Enforcement Unit of DADS will assess administrator compliance with the rules upon: (1) receipt of a complaint alleging violation of the rules by an administrator; or (2) referral by DADS' surveyors reporting suspected violation of rules or findings of substandard quality of care in a facility. The rule was not changed in response to the comment.

Comment: A commenter recommended expanding §18.34 to allow an administrator who exceeds 40 hours of continuing education units (CEUs) in the two-year licensing period to roll over no more than six hours of CEUs to the next licensing period. Ethics should be excluded from being rolled over.

Response: At this time, DADS' database cannot track carryover hours. However, the agency will consider this recommendation in the future. The rule was not changed in response to the comment.

Comment: A commenter suggested the creation of a new provisional license for nursing facility administrators in rural areas, whereupon a provisional license would be issued to candidates who hold a bachelors degree and are employed by a nursing facility located outside a Metropolitan Statistical Area. Within 18 months, the administrator under this rural provisional licensure rule should: (1) complete 15 semester credit hours on Long Term Care Administration that includes the course work that encompasses the five domains of the NAB; (2) complete a 1,000 hour preceptor supervision at the same facility, with the exception of facility closure. The preceptor would not be required to work full time at the nursing facility but would be required to work no fewer than 16 hours per month until the 1,000 hours are met; and (3) take and pass the NAB exam and the state licensure exam. The 18-month provisional license could not be renewed.

Response: DADS currently allows for a provisional license based on Texas Health and Safety Code, §242.309, independent of the location of a facility. Because Texas Health and Safety Code, §242.309, does not allow for the creation of a separate type of provisional license, the rule was not changed in response to the comment.

Comment: A comment recommended expanding the rules under §§18.31-18.41 to allow an administrator to be employed by two nursing facilities (not to exceed 120 beds total) that are within a 50-mile radius of each other.

Response: The current rules in Chapter 18 govern the licensure requirements of nursing facility administrators and do not include requirements relating to the duties of the administrator in a specific facility. An administrator's duties in a specific facility are addressed in Chapter 19. Texas Health and Safety Code, §242.015, requires an administrator to work at least 40 hours per week in the facility on administrative duties. This is also required in Chapter 19. While DADS does not specifically have a rule that states that an administrator cannot work in two facilities at the same time, given the 40 hour per week requirement, it would not be feasible for an administrator to work in two facilities at the same time. The rule was not changed in response to the comment.

Comment: Two commenters requested an explanation of why §18.35(a)(4)(C) limits the college credit courses for continuing education to "upper division" courses and suggested that the appropriateness of a college course should be determined by how well the content matches the domains of the NAB, rather than on the arbitrary academic level to which it is assigned. Another commenter suggested removing proposed language in §18.35(a)(4)(C) and replace it with "completes one three-semester hour course from an accredited institution of higher learning."

Response: The proposed rule did not substantively amend §18.35(a). DADS requires that the course taken or taught for continuing education purposes be an "upper division" course at a post-secondary institution of higher education accredited by an association recognized by the Texas Higher Education Coordinating Board. DADS waives, at a maximum, 20 of the 40 clock hours of continuing education to a licensee who completes one three-semester-hour upper-division course taken at a post-secondary institution of higher education. Because of this, DADS requires that the coursework be "upper division," which traditionally requires more extensive learning or knowledge of the subject. The rule was not changed in response to the comment.

Comment: The proposal in §18.35(b) to increase the self-study continuing education hours from six to 34 is very commendable as is the extension for military personnel in §18.35(f)(1).

Response: The agency acknowledges the comment.

Comment: A commenter expressed opposition to the proposed language in §§18.54, 18.55 and 18.57 that clarifies the imposition of a sanction is discretionary rather than mandatory.

Response: Texas Health and Safety Code §§242.313, 242.314 and 242.315 state that DADS may impose a sanction. The proposed language reflects the law that a sanction is discretionary rather than mandatory. The rule was not changed in response to the comment.

Comment: A commenter suggested adding language to §18.55(a)(17) to state that "A licensee must not allow or direct nursing facility employees, contractors, or others to act or fail to act in a manner that results in the harassment or intimidation of any person for purposes of coercing that person to use the services or equipment of a particular health agency or facility."

Response: The adoption adds language in §18.55(a)(17) to state "A licensee must not allow an employee's, a contractor's or another person's action or inaction to result in harassment or intimidation of any person for purposes of coercing that person to use the services or equipment of a particular health agency or facility".

Comment: A commenter requested clarification of the intent of §18.55(a)(27).

Response: The rule prohibits a licensee from offering or giving DADS staff a gift, loan, or other benefit that might influence or appear to influence the staff's performance of duties.

Comment: A commenter requested that proposed language from §18.57(c) be changed from "civil penalties may result from a referral to the Office of Attorney General" to "civil penalties will result from a referral to Attorney General."

Response: Texas Health and Safety Code, §242.319, relates to civil penalties and the referral to the Attorney General's Office. DADS' recourse in this situation is to make the referral to the Attorney General's Office. The attorney general would bring an action to recover a civil penalty. Since recovering a civil penalty depends upon the outcome of a lawsuit, DADS cannot say that the referral will definitively result in the civil penalty. The rule was not changed in response to the comment.

SUBCHAPTER A. GENERAL INFORMATION

40 TAC §§18.2 - 18.4

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

§18.2.Definitions.

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

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

(2) Administrative law judge (ALJ)--A State Office of Administrative Hearings (SOAH) attorney who conducts formal hearings for the Department of Aging and Disability Services.

(3) Administrator--A licensed nursing facility administrator.

(4) Administrator-in-training (AIT)--A person undergoing a minimum 1,000-hour internship under a DADS-approved certified preceptor.

(5) Administrator of Record--The individual who is listed as the facility's licensed nursing facility administrator with the DADS' Licensing and Credentialing Section.

(6) Applicant--A person applying for a Texas nursing facility administrator license.

(7) Application--The notarized DADS application for licensure as a nursing facility administrator, as well as all required forms, fees, and supporting documentation.

(8) Complaint--An allegation that a licensed nursing facility administrator violated one or more of the licensure rules or statutory requirements.

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

(10) Deficiency--Violation of a federal participation requirement in a nursing facility.

(11) Domains of the NAB--The five categories for education and continuing education of the National Association of Long Term Care Administrator Boards, which are resident care and quality of life; human resources; finance; physical environment and atmosphere; and leadership and management.

(12) Equivalent--A level of achievement that is equal in amount and quality to completion of an educational or training program.

(13) Formal hearing--A hearing held by SOAH to adjudicate a sanction taken by DADS against a licensed nursing facility administrator.

(14) Good standing--The licensure status of a nursing facility administrator who is in compliance with the rules in this chapter and, if applicable, the terms of any sanction imposed by DADS.

(15) Informal review--The opportunity for a licensee to dispute the allegations made by DADS. The informal review includes the opportunity to show compliance.

(16) Internship--The 1,000-hour training period in a nursing facility for an AIT.

(17) License--A nursing facility administrator license or provisional license.

(18) Licensee--A person licensed by DADS as a nursing facility administrator.

(19) Misappropriation of resident property--The deliberate misplacement, exploitation, or wrongful temporary or permanent use of a nursing facility resident's belongings or money without the resident's consent.

(20) NAB--The National Association of Long Term Care Administrator Boards, which is composed of state boards or agencies responsible for the licensure of nursing facility administrators.

(21) NAB examination--The national examination developed by NAB that applicants must pass in combination with the state licensure examination to be issued a license to practice nursing facility administration in Texas.

(22) NCERS--The National Continuing Education Review Service, which is the part of NAB that approves and monitors continuing education activities for nursing facility administrators.

(23) Neglect--A deprivation of life's necessities of food, water, or shelter; or a failure of an individual to provide services, treatment, or care to a nursing facility resident that causes or could cause mental or physical injury, harm, or death to the nursing facility resident.

(24) Nursing facility--An institution or facility licensed by DADS as a nursing home, nursing facility, or skilled nursing facility.

(25) Nursing facility administrator--A person who is licensed to engage in the practice of nursing facility administration, regardless of whether the person has ownership interest in the facility.

(26) Nursing Facility Administrators Advisory Committee (NFAAC)--The nine-member governor-appointed advisory committee that makes recommendations to DADS about the practice and regulation of nursing facility administration.

(27) Opportunity to show compliance--An informal meeting between DADS and a licensee that allows the licensee an opportunity to show compliance with the requirements of law for the retention of the license. The opportunity to show compliance is part of an informal review.

(28) Preceptor--A licensed nursing facility administrator certified by DADS to provide supervision to an AIT.

(29) PES--Professional examination services. The testing agency that administers the NAB and state examinations to applicants seeking licensure as nursing facility administrators.

(30) Referral--A recommendation made by Regulatory Services Division staff to investigate an administrator's compliance with licensure requirements when deficiencies or substandard quality of care deficiencies are found in a nursing facility, as required by Title 42 Code of Federal Regulations.

(31) Regulatory Services Division--The division of DADS responsible for long term care regulation, including determining nursing facility compliance with licensure and certification requirements and licensing nursing facility administrators.

(32) Sanctions--Any adverse licensure actions DADS imposes against a licensee, including letter of reprimand, suspension, revocation, denial of license, and monetary penalties.

(33) Self-study course--A NAB-approved education course that an individual pursues independently to meet continuing education requirements for license renewal.

(34) State examination--The state licensure examination that applicants must pass, in combination with the NAB examination, to be issued a license to practice nursing facility administration in Texas. This examination covers the nursing facility requirements found in Chapter 19 of this title (relating to Nursing Facility Requirements for Licensure and Medicaid Certification).

(35) State of Texas Administrator-In-Training Internship Manual--The DADS program guide used by an AIT and preceptor during the AIT's internship for nursing facility administrator licensure.

(36) Substandard quality of care--Any deficiency in Resident Behavior and Facility Practices, Quality of Life, or Quality of Care that is immediate jeopardy to nursing facility resident health or safety; or a pattern of widespread actual harm that is not immediate jeopardy; or a widespread potential for more than minimal harm that is not immediate jeopardy, with no actual harm.

(37) Survey--A resident-focused complaint/incident investigation or annual licensure or certification inspection of a nursing facility by DADS.

(38) Traditional business hours--Monday through Friday from 8:00 a.m. until 5:00 p.m.

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

Filed with the Office of the Secretary of State on April 24, 2009.

TRD-200901538

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Effective date: June 1, 2009

Proposal publication date: October 24, 2008

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

SUBCHAPTER B. REQUIREMENTS FOR LICENSURE

40 TAC §§18.11 - 18.16

§18.13.Alternate Education, Training, and Experience.

(a) Applicants not meeting the academic or internship requirements for licensure in §18.11 of this subchapter (relating to Academic Requirements) and §18.12 of this subchapter (relating to Internship Requirements), are eligible for licensure if they present evidence satisfactory to DADS of the following alternate education and experience:

(1) a master's degree in health administration, health services administration, health care administration, or nursing, which includes coursework that encompasses the five domains of the NAB, with one year of management experience and completion of a 500-hour internship; or

(2) a baccalaureate degree in health administration, health services administration, health care administration, or nursing, which includes coursework that encompasses the five domains of the NAB, with three years of management experience and completion of a 500-hour internship.

(b) A minimum of 250 hours of the 500-hour internship referred to in subsection (a) of this section must be done during traditional business hours.

(c) Management experience is defined as full-time employment as a department head or licensed professional supervising two or more employees in a nursing facility or skilled nursing hospital unit.

§18.15.Application Requirements.

(a) Applicants seeking licensure must submit the following to DADS:

(1) a complete and notarized Nursing Facility Administrator's Application for Licensure Form;

(2) $100 application fee;

(3) a Texas Department of Public Safety (DPS) Texas criminal conviction report and fingerprint card;

(4) an official transcript reflecting a baccalaureate degree from a university or health science center accredited by an association recognized by the Texas Higher Education Coordinating Board;

(5) if not a part of the transcript reflecting a baccalaureate degree, another transcript reflecting 15 semester credit hours in long term care administration or its equivalent that include the five domains of the NAB as listed in §18.11 of this subchapter (relating to Academic Requirements), or alternate education, training and experience listed in §18.13 of this subchapter (relating to Alternate Education, Training, and Experience); and

(6) proof of completing the minimum applicable internship that meets the internship requirements in §18.12 of this subchapter (relating to Internship Requirements).

(b) An application is valid for one year from the date the application fee is received.

(c) Applicants not meeting the requirements for licensure and examination within one year after DADS receives their application must resubmit the following to DADS:

(1) a notarized Nursing Facility Administrator's Application for Licensure form;

(2) $100 application fee; and

(3) a DPS Texas criminal conviction report and fingerprint card.

(d) DADS is not responsible for applications, forms, notices, and correspondence unless they are received by DADS.

(e) DADS is not responsible for mail it sends to a licensee or applicant if the licensee's or applicant's current address was not reported in writing to DADS.

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

Filed with the Office of the Secretary of State on April 24, 2009.

TRD-200901539

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Effective date: June 1, 2009

Proposal publication date: October 24, 2008

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

SUBCHAPTER C. LICENSES

40 TAC §§18.31 - 18.41

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

Filed with the Office of the Secretary of State on April 24, 2009.

TRD-200901540

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Effective date: June 1, 2009

Proposal publication date: October 24, 2008

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

SUBCHAPTER D. REFERRALS, COMPLAINT PROCEDURES, AND SANCTIONS

40 TAC §§18.51 - 18.57

§18.55.Violations of Standards of Conduct.

(a) DADS may impose a sanction listed in §18.57 of this subchapter (relating to Schedule of Sanctions) against a licensee for violations of the following nursing facility administrator Standards of Conduct:

(1) A licensee must employ sufficient staff to adequately meet the needs of nursing facility residents as determined by care outcomes.

(2) A licensee must ensure that sufficient resources are present to provide adequate nutrition, medications, and treatments to nursing facility residents in accordance with physician orders as determined by care outcomes.

(3) A licensee must promote and protect the rights of nursing facility residents and ensure that employees, contractors, and others respect the rights of residents.

(4) A licensee must ensure that nursing facility residents remain free of chemical and physical restraints unless required by a physician's order to protect a nursing facility resident's health and safety.

(5) A licensee must report and direct nursing facility staff to report to the appropriate government agency any suspected case of abuse, neglect, or misappropriation of resident property as defined in §18.2 of this chapter (relating to Definitions).

(6) A licensee must ensure that the nursing facility is physically maintained in a manner that protects the health and safety of the residents and the public.

(7) A licensee must notify and direct employees to notify an appropriate government agency of any suspected cases of criminal activity as defined by state and federal laws.

(8) A licensee must post in the nursing facility where employed the notice provided by DADS that gives the address and telephone number for reporting complaints against an administrator. The notice must be posted in a conspicuous place and in clearly legible type.

(9) A licensee must not knowingly or through negligence commit, direct, or allow actions that result or could result in inadequate care, harm, or injury to a nursing facility resident.

(10) A licensee must not knowingly or through negligence allow nursing facility employees to harm nursing facility residents by coercion, threat, intimidation, solicitation, harassment, theft of personal property, or cruelty.

(11) A licensee must not knowingly or through negligence allow or direct employees to contradict or alter in any manner the orders of a physician regarding a nursing facility resident's medical or therapeutic care.

(12) A licensee must not knowingly commit or through negligence allow another individual to commit an act of abuse, neglect, or misappropriation of resident property as defined in §18.2 of this chapter.

(13) A licensee must not permit another individual to use his or her license or allow a nursing facility to falsely post his or her license.

(14) A licensee must not advertise or knowingly participate in the advertisement of nursing facility services in a manner that is fraudulent, false, deceptive, or misleading in form or content.

(15) A licensee must not knowingly allow, aid, or abet a violation by another licensed nursing facility administrator of the Texas Health and Safety Code, Chapter 242, Subchapter I, or the agency's rules adopted under that subchapter and must report such violations to DADS.

(16) A licensee must not make or allow employees, contractors, or volunteers to make misrepresentations or fraudulent statements about the operation of a nursing facility.

(17) A licensee must not allow an employee's, a contractor's, or another person's action or inaction to result in harassment or intimidation of any person for purposes of coercing that person to use the services or equipment of a particular health agency or facility.

(18) A licensee must not falsely bill for goods or services or allow another person to bill for goods or services other than those that have actually been rendered.

(19) A licensee must not make or file false reports or allow an employee, contractor, or volunteer to make or file a report that the licensee knows to be false.

(20) A licensee must not intentionally fail to file a report or record required by state or federal law, impede or obstruct such filings, or induce another person to impede or obstruct such filings.

(21) A licensee must not use or knowingly allow employees or others to use alcohol, narcotics, or other drugs in a manner that interferes with the performance of the administrator's or other person's duties.

(22) A licensee must not knowingly or through negligence violate any confidentiality provisions as prescribed by state or federal law concerning a nursing facility resident.

(23) A licensee must not interfere or impede an investigation by withholding or misrepresenting fact to DADS representatives, or by using threats or harassment against any person involved or participating in the investigation.

(24) A licensee must not display a license issued by DADS that is reproduced, altered, expired, suspended, or revoked.

(25) A licensee must not, knowingly or through negligence, allow employees or other individuals to mismanage a resident's personal funds deposited with the nursing facility.

(26) A licensee must not harass or intimidate employees of DADS, other government agencies, or their representatives concerning the administration of the nursing facility.

(27) A licensee must not offer or give any gift, loan, or other benefit to a person working for DADS unless the benefit is offered or given on account of kinship or a personal relationship independent of the official status of the person working for DADS.

(b) Negligence, as referenced in the Standards of Conduct in subsection (a) of this section, means the failure of a licensee to use such care as a reasonably prudent and careful licensee would use in similar circumstances, or failure to act as a reasonably prudent licensee would in similar circumstances.

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

Filed with the Office of the Secretary of State on April 24, 2009.

TRD-200901541

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Effective date: June 1, 2009

Proposal publication date: October 24, 2008

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

CHAPTER 47. CONTRACTING TO PROVIDE PRIMARY HOME CARE

The Health and Human Services Commission (HHSC), on behalf of the Department of Aging and Disability Services (DADS), adopts amendments to §§47.1, 47.3, 47.11, 47.21, 47.23, 47.25, 47.41, 47.43, 47.45, 47.47, 47.49, 47.61, 47.65, 47.67, 47.69, 47.71, 47.73, 47.81, 47.83, 47.87, and 47.89; new §§47.57, 47.59, 47.72, 47.75, and 47.91; and the repeal of 47.5 in Chapter 47, Contracting to Provide Primary Home Care. The amendments to §§47.1, 47.3, 47.45, 47.47, 47.49, 47.61, 47.65, 47.67, 47.71, and 47.73, and new 47.57, are adopted with changes to the proposed text published in the October 24, 2008, issue of the Texas Register (33 TexReg 8738). The amendments to §§47.11, 47.21, 47.23, 47.25, 47.41, 47.43, 47.69, 47.81, 47.83, 47.87, and 47.89; new §§47.59, 47.72, 47.75, and 47.91; and the repeal of §47.5 are adopted without changes to the proposed text.

Elsewhere in this issue, a proposed amendment to §47.63, the proposed repeal of §47.85, and proposed new §§47.101, 47.103, 47.105, 47.107, 47.109, 47.111, 47.113, 47.115, 47.117, and 47.119, which were published in the October 24, 2008, issue of the Texas Register, are withdrawn.

The amendments and new sections are adopted to improve controls for program access, service initiation, and service utilization in the Primary Home Care (PHC) Program. The rules also describe the process for expedited referrals and amend contracting requirements for providers with a contract assignment.

The new rules describe utilization review procedures required by the 2008-09 General Appropriations Act (Article II, Department of Aging and Disability Services, Rider 45, House Bill 1, 80th Legislature, Regular Session, 2007).

DADS received written comments from the Texas Association for Home Care (TAHC). A summary of the comments and the responses follow.

Comment: The commenter stated that it understands the change in language from the term "client" to "individual," but suggests that this change will necessitate a corresponding DADS licensure rule change to align the terms. In addition, PHC providers have used the term "client" in documentation ranging from policies to provider forms. DADS needs to ensure that PHC providers will not be penalized for using the term "client".

Response: The agency responds that providers will not be penalized for using the term "client." The rule was not changed in response to the comment.

Comment: Concerning §47.1, the commenter suggested that the rule should state that the chapter establishes the requirements for a provider contracting to provide "community-based" services, because services are provided at locations in addition to the individual's home.

Response: The agency agrees with the comment and has made the suggested change.

Comment: Concerning §47.3, the commenter requested a definition of "minimum number of days" as used in §47.45(a)(2)(C)(iii)(I) to clarify DADS' expectation regarding the service plan. The commenter also requested that the definition be very clear on what a minimum number of days means in relation to the development of the service plan between the provider and the client.

Response: The agency has deleted the phrase "minimum number of days" from §47.45; therefore, there is no need for a definition.

Comment: Concerning §47.3(31), the commenter requested that the definition of "service schedule" should be "A schedule for delivering attendant services containing the elements described in §47.45(a)(2)(C)(iii) of this chapter that is agreed upon and signed by the individual and the provider."

Response: The agency agrees to amend the definition of "service schedule" to "A schedule for delivering attendant services containing the elements described in §47.45(a)(2)(C)(iii) of this chapter." It is redundant to state in the definition that the service schedule must be signed by the individual and the provider because §47.45(a)(2) requires the individual and the provider to sign the service delivery plan.

Comment: Concerning §47.45(a)(2)(C)(iii)(I), the commenter stated that the paragraph does not allow for any flexibility in the development of the service plan, which the commenter stated is necessary to meet a client's needs. This may mean a service plan agreed upon by the client and the provider to ensure the client has a specific attendant or to accommodate changes in provider's ability to meet the client's needs. The commenter requested that the rule allow a client and provider to agree on the service plan even if it differs from the DADS' authorization, if the client's needs for health and safety are being met.

Response: The agency agrees that the requirement that the case manager determine a "minimum number of days" prevents flexibility in the service plan and has deleted the provision at §47.45(a)(2)(C)(iii)(I).

Comment: Concerning §47.45(b), the commenter recommended deleting the subsection and adding a requirement that any service delivery plan changes be documented using the same process as the ongoing service delivery plan change procedure outlined in §47.67, whether a change in task, increase in hours, or termination.

Response: The agency responds that §47.45(b) relates to changes in an initial service delivery plan and the process to follow if the service delivery plan agreed to between the provider and individual differs from the case manager's authorized hours or tasks, which is different from an on-going, temporary, or immediate service delivery plan change, addressed by §47.67. The rule language was not changed in response to the comment.

Comment: Concerning §47.45(a)(3)(B)(iii), which states that a provider must send the complete practitioner's statement to DADS within five business days of service initiation, the commenter requested the timeframe be changed to at least seven days. The current PHC rules allow 14 days.

Response: The agency agrees and has changed the required timeframe to seven working days. "Business days" has been changed to "working days" because that is the defined term in §47.3(34).

Comment: Concerning §47.45(a)(3)(B)(v), the commenter requested this section read, "the signature date or the date received by the agency must be on or before the negotiated start date."

Response: The agency disagrees with this comment and believes that a complete practitioner's statement must be signed and dated by the practitioner before services are provided. The rule language was changed, but only to clarify the reference is to the practitioner's signature and to use the term "start-of-care date" consistently.

Comment: Concerning §47.45(d)(1), which states that a provider may delay meeting the due dates only for reasons beyond its control such as natural or other disasters, the commenter noted that the provider must continue efforts to complete pre-initiation activities and set a date, if possible, for completion of pre-initiation activities. The commenter further stated that (1) there may be many reasons for delay that are beyond an agency's control that do not include natural or other disasters, so this language is unnecessary and should be removed; and (2) the section does not include any client-driven reasons for delay. The commenter suggested that the rule state in §47.45(d)(2) that the provider must document "the reason for the delay, which must be beyond the agency's control."

Response: The agency agrees and has changed §47.45(d)(2) to require that the provider must document "the reason for the delay, which must be beyond the agency's control."

Comment: Concerning §47.47(a), which states that this section does not apply to family care services, the commenter recommended adding language to state that "or transfers of individuals in the PHC program" to clarify that the practitioner's statement is not needed when a client transfers from one provider to another. In addition, the commenter requested that language be added "or transfer from the Star+Plus program to PHC or CAS."

Response: The agency agrees to make the change concerning transfers of individuals in the PHC program. The agency will not add language related to the Star+Plus program, since Star+Plus does not require a practitioner's statement, which is a requirement in PHC.

Comment: Concerning §47.49, the commenter stated that it supports the difference in interdisciplinary timeframes based on the reason for the IDT, but wishes to stress the importance of having a representative from DADS for problem resolution.

Response: The agency appreciates the support and notes the commenter's concern. The rule was not changed in response to the comment.

Comment: Concerning §47.49(b)(3)(B), the commenter stated that this provision has led to DADS case managers instructing providers that they must retain a client that the agency has discharged for cause. The commenter stated that, if the client was dismissed for cause, this is not a justifiable action on the part of the case manager. The commenter requests that this provision be deleted or amended.

Response: The agency agrees that this provision is unnecessary and has deleted the provision.

Comment: Concerning §47.61, the commenter expressed support for the simplification in the notification process.

Response: The agency appreciates the support. The rule was not changed in response to the comment.

Comment: Concerning §47.61(c), which states that a provider may delay service initiation only for reasons beyond its control, such as natural or other disasters, that are not directly caused by the provider, the commenter stated that there may be many reasons beyond a provider's control that do not include natural or other disasters, and requests that the rule simply require that the reason for the delay be beyond the provider's control.

Response: The agency agrees and has changed §47.61(c) to require that the provider must document "the reason for the delay, which must be beyond the agency's control."

Comment: Concerning §47.65, the commenter requested that providers be allowed to use either the term "client" or "individual" on documentation, as HCSSA licensure terminology uses "client".

Response: The agency responds that providers will not be penalized for using the term "client." The rule language was not changed in response to the comment.

Comment: Concerning §47.65(d), the commenter stated that it does not address when there are two attendants present, and new attendant orientation is completed for one attendant and a supervisory visit is conducted for the other. In such a situation, the commenter stated that marking "not applicable" is inappropriate for the supervisory visit.

Response: The agency agrees and has deleted the last sentence of §47.65(d). This situation will be addressed in the contract monitoring tool instructions.

Comment: Concerning §47.67, the commenter requested that the section heading be changed to "Increase in Hours, Change in Task or Termination," because it would capture the service plan delivery changes outlined in the section, as well as the service plan delivery variances proposed in §47.45(b). The commenter stated that the suggested caption would clarify that a change in task, whether it requires an increase in hours or not, must be reported to the DADS Case Manager for a service authorization change.

Response: The agency responds that it believes the text of the rule is clear and changing the heading would not change the meaning of the section. The rule was not changed in response to comment.

Comment: Concerning §47.71, the commenter stated that, although the proposed language refers to a client permanently moving to an area where a provider does not contract to deliver services, the rule should address when a client temporarily leaves the provider's contracted service delivery area.

Response: The agency agrees with the comment and has made the suggested change.

Comment: Concerning §47.71(b), the commenter requested the rule allow a provider to suspend services if the individual fails to comply with the individual service plan or program requirements.

Response: The agency does not agree to make the change. The situation in which an individual fails to comply is addressed in the IDT process. The rule was not changed in response to the comment.

Comment: Concerning §47.71(c), the commenter requested adding language to read, "The provider agency must notify the case manager of any suspension by the next working day or the next working day after the date of awareness."

Response: The agency does not agree to make this change, but has changed the rule to clarify that the provider must notify the case manager the first working after the day a provider has suspended services.

Comment: Concerning §47.71, the commenter stated that the provider is not responsible for attempting to resolve a suspension under subsections (a)(7) or (b)(1) of this section, as that responsibility is DADS', as the administering Medicaid agency.

Response: The agency agrees with the comment and has changed the rule to require "a written explanation of the circumstances surrounding the suspension."

Comment: Concerning §47.71(e), the commenter recommended stating that the subsection does not apply to (a)(7) or (b)(1) of this section.

Response: The agency agrees and has added language to §47.71(e) to state that "This subsection does not apply to (a)(7) or (b)(1) of this section."

In addition, five minor editorial changes were made to the text of §§47.3, 47.45, 47.57, and 47.67 to clarify and improve the accuracy of the sections.

SUBCHAPTER A. INTRODUCTION

40 TAC §47.1, §47.3

§47.1.Purpose.

(a) This chapter establishes the requirements for a provider contracting to provide community-based services to an individual through the DADS PHC Program. PHC Program services may be provided through a home and community support services agency, the service responsibility option (SRO), or the consumer directed services (CDS) option of service delivery. The SRO is described in Chapter 43 of this title (relating to Service Responsibility Option) and the CDS option is described in Chapter 41 of this title (relating to Consumer Directed Services Option).

(b) The requirements in this chapter apply to PHC services, FC services, and CAS, unless otherwise specified in the text.

§47.3.Definitions.

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

(1) ADL--Activity of daily living. An activity that is essential to daily self care, including bathing, dressing, grooming, routine hair and skin care, meal preparation, feeding, exercising, toileting, transferring, and ambulation. An ADL does not include a service that must be provided or supervised by licensed personnel.

(2) Attendant--A person who provides authorized tasks to an individual.

(3) CAS--Community attendant services. A service under the PHC Program providing in-home attendant services to individuals with an approved medical need for assistance with personal care tasks. CAS (formerly known as §1929(b) or frail elderly) are provided under Title XIX of the federal Social Security Act (relating to Grants to States for Medical Assistance Programs) at 42 U.S.C. §1396t (relating to Home and Community Care for Functionally Disabled Elderly Individuals).

(4) Case manager--A DADS employee who is responsible for case management activities. Activities include eligibility determination, individual registration, assessment and reassessment of an individual's needs, service delivery plan development, and intercession on the individual's behalf.

(5) Contract--The formal, written agreement between DADS and a provider to provide PHC Program services to an individual eligible under this chapter in exchange for reimbursement.

(6) Contract manager--A DADS employee who is responsible for the overall management of the contract with the provider.

(7) Days--Any reference to days means calendar days, unless otherwise specified in the text. Calendar days include weekends and holidays.

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

(9) Expedited referral--An oral request from a case manager to a provider when the case manager determines that an individual's needs require that pre-initiation activities be completed in less than 14 days. The completion date is negotiated between the case manager and provider.

(10) Facsimile notice--written information sent to a designated number via facsimile.

(11) FC services--Family Care services. A service under the PHC Program providing in-home attendant services to eligible adults. FC services are provided under Title XX of the federal Social Security Act (relating to Block Grants to States for Social Services) at 42 U.S.C. §1397 et seq.

(12) Functional limitation--An individual's requirement for assistance with one or more ADLs caused by a physical limitation or disability.

(13) Imminent danger--An immediate, real threat to a person's safety.

(14) Individual--A person who is enrolled in the PHC Program and, unless the context indicates otherwise, the person's representative.

(15) Medical need--A medical diagnosis that results in a functional limitation.

(16) Non-priority--The eligibility status for service delivery as determined by the case manager for an individual who does not meet the criteria described in §48.2918(d) of this title (relating to Primary Home Care or Community Attendant Services). Services delivered to such an individual may be referred to as non-priority services, and an attendant who serves such an individual may be referred to as a non-priority attendant.

(17) Notice--Includes oral, facsimile, secure e-mail and written notice.

(18) Oral notice--Directly speaking with a person. Oral notice does not include a message left by voice mail.

(19) PHC Program--Primary Home Care Program. A DADS attendant care services program. CAS, PHC, and FC are the three types of services available under the PHC Program.

(20) PHC services--A service under the PHC Program providing in-home attendant services to an individual with an approved medical need for assistance with personal care tasks. PHC services are provided under Title XIX of the federal Social Security Act, at 42 U.S.C. §1396a (relating to State plans for medical assistance).

(21) Practitioner--A person who holds a doctor of medicine or doctor of osteopathy degree and is currently licensed in Texas, Louisiana, Arkansas, Oklahoma or New Mexico; a physician assistant currently licensed in Texas; or a registered nurse approved by the Texas Board of Nursing to practice as an advanced practice nurse.

(22) Practitioner's statement--DADS' Practitioner's Statement of Medical Need form.

(23) Priority--The eligibility status for service delivery as determined by the case manager for an individual who meets the criteria described in §48.2918(d) of this title. Services delivered to such an individual may be referred to as priority services, and an attendant who serves such an individual may be referred to as a priority attendant.

(24) Provider--A licensed home and community support services agency that has a contract.

(25) Reckless behavior--Acting with conscious indifference to the consequences.

(26) Regional nurse--A DADS employee who is responsible for authorizing an individual to receive CAS.

(27) Representative--An individual's spouse, other responsible party, designated representative, or legally authorized representative.

(28) Routine referral--A written request from the case manager to a provider to evaluate an individual for service delivery when the case manager determines that the individual's needs do not require an expedited referral.

(29) Secure e-mail notice--Written information sent via electronic mail using sufficient precautions to protect the privacy and security of identifying information in compliance with the requirements of the Health Insurance Portability and Accountability Act of 1996.

(30) Service delivery plan--A single document that is agreed upon and signed by an individual and a provider containing the elements described in §47.45(a)(2) of this chapter (relating to Pre-Initiation Activities). A single document may be more than one page.

(31) Service schedule--A schedule for delivering attendant services containing the elements described in §47.45(a)(2)(C)(iii) of this chapter.

(32) Signature--A person's name written in longhand or a mark representing his or her name on a document to certify it is correct. Initials are not an acceptable substitute for a signature if the person has the ability to write in longhand.

(33) Supervisor--A provider employee who:

(A) coordinates the delivery of services in an individual's service delivery plan;

(B) supervises attendants; and

(C) meets the requirements for a supervisor in accordance with §97.404 of this title (relating to Standards Specific to Agencies Licensed to Provide Personal Assistance Services).

(34) Working day--Any day except a Saturday, Sunday, or state holiday.

(35) Written--Information recorded on paper or other legible document.

(36) Written notice--Written information sent via mail, facsimile, secured email, or hand delivered.

(37) Utilization review--A planned, systematic review of service utilization to evaluate efficiency, quality, and appropriateness of services and service delivery plans. Utilization review may include routinely scheduled review of services or providers, or may be focused on an identified issue.

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

Filed with the Office of the Secretary of State on April 24, 2009.

TRD-200901549

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Effective date: June 1, 2009

Proposal publication date: October 24, 2008

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

40 TAC §47.5

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

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

Filed with the Office of the Secretary of State on April 24, 2009.

TRD-200901550

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Effective date: June 1, 2009

Proposal publication date: October 24, 2008

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

SUBCHAPTER B. PROVIDER CONTRACTS

40 TAC §47.11

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

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

Filed with the Office of the Secretary of State on April 24, 2009.

TRD-200901551

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Effective date: June 1, 2009

Proposal publication date: October 24, 2008

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

SUBCHAPTER C. STAFF REQUIREMENTS

40 TAC §§47.21, 47.23, 47.25

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

Filed with the Office of the Secretary of State on April 24, 2009.

TRD-200901552

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Effective date: June 1, 2009

Proposal publication date: October 24, 2008

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

SUBCHAPTER D. SERVICE DELIVERY PLAN DEVELOPMENT

40 TAC §§47.41, 47.43, 47.45, 47.47, 47.49

§47.45.Pre-Initiation Activities.

(a) Pre-initiation activities. A supervisor must complete the following activities for each referral.

(1) The supervisor must conduct an evaluation.

(A) The evaluation must be a single document that includes the individual's self-report of:

(i) the dates and reasons for any hospitalization within the last three months; and

(ii) the assistance needed for the individual to perform ADLs, including any assistive devices or medical equipment used by the person.

(B) If the provider determines during the evaluation that the individual exhibits reckless behavior that results in imminent danger to the health and safety of the individual or provider staff, the provider must convene an Interdisciplinary Team meeting as described in §47.49 of this chapter (relating to Interdisciplinary Team) to discuss the barriers to service delivery.

(2) The supervisor must develop a service delivery plan on a single document that:

(A) is agreed upon and signed by the individual and the provider;

(B) indicates the location of service delivery;

(i) the tasks which the individual is authorized to receive;

(ii) the total weekly hours of service DADS authorizes the individual to receive;

(iii) the service schedule, which must include as necessary, based on an individual's needs, certain time periods for the delivery of specified tasks;

(iv) frequency of supervisory visits; and

(v) a statement that:

(I) the PHC Program only provides the tasks allowable in the program as described in §47.41 of this chapter (relating to Allowable Tasks) and agreed to on the service delivery plan; and

(II) the provider is not responsible for meeting the applicant's needs other than tasks allowed under the PHC Program.

(3) The provider must obtain a complete practitioner's statement and submit for DADS' review as described in §47.47 of this chapter (relating to Medical Need Determination). This paragraph does not apply to FC services.

(A) For routine referrals, the provider must:

(i) send a copy of the practitioner's statement to DADS by facsimile or secured email; or

(ii) mail a copy of the practitioner's statement to DADS.

(B) For expedited referrals:

(i) DADS may send the authorization for community services form pending receipt of the practitioner's statement if the provider notifies DADS that the provider has received a complete practitioner's statement that documents the individual's medical condition is the cause of the individual's functional impairment.

(ii) Upon notification of a completed practitioner's statement, DADS and the provider will negotiate a start-of-care date.

(iii) The provider must send the complete practitioner's statement to DADS within 7 working days after service initiation.

(iv) If a complete practitioner's statement is not sent to DADS within 7 working days after service initiation the provider is not entitled to payment from DADS until the date DADS receives the completed practitioner's statement. In this circumstance, DADS will change the service initiation date to the date DADS receives the completed practitioner's statement.

(v) The signature date of the practitioner must be on or before the negotiated start-of-care date.

(b) Service delivery plan variances.

(1) The provider must notify the case manager of a variance in the service delivery plan when the initial service delivery plan developed by the provider:

(A) has more hours than authorized on DADS' authorization for community care services form;

(B) has no personal care services, except for FC services; or

(2) The provider must provide services according to the existing service delivery plan, until the provider receives a new DADS' authorization for community care services form, except the provider may temporarily change the service delivery plan if:

(A) the individual requests and requires temporary assistance with allowable tasks not identified on the service delivery plan due to a change in circumstances or available supports; and

(B) the change in tasks does not increase the total approved hours of service or continue for more than 60 days.

(3) The provider must request and obtain a new DADS authorization for community services form when a temporary variance in tasks on the service delivery plan is to continue for more than 60 days or would result in more hours of service provided than have been approved.

(4) The provider must request a new DADS authorization for community care services form before a temporary variance from the service delivery plan continues for more than 60 days.

(5) The provider must maintain the following documentation regarding the temporary service delivery plan variance in the individual's file:

(A) the specific variance in the service delivery plan;

(B) the duration of the temporary variance; and

(1) for routine referrals, within 14 days after one of the following dates, whichever is later:

(A) the referral date on DADS' authorization for community care services form; or

(B) the date the provider receives DADS' authorization for community care services form, unless the provider fails to stamp the receipt date on the form, in which case the referral date will be used to determine timeliness; and

(2) for expedited referrals, by the date negotiated between the case manager and provider, which must be less than 14 days after the oral request.

(d) Delay in pre-initiation activities.

(1) A provider may delay meeting the due dates in subsection (c) of this section only for reasons beyond its control such as natural or other disasters. The provider must continue efforts to complete pre-initiation activities and set a date, if possible, for completion of pre-initiation activities.

(2) The provider must document any failure to complete the pre-initiation activities for routine referrals by the due date, including:

(A) the reason for the delay, which must be beyond the provider's control;

(B) either the date the provider anticipates it will complete the pre-initiation activities or specific reasons why the provider cannot anticipate a completion date; and

(3) The provider must notify the case manager of any failure to complete the pre-initiation activities for expedited referrals before the negotiated date for completion of pre-initiation activities. The case manager may refer the individual to another provider.

(e) Documentation of pre-initiation activities.

(1) The provider may combine the evaluation and service delivery plan into a single document, but each item must be clearly identifiable.

(2) The provider must maintain documentation of the pre-initiation activities in the individual's file.

§47.47.Medical Need Determination.

(a) Applicability. This section does not apply to FC services or transfers of individuals in the PHC Program.

(b) Determining medical need. A provider must obtain and submit a complete practitioner's statement to DADS for review by the applicable due date, as described in §47.45(c) of this chapter, (relating to Pre-Initiation Activities) for:

(1) an individual whom DADS refers to the provider (unless the individual requests and is to receive FC services);

(2) an individual currently receiving FC services whom DADS refers to the provider for PHC services or CAS; and

(3) an individual currently receiving services whom DADS refers to the provider to have medical need reassessed, as requested by the case manager, such as when the initial medical need was established for a limited time.

(1) the DADS case manager for PHC services; and

(2) the DADS regional nurse for CAS.

(d) Reinstatement of services after termination. If DADS notifies the provider that services are terminated, all pre-initiation activities, including medical need determination, must be completed before services are reinstated.

(e) Mental illness and mental retardation. Persons diagnosed with mental illness, mental retardation, or both, are not considered to have established medical need based solely on such diagnoses, but may establish medical need through a related diagnosis that results in a functional limitation.

§47.49.Interdisciplinary Team.

(a) Interdisciplinary Team (IDT). The IDT is a designated group that includes the following people who meet when the provider identifies the need to discuss service delivery issues or barriers to service delivery:

(1) the individual or the individual's representative, or both;

(2) a provider representative; and

(3) a DADS representative, who may be:

(A) the case manager (or designee);

(B) the case manager's supervisor (or designee);

(D) the regional nurse (or designee).

(b) Convening an IDT meeting.

(1) The provider must convene an IDT meeting:

(A) within three working days of the date the provider suspends services to an individual under §47.71(a)(7) or (b) of this chapter (relating to Suspensions); or

(B) within seven working days of the date the provider identifies an issue that prevents the provider from carrying out a requirement of the PHC Program.

(2) A provider must make and document a good faith effort to include all members of the IDT described in subsection (a) of this section.

(3) If the provider is unable to convene an IDT meeting with all the members described in subsection (a) of this section, the provider must convene the IDT meeting with the available members and send the documentation of the IDT meeting described in subsection (e) of this section to the Regional Director for the DADS region in which the individual resides. The documentation must be sent within five working days after the date of the IDT meeting.

(1) The IDT meeting may be conducted by telephone or in person.

(2) The IDT must:

(A) evaluate the issue;

(B) identify any solutions to resolve the issue; and

(d) IDT meeting outcome. The provider must do one of the following within two working days after the IDT meeting:

(1) implement the recommendations of the IDT; or

(2) discharge the individual from the provider and refer the individual to the case manager for referral to another provider.

(e) Documentation of the IDT meeting. The provider must document the IDT meeting in the individual's file, including the:

(1) specific reasons for calling the IDT meeting;

(2) participants in the IDT meeting;

(3) recommendations of the IDT;

(4) action as a result of the IDT recommendations; and

(5) reasons for the provider's actions.

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

Filed with the Office of the Secretary of State on April 24, 2009.

TRD-200901553

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Effective date: June 1, 2009

Proposal publication date: October 24, 2008

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

SUBCHAPTER E. SERVICE REQUIREMENTS

40 TAC §§47.57, 47.59, 47.61, 47.65, 47.67, 47.69, 47.71 - 47.73, 47.75

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

§47.57.Service Delivery Options.

An individual receiving PHC Program services has a choice of one of the following three service delivery options.

(1) Agency option. In the agency option:

(A) the provider is responsible for personnel decisions, such as selecting, supervising, and dismissing the attendant who provides services to the individual, with input from the individual;

(B) the provider is responsible for:

(i) recruitment of attendants and substitute attendants (a responsibility the individual may share);

(ii) payroll for attendants and substitute attendants; and

(iii) filing tax-related reports of attendants and substitute attendants;

(D) the provider is responsible for providing substitute attendants.

(2) Consumer directed services (CDS) option. In the CDS option, as described in Chapter 41 of this title (relating to Consumer Directed Services Option):

(A) the individual recruits, hires, manages, and fires attendants;

(B) the individual is the employer of record of his or her attendant and substitute attendant;

(D) the consumer directed services agency (CDSA) is responsible for financial management services, including:

(i) registering as the individual's employer-agent with the Internal Revenue Service and the Texas Workforce Commission;

(ii) managing payroll for attendants and substitute attendants, including filing tax-related reports;

(iii) tracking expenditures; and

(iv) submitting quarterly expenditure reports to the employer and case manager; and

(E) the CDSA is not required to be licensed under Chapter 97 of this title (relating to Licensing Standards for Home and Community Support Services Agencies) when performing the functions described in subparagraph (D) of this paragraph.

(3) Service responsibility option (SRO). In the SRO, as described in Chapter 43 of this title (relating to Service Responsibility Option):

(A) the individual selects, manages, supervises, and dismisses attendants;

(B) the provider is the employer of record for the attendant and substitute attendant;

(i) providing substitute attendants if necessary;

(ii) managing payroll for attendants and substitute attendants; and

(iii) filing tax-related reports of attendants and substitute attendants;

(D) the individual and supervisor must negotiate the frequency of supervisory visits;

(E) the individual is responsible for the new attendant orientation; and

(F) the provider is required to be licensed under Chapter 97 of this title if performing the functions described in subparagraph (C) of this paragraph.

§47.61.Service Initiation.

(a) Service initiation. The provider must initiate services:

(1) for routine referrals described in §47.43 of this chapter (relating to Referrals):

(A) for FC services, within 14 days after the following, whichever is later:

(i) the referral date on DADS' authorization for community care services form; or

(ii) the date the provider receives DADS' authorization for community care services form, unless the provider fails to stamp the receipt date on the form, in which case the referral date is used to determine timeliness; or

(B) for PHC and CAS, within seven days after provider receipt of DADS' authorization for community care services form; and

(2) for expedited referrals described in §47.43 of this chapter, on the date negotiated between the case manager and provider.

(b) Notification of service initiation. Within 14 days after initiating services, the provider must send notice of service initiation to the case manager.

(c) Delay in service initiation. A provider may delay service initiation only for reasons not directly caused by the provider, or reasons beyond its control, such as natural or other disasters. The provider must continue efforts to initiate services and set a date, if possible, for service initiation. The provider must document any failure to initiate services by the applicable due date in subsection (a) of this section, including:

(1) the reason for the delay, which must be beyond the provider's control;

(2) either the date the provider anticipates it will initiate services, or specific reasons why the provider cannot anticipate a service initiation date; and

(3) a description of the provider's ongoing efforts to initiate services.

(d) Documentation of service initiation. The provider must maintain documentation of service initiation in the individual's file.

§47.65.Supervisory Visits.

(a) Supervisory visits. A supervisor must conduct in-person supervisory visits to assess and document on a single form whether:

(1) the service delivery plan is adequate;

(2) the individual continues to need the services;

(3) the individual needs a service delivery plan change;

(4) the attendant continues to be competent to provide the authorized tasks; and

(5) the attendant is delivering the authorized tasks.

(b) Frequency. A supervisor must establish the frequency of in-person supervisory visits, based on the specific needs of the individual, the attendant, or both. The frequency of in-person supervisory visits must be at least annually.

(c) Documentation of supervisory visits. The provider must maintain documentation of each supervisory visit in the individual's file.

(d) Combining a supervisory visit and a new attendant orientation. A supervisor may conduct a scheduled supervisory visit and a new attendant orientation at the same time.

§47.67.Service Delivery Plan Changes.

(a) Increase in hours or terminations.

(1) A provider must submit written notification to the case manager within seven days after learning of any change that may:

(A) require an increase in hours in the individual's service delivery plan; or

(B) result in the termination of services due to the individual receiving no personal care tasks, except for FC services.

(2) The notification must include the:

(A) date the provider learned of the need for the change;

(B) reason for the change;

(D) signature and date of the provider representative.

(b) Decrease in hours. The provider must develop a new service delivery plan, as described in §47.45(a)(2) of this chapter (relating to Pre-Initiation Activities), within 21 days of the provider identifying the need for an ongoing decrease in hours from the service delivery plan currently approved by the individual.

(1) The provider must notify the case manager, or designee, of the reason an individual requires an immediate increase in hours of service, and must obtain approval from DADS of both the number of additional hours of service to be provided the individual and the effective date of the change.

(2) The provider must implement the immediate increase in hours of service on the negotiated effective date of the change.

(3) The provider must document the immediate increase in hours of service. Documentation must include:

(A) the date the provider received approval for the change;

(B) the name of the DADS staff who approved the change;

(D) the number of hours of service authorized.

(4) The provider must maintain documentation of service delivery plan changes:

(A) in the individual's file; and

(B) according to the terms of the contract.

(d) Implementation of service delivery plan changes. The provider must implement the service delivery plan change on the following date, whichever is later:

(1) the authorization begin date on DADS' authorization for community care services form; or

(2) five days after the date the provider receives DADS' authorization for community care services form, unless the provider fails to stamp the receipt date on the form, in which case the authorization begin date on the form will be used to determine timeliness.

(e) Delay in implementation of service delivery plan changes. If a provider does not implement a service delivery plan change on the effective date of the change, the provider must set a new implementation date. The provider must document by the next working day any failure to implement a service delivery plan change on the effective date of the change. The documentation must include:

(1) the reason for the failure to timely implement the service delivery plan change; and

(2) the new implementation date.

§47.71.Suspensions.

(a) Required suspensions. A provider must suspend services if:

(1) an individual temporarily or permanently leaves the contracted service delivery area;

(2) the individual moves to a location where services cannot be provided under the PHC Program;

(3) the individual dies;

(4) the individual is admitted to an institution, which is a:

(A) hospital;

(B) nursing facility;

(D) state hospital;

(E) intermediate care facility serving persons with mental retardation or a related condition; or

(F) correctional facility.

(5) the individual requests that services end;

(6) the Health and Human Services Commission denies the individual's Medicaid eligibility (not applicable to FC services); or

(7) the individual or someone in the individual's home exhibits reckless behavior, which may result in imminent danger to the health and safety of the individual, the attendant, or another person, in which case the provider must make an immediate referral to:

(A) the Texas Department of Family and Protective Services or other appropriate protective services agency;

(B) local law enforcement, if appropriate; and

(b) Optional suspensions. The provider may suspend services if:

(1) the individual or someone in the individual's home engages in discrimination against a provider or DADS employee in violation of applicable law; or

(2) the individual refuses services for more than 30 consecutive days.

(c) Notification of service suspension. The provider must notify the case manager of any suspension by the first working day after the provider suspends services. The notice must include:

(1) the date of service suspension;

(2) the reason(s) for the suspension;

(3) the duration of the suspension, if known; and

(4) for a suspension under subsections (a)(7) or (b) of this section, a written explanation of the circumstances surrounding the suspension.

(d) Interdisciplinary Team (IDT) meeting. The provider must convene an IDT meeting, as described in §47.49 of this chapter (relating to Interdisciplinary Team), if services are suspended under subsections (a)(7) or (b) of this section.

(e) Resuming services after suspension. This subsection does not apply to subsections (a)(7) or (b)(1) of this section.

(1) A provider must resume services after suspension on the earliest of the following:

(A) upon the individual's return home, or the date the provider becomes aware of the individual's return home, if applicable;

(B) on the date specified in writing by the case manager;

(D) upon the provider's receipt of notification from the case manager that the provider must resume services pending the outcome of an appeal.

(2) The provider must notify the case manager of the date services resume within seven days after that date.

§47.73.Annual Reauthorization for Community Attendant Services (CAS).

(a) Reauthorization request.

(1) Upon receipt of the annual DADS authorization for community care services form, a provider must request annual reauthorization for all CAS.

(2) The provider must send the following to the regional nurse to obtain annual reauthorization:

(A) DADS' authorization for community care services form received from the case manager; and

(B) a signed statement indicating whether the supervisor agrees or disagrees with the tasks and hours indicated on DADS' authorization for community care services form, and if the supervisor disagrees, the statement must provide the specific reasons for disagreeing with the hours and tasks on this form.

(b) Reauthorization request due date. The provider must submit the information described in subsection (a)(2) of this section to the regional nurse within 14 days after one of the following dates, whichever is later:

(1) the referral date on DADS' authorization for community care services form; or

(2) the date the provider receives DADS' authorization for community care services form, unless the provider fails to stamp the receipt date on the form, in which case the referral date will be used to determine timeliness.

(c) Authorization determination. DADS makes the authorization determination and notifies the provider before the annual reauthorization is due.

(d) Documentation of annual reauthorization. The provider must maintain documentation of the written request for reauthorization for CAS in the individual's file.

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

Filed with the Office of the Secretary of State on April 24, 2009.

TRD-200901554

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Effective date: June 1, 2009

Proposal publication date: October 24, 2008

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

SUBCHAPTER F. CLAIMS PAYMENT AND DOCUMENTATION

40 TAC §§47.81, 47.83, 47.87, 47.89

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

Filed with the Office of the Secretary of State on April 24, 2009.

TRD-200901555

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Effective date: June 1, 2009

Proposal publication date: October 24, 2008

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

SUBCHAPTER G. UTILIZATION REVIEW

40 TAC §47.91

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

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

Filed with the Office of the Secretary of State on April 24, 2009.

TRD-200901556

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Effective date: June 1, 2009

Proposal publication date: October 24, 2008

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