ADOPTED RULES An agency may take final action on a section 30 days after a proposal has been published in the Texas Register. The section becomes effective 20 days after the agency files the correct document with the Texas Register, unless a later date is specified or unless a federal statute or regulation requires implementation of the action on shorter notice. If an agency adopts the section without any changes to the proposed text, only the preamble of the notice and statement of legal authority will be published. If an agency adopts the section with changes to the proposed text, the proposal will be republished with the changes. TITLE 1. ADMINISTRATION Part V. General Services Commission Chapter 121. Telecommunications Services Division 1 TAC sec.sec.121.1-121.11 The General Services Commission adopts the repeal of sec. sec.121.1-121.11, concerning telecommunication services, without changes to the proposed text as published in the September 9, 1994, issue of the Texas Register (19 TexReg 7052). The repeal is necessary in order to adopt new sec.sec.121.1-121.9 which provide updated streamlined definitions, guidelines and operating procedures to insure efficient operation of the Texas Agency Network (TEX-AN) and the Capitol Complex Telephone System (CCTS). The repeal deletes obsolete and burdensome language. No comments were received regarding the repeal. The repeal is adopted under Texas Civil Statutes, Article 601b, Article 10, which provide the General Services Commission with the authority to promulgate rules necessary to accomplish the purpose of that article. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on October 10, 1994. TRD-9449325 Judith Monaco Porras General Counsel General Services Commission Effective date: November 11, 1994 Proposal publication date: September 9, 1994 For further information, please call: (512) 463-3960 1 TAC sec.121.5, sec.121.9 The General Service Commission adopts amendments to sec.121.5, and sec.121. 9, concerning retention of telephone records. Section 121.5 is adopted with changes to the proposed text as published in the March 4, 1994, issue of the Texas Register (19 TexReg 1510). Section 121.9 is adopted without changes to the proposed text and will not be republished. The amendments are necessary to clarify telephone records' retention and to allow for reduced costs to agencies for maintaining voluminous records. The amendment to sec.121.5(c)(1) deletes the sentence: "Agencies should destroy the copy of call detail records provided periodically for billing purposes after the agency has verified and paid its bill." In accordance with sec.121.5(c)(1), the General Services Commission will retain long distance telephone call detail for all TEX-AN using agencies for a period of four years. The commission will provide each using agency its bill summary of centralized capitol complex telephone service without call detail records. Since local call detail is not needed for billing purposes, the commission does not maintain such records. Two written comments were received. One comment expressed concern that the proposed rule directed agencies not to retain duplicate long distance records and questioned the commission's power to authorize destruction of records by the agencies. One comment stated that the commission's commitment to retain TEX-AN long distance call detail records for four years will serve to reduce records retention costs incurred by agencies. Alternative language was suggested addressing the retention of long distance call detail records by the agencies. Representative Layton Black commented against these amendments. William D. Gooch commented in favor of these amendments. The commission agrees with the comments that it should not direct other agencies' records retention or destruction, and has modified the rule accordingly. This section is adopted pursuant to Texas Civil Statutes, Article 601b, which provides the General Services Commission with all the authority to promulgate rules necessary to accomplish the purpose of this Article. sec.121.5. TEX-AN Billing. (a) Each TEX-AN user shall be billed for its respective use of TEX-AN services on a monthly basis. TEX-AN users will be billed for the following: (1) TEX-AN user's actual minute use; (2) TEX-AN user's actual circuit use; (3) TEX-AN user's proportionate use (based on minute or circuit use) of common telecommunications services and/or equipment for said services provided to all or some TEX-AN users; (4) TEX-AN user's total cost for its exclusive use of any telecommunications equipment; (5) TEX-AN user's nonrecurring charges for any type of service provided by TSD, if applicable; and (6) TSD's operation charge of an amount not to exceed 15% of the total of the costs listed in paragraphs (1)-(5) of this subsection. (b) Each TEX-AN user shall make payment in full as billed to the TSD within ten days after receipt of its bill. (c) Any institution of higher education extending TEX-AN service to students is responsible for payment directly to the commission of the total charges billed, regardless of whether it is able to collect the student's contribution of the payment. (d) Inquiries, corrections, changes or modifications by TEX-AN users to its bill must be made in writing to the TSD within 30 days of receipt of its bill. Any adjustments to payment will be made in the subsequent billing period. (e) In order to maintain sufficient amounts in the telecommunications revolving account to make timely payments to the telecommunications service providers, the commission may require any TEX-AN users to make advance payments based on the average of each TEX-AN user's prior three-month billing exclusive of charges described in subsection (a)(5) of this section. Advance payments which are not equal to the actual amount due for the subsequent payment period will be adjusted accordingly. (f) All TEX-AN call detail records are maintained by the commission for a period of four years. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on October 10, 1994. TRD-9449365 Judith Monaco Porras General Counsel General Services Commission Effective date: November 11, 1994 Proposal publication date: March 4, 1994 For further information, please call: (512) 463-3960 TITLE 10. COMMUNITY DEVELOPMENT Part VII. Texas Council on Workforce and Economic Competitiveness Chapter 251. Administration 10 TAC sec.251.1 The Council on Workforce and Economic Competitiveness adopts new sec.251.1 of Chapter 251, Administration, of Title 10, Texas Administrative Code, concerning the charges for public records, without changes to the proposed text as published in the August 9, 1994, issue of the Texas Register (19 TexReg 6190). Chapter 428, Acts of the 73rd Legislature, 1993, requires each state agency to adopt a rule establishing a policy for charging for agency records that are public information. This rule adopts by reference the rules adopted by the General Services Commission on this subject. This rule would adopt by reference the rules adopted by the General Services Commission on charging for copies of public records. The General Services Commission rules provide guidelines for determining when charges should be made for copying public records, a schedule for calculating costs when an agency determines that it is appropriate to charge for copies of public records, and procedures for handling the transactions. The adoption of the rule will allow the Council to determine when charges are appropriate, to calculate the correct charges, and remit the receipts. No comments were received regarding adoption of the new section. The new section is proposed under the Workforce and Economic Competitiveness Act, Texas Civil Statutes, Article 5190.7a, which provides authority for the Council on Workforce and Economic Competitiveness to issue rules. This section is adopted to comply with Chapter 428, Acts of the 73rd Legislature, 1993, which requires each state agency to adopt a rule establishing a policy for charging for agency records that are public information. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 10, 1994. TRD-9449341 Alexa Ray General Counsel Texas Council on Workforce and Economic Competitiveness Effective date: November 1, 1994 Proposal publication date: August 9, 1994 For further information, please call: (512) 707-8911 Chapter 252. Local Workforce Development Boards 10 TAC sec.252.2 The Council on Workforce and Economic Competitiveness adopts new sec.252.2, with changes to the proposed text as published in the August 23, 1994, issue of the Texas Register (19 TexReg 6632). The Workforce and Economic Competitiveness Act, Texas Civil Statutes, Article 5190.7a, requires the council to receive and consider requests for waivers from the statutory provisions requiring independent staffing of a local workforce development board and prohibiting provision of training services by a local workforce development board. The council has determined that it is appropriate to adopt a rule establishing a policy for the consideration of waivers to insure that they are handled in a consistent manner and so that the requirements for a waiver will be known to the public. The section provides procedures and criteria for obtaining a waiver of the independent staffing and separate service provider provisions of the Workforce and Economic Competitiveness Act. It defines terms used in the Act but not defined in the Act, and attempts to clarify the statutory standard for granting waivers by giving examples. Changes to the proposed rule occur in virtually every part of it. The Council staff conducted a negotiated rulemaking process with representatives of several groups who were interested in the rule. The negotiating group reworded the rule subsection-by-subsection to create an agreed version. At the meeting of the Council on September 24, 1994, an amendment was made to subsection (e) of the rule that differs from the agreed version. The Council determined that the burden for extending a waiver beyond the original period for which it was granted should be on the applicant to show the continued need for the waiver rather than on the Council to challenge the waiver and show that the need did not continue to exist. Three meetings were held in the negotiated rulemaking process to attempt to arrive at a consensus on the proposed rule. Groups and associations that participated in the process are listed below. No written or other comments were received outside the negotiated rulemaking process. The comments from the participants in the process were generally aimed at making waivers more easily obtainable or increasing the power of the local elected officials in the process. Other areas of comments were to clarify the requirements to obtain a waiver and the procedures required. The following groups and associations commented on the amendment. The Texas Association of Private Industry Councils, Texas Association of Community Colleges, Quality Workforce Planning Councils, Vocational Agricultural Teachers of Texas, JTPA Service Delivery Area Administrators, Texas Association of Regional Councils, Belton Independent School District, and the Texas Association for Literacy and Adult Education. Through the negotiated rulemaking process, all comments were considered in the meetings of the negotiating group. While not all comments resulted in changes to the version to be adopted, they were considered by the agency representative and the other groups represented. Many comments did result in changes to the final version of the rule, although not necessarily in the form originally suggested. Generally, suggestions that were rejected were considered to be inconsistent the intent of the statute or impractical for the agency to administer. The new section is adopted under the Workforce and Economic Competitiveness Act, Texas Civil Statutes, Article 5190.7a, which requires the Council on Workforce and Economic Competitiveness to establish criteria for the formation of local workforce development boards. No other statutes will be affected. sec.252.2. Waivers for Independent Staffing and Separate Service Provider Requirements for Local Workforce Development Boards. (a) Definitions. The following words and terms, when used in this section, shall have the following meanings unless the context clearly requires otherwise: (1) Detailed justification-Objective evidence of circumstances that affect the factors to be considered in granting a waiver. (2) Qualified alternative-In the case of delivery of workforce training and services, individuals or organizations with one or more years of experience in workforce education or workforce training and services and having any state license or other authorization if required to perform the services proposed to be provided. (3) Workforce services-All services related to workforce development, including those activities that are necessary to find and place qualified individuals in workforce education and workforce training programs and courses, including outreach, intake, assessment, placement, case management, counseling, and evaluation, as well as workforce education, and workforce training and services. (b) Independent Staffing Requirement. (1) Section 4.08(a) of the Workforce and Economic Competitiveness Act requires that a local workforce development board's staff shall be separate from and independent of any organization providing workforce education or workforce training and services in the workforce development area unless a waiver has been granted by the council. (2) What the waiver allows and requires. (A) A local workforce development board may designate a qualified person or organization that is a provider of workforce education or workforce training and services to provide staff services to the board if a waiver is granted. (B) The board must arrange for independent evaluation of any workforce services provided by the staffing person or organization. (C) The council, at the time the waiver is requested, will require a plan for obtaining staff services and independent evaluation consistent with separation of the planning and evaluation functions from the operation of the programs in the local workforce development area and assuring the quality of workforce education and workforce training and services. (3) Justification for waiver. The request for the waiver must contain a detailed justification based on factors such as those listed below or other appropriate factors: (A) cost effectiveness; (B) prior experience; (C) geographic considerations; (D) budgetary considerations; and (E) availability of qualified applicants. (4) Type of evidence required. The type of evidence required for justification will vary with each factor. The following examples are intended as a guide to applicants for waiver: (A) Cost effectiveness. A comparison of the cost of hiring independent staff with the cost of administration by a person who is a provider of workforce education or workforce training and services or a provider organization that would provide the level and quality of services to the board. (B) Prior experience. In the case of a board that is already in existence, this could include a summary of the board's experience in maintaining an independent staff. (C) Geographic considerations. Does the geography of the local workforce development area affect the availability of independent staff? If so, how? (D) Budgetary considerations. What funds are available to hire an independent staff? What funds would be available for other methods of providing staff to the board? (E) Availability of qualified applicants. Evidence that would show that the organization requesting the waiver had solicited applications for independent staff and was not able to find qualified applicants. (5) Standards for evaluating requests for waiver. In considering requests for waiver, the Council will consider each of the factors presented by the applicant and consider whether the application, taken as a whole, establishes the need for a waiver. The primary consideration for determining the waiver policy is to establish LWDBs that are able to do the most effective job possible. (c) Separate Service Provider Requirement. (1) Section 4.10(a) of the Workforce and Economic Competitiveness Act requires that a local workforce development board may not be a direct provider of workforce training and services unless it obtains a waiver from the Council. (2) What the waiver allows and requires. (A) The waiver allows the board to be a direct provider of workforce training and services. (B) If a board receives a waiver, the responsibility for evaluation of results and outcomes of services covered by the waiver in the local workforce development area rests with the council. (C) A waiver will be granted by the council for those specific services that the council determines are appropriate for the local workforce development board to provide. (3) Justification for waiver. The request for a waiver must include a detailed justification based on the lack of an existing qualified alternative for delivery of workforce training and services in the workforce development area. (4) Type of evidence required: availability of qualified alternative for delivery of service. Sufficient evidence must be submitted that would show that the organization requesting the waiver had solicited alternative service providers and was not able to find another qualified provider. In addition, the applicant must submit sufficient evidence of its qualifications to provide the services that it proposes to provide. Selection of service providers for programs funded under the Job Training Partnership Act must be consistent with section 107 of that act and the Governor's coordination and special services plan. Service providers for other programs must also comply with all applicable federal and state laws and regulations. (5) Standards for evaluating requests for waiver. In considering requests for waiver, the Council will consider whether the application, taken as a whole, establishes the need for a waiver. The primary consideration for determining the waiver policy in this case is to ensure that there is an absence of qualified service providers within the region that would allow for the separation of planning, evaluation, and oversight from the administration of programs. (d) Procedures for requesting a waiver under this section. (1) A request for a waiver may be submitted with the application to form a local workforce development board or at any subsequent date. The request must be submitted in writing to the council at its offices in Austin, Texas. (2) The request should contain all of the material detailed in this section. Failure to address one or more of the factors may result in denial of a waiver. (3) Council staff will review the application upon receipt and notify the applicant within 15 days of whether the application is complete. Staff may request additional information from the applicant if this is considered necessary. (4) A complete application for a waiver received 45 days prior to a regularly scheduled meeting of the council will be placed on the agenda for the meeting. Applications that are not certified as complete by staff or are not received 45 days prior to the next regularly scheduled meeting of the council will be withdrawn from the agenda. (5) The application shall be heard as an action item by the council in accordance with the law and bylaws governing the actions of the council. The application may be heard in a subcommittee prior to being heard by the council, at the discretion of the presiding officer. (6) The applicant shall be notified in writing of the action of the council within seven days of the date of the action. (e) Duration of Waiver. (1) A waiver, if granted, shall be granted: (A) for a period of time not to exceed two years, after which, the applicant shall be required to present evidence that the conditions justifying the waiver continue to exist; or (B) for a period of time, on the condition that the applicant take steps defined by the council to eliminate the need for the waiver. (2) The applicant shall, in its detailed justification for the waiver, provide evidence and argument concerning the duration of the waiver. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 10, 1994. TRD-9449331 Joe H. Thrash General Counsel Texas Council on Workforce and Economic Competitiveness Effective date: November 1, 1994 Proposal publication date: August 23, 1994 For further information, please call: (512) 707-8911 10 TAC sec.252.3 The Council on Workforce and Economic Competitiveness adopts new sec.252.3 of Chapter 252, Local Workforce Development Boards, of Title 10, Texas Administrative Code, without changes to the proposed text as published in the August 23, 1994, issue of the Texas Register (19 TexReg 6634). The Workforce and Economic Competitiveness Act, Texas Civil Statutes, Article 5190. 7a, requires the Council to develop criteria for the formation of local workforce development boards to plan, oversee, and evaluate the delivery of all workforce training and services programs in the local workforce development areas. The Workforce and Economic Competitiveness Act, Texas Civil Statutes, Article 5190.7a, provides that the Council on Workforce and Economic Competitiveness will oversee the process for the formation of local workforce development areas. This rule provides guidance for the formation and criteria for the certification of the local workforce development boards. The chief elected officials in each designated local workforce development area must submit an application and provide the information required to receive approval from the Council. The approval of the Council will allow them to submit the application to establish the local board to the Governor. No comments were received regarding adoption of the new section. The new sections are proposed under the Workforce and Economic Competitiveness Act, Texas Civil Statutes, Article 5190.7a, which requires the Council on Workforce and Economic Competitiveness to establish criteria for the formation of local workforce development boards. No other statutes will be affected. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 10, 1994. TRD-9449342 Joe H. Thrash General Counsel Texas Council on Workforce and Economic Competitiveness Effective date: November 1, 1994 Proposal publication date: August 23, 1994 For further information, please call: (512) 707-8911 TITLE 16. ECONOMIC REGULATION Part I. Railroad Commission of Texas Chapter 5. Transportation Division Subchapter P. Commercial Zones 16 TAC sec.5.294 The Railroad Commission of Texas adopts an amendment to sec.5.294, concerning existing commercial zones, without changes to the proposed text as published in the August 30, 1994, issue of the Texas Register (19 TexReg 6819). The amendment is adopted as a result of a petition for rulemaking filed by Texas Commerce Bank, FirstBank, and Campbell's Delivery Service, Inc., and creates the Lower Rio Grande Valley commercial zone, which includes Cameron, Hidalgo, Starr, and Willacy counties. The amendment will allow available for-hire common carriers to transport commodities between points in Cameron, Willacy, Hidalgo, and Starr counties without obtaining a certificate of public convenience and necessity or a permit from the commission. A public comment hearing was held on September 26, 1994. All of the public comments received were in favor of the proposed rule. Comments stated that the four-county subject area is a single, integrated unit of cities connected by a network of state, federal, and local roads, that operates as a single economic unit. The comments also stated that, because of its geographic isolation from other major metropolitan areas in the state, the people who live and work in this area interact, function, and perceive themselves as a unified region. Comments also stated that, with the advent of the North American Free Trade Agreement (NAFTA), trade and business will increase throughout the entire region, necessitating even more transportation between the various cities in the subject area. The Independent Bankers Association of Texas was the only group or association commenting in favor of adoption of the proposed amendment. No comments were received from any existing regulated carrier or other person or entity opposing adoption of the amendment. The commission agrees with the comments. Specifically, the Commission agrees that the four-county subject area functions as an independent commercial entity, and that the municipalities in these counties, including McAllen, Brownsville, Harlingen, San Benito, Edinburg, McAllen, Pharr, Mission, Weslaco, Rio Grande City, and Raymondville, are adjacent to and commercially a part of one another. The commission also agrees that NAFTA will increase business within the subject area and that there will be a corresponding need for greater flexibility in transportation services throughout the area. The commission has considered the effect of the amendment on fully regulated motor carriers operating in regulated intrastate commerce to, from, and within the proposed commercial zone, and believes that the amendment will not adversely affect existing regulated carriers within the subject area. No comments were received that directly addressed this issue; however, the complete lack of any comments by or on behalf of any regulated carrier operating within the commercial zone suggests that no such carrier considers the creation of the commercial zone as potentially impinging on its business. The amendment is adopted pursuant to Texas Civil Statutes, Article 911b, sec.1(g), which authorize the commission to define and prescribe commercial zones adjacent to and commercially a part of any specified incorporated municipality. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 10, 1994. TRD-9449303 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP Gas Railroad Commission of Texas Effective date: October 31, 1994 Proposal publication date: August 30, 1994 For further information, please call: (512) 463-7094 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part I. Texas Department of Human Services Chapter 15. Medicaid Eligibility Subchapter C. Basic Program Requirements 40 TAC sec.15.315 The Texas Department of Human Services (DHS) adopts an amendment to sec.15. 315, concerning the Preadmission Screening and Annual Resident Review (PASARR) policy, in its Medicaid Eligibility rule chapter. The amendment is adopted without changes to the proposed text as published in the August 26, 1994, issue of the Texas Register (19 TexReg 6718). The justification for the amendment is to revise Medicaid eligibility rules to track Institutional Policy rules and to comply with a directive from the Health Care Financing Administration that provides that clients with medical necessity are eligible for nursing facility care regardless of their mental condition. The amendment will function by ensuring that eligible clients will receive nursing facility care regardless of their mental condition. No comments were received regarding adoption of the amendment. The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs and under Texas Civil Statutes, Article 4413 (502), sec.16, which provides the Health and Human Services Commission with the authority to administer federal medical assistance funds. The amendment implements the Human Resources Code sec. sec.22.001-22.024 and sec.sec.32.001-32.042. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on October 11, 1994. TRD-9449315 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: November 1, 1994 Proposal publication date: August 26, 1994 For further information, please call: (512) 450-3765 Chapter 19. Long-Term Care Nursing Facility Requirements for Licensure and Medicaid Certification The Texas Department of Human Services (DHS) adopts new sec.19.1612 and adopts an amendment to sec.19.1807, concerning Texas Index for Level of Effort (TILE) assessments and rate setting methodology, in its Long-Term Care Nursing Facility Requirements for Licensure and Medicaid Certification rule chapter. Section 19.1612 is adopted with changes to the proposed text as published in the May 20, 1994, issue of the Texas Register (19 TexReg 3903). The amendment to sec.19.1807 is adopted without changes to the proposed text, and will not be republished. The justification for the new section and amendment is to establish corrective actions for unacceptably high error rates on Texas Nursing Facility Client Assessment, Review, and Evaluation (CARE) forms submitted by nursing facilities to DHS's Utilization and Assessment Review staff. The new section and amendment will function by reducing errors and improving accountability of nursing facilities for the information submitted on the CARE forms. During the public comment period, DHS received comments from the Texas Association of Homes for the Aging, and the Texas Health Care Association. A summary of the comments and DHS's responses follow: Comment: Two commenters stated that an "unacceptable error rate," which can result in monitoring or compliance, is not clearly defined. Also, one commenter stated that "unacceptable levels of improvement" after a monitoring period are not defined. Response: DHS is adopting sec.19.1612(c) and (d)(1) with changes to clarify that decisions on corrective action will be made at the state office level as an assurance to providers that these actions are considered at the highest level and are applied cautiously. Comment: One commenter stated that the rule should make allowances for turnover in the position of facility nurse assessor by providing a grace period and allowing some time for the new facility nurse assessor to attend the TILE training course. Response: DHS is developing a provision for a temporary waiver to allow a facility to write the case-mix nurse specialist to explain the special circumstances. Comment: One commenter stated that "The standards should be located under reimbursement and not scattered among the rules. What is the department's rationale for moving section sec.19.1612 to medical review and re-evaluation?" Response: The section that was moved to sec.19.1612 is more applicable to medical review and re-evaluation because it concerns utilization assessment and review. Its previous location was in the chapter on reimbursement methodology, where it had little application. Comment: One commenter stated that "Clarification is needed as to when each purpose code is to be used and when they are no longer good. Does a medical necessity expire when someone goes home? Does the permanent medical necessity follow and remain if the resident goes to the hospital for more than 30 days? If so, how will the person be eligible for the NF waiver?" Response: In response to this comment, DHS is adopting sec.19.1612(a)(3) with a change to read, "If the MNR indicates a medical necessity for NF care, the MN becomes permanent. A MN will be lost only if a resident is discharged to home for over 30 days." These rules are not intended to address the NF waiver program. Comment: One commenter asked "What code establishes a permanent MN?" Response: Section 19.1612(a)(3) states that a permanent MN is established by the submission of a Purpose Code 3. Comment: One commenter stated "It is extremely difficult to get into TILE training courses. Provider associations could assist by offering courses through official TILE assessment trainers." Response: From February to May 1994, DHS has offered 22 training classes attended by 1190 NF staff. Approximately 34 more sessions are scheduled June through December 1994. Each session has capacity for 100 participants. Some sessions have filled more quickly than others because some facilities are registering eight to nine staff. Effective September 1, 1994, registration will be limited to four staff per facility, which should help to address this problem. In regard to the need for trainers to assist, DHS believes its three department trainers are sufficient to provide this training. DHS must assume responsibility for ensuring the quality and consistency of workshop content through its trainers because the attendees will receive certification to complete the assessment forms through these workshops. Comment: One commenter stated that "The time frame to complete an assessor course is unreasonable. It should be extended to January 1, 1996." Response: DHS will move the deadline for completing training to April 1, 1995. Comment: One commenter stated that "There needs to be a provision for emergencies when the nurse assessor may be unavailable." Response: DHS is developing a provision for a temporary waiver which will allow a facility to write the Case-Mix Nurse Specialist to explain the special circumstances. Comment: One commenter asked "Does permanent MN transfer from one facility to another. If so, how will a facility be notified of this?" Response: Section 19.1612(a)(2)(B) states that an individual who is being admitted and has previously attained a MN requires only the submission of an abbreviated PC-4 which indicates that a MN does travel from facility to facility. In response to this comment, DHS is adopting sec.19.1612(a)(3) with a change to read, "If the MNR indicates a medical necessity for NF care, the department will notify the facility of the permanent MN. This notification becomes a part of the resident's permanent medical record." Commenter: One commenter requested a change in the wording to sec.19.1612 (a) (4). Response: DHS is adopting the section with a change to read "After the establishment of permanent MN, residents with a 211 TILE require no further assessment unless there is a change in their condition. All other TILE levels require a PC-4 review every 180 days after the initial 120-day review." Comment: One commenter stated that the number of Purpose Codes "R" should be increased. Response: DHS will not increase the number of Purpose Code Rs, but has made an adjustment to allow more flexibility in the process. Comment: One commenter stated that "We oppose the notification of TILE changes by FAX." Response: The Utilization Assessment and Review team sent letters to each facility explaining the need to be cost effective and requesting permission to FAX. Only with the permission of the facility do we FAX to them; all others receive certified mail. Comment: One commenter stated that "The rules don't specify how far back nurse reviewers can go in their review." Response: In practice, nurse reviewers go back no further than 12 months. In response to this comment, DHS is adopting subsection (b) with changes as follows: "DHS nurse reviewers conduct desk reviews and in-depth, on-site reviews of samples of Texas Nursing Facility CARE forms completed by providers to verify TILE and medical necessity information. Forms which have been expired for over 12 months will not be reviewed." Comment: One commenter proposed a wording change to sec.19.1612(b)(3). Response: DHS believes the language as proposed is clear. Comment: One commenter proposed a change to wording at sec.19.1612(c)(2). Response: DHS is adopting the paragraph with changes, beginning with the second sentence, to read, "If accuracy of forms is still at an unacceptable level at the end of 60 days, DHS may give a one-time, 30-day extension, if the facility has shown an attempt to improve their accuracy. If the forms are not accurate at the end of 90 days....." Comment: One commenter asked "How will the unacceptable levels of improvement at sec.19.1612(d)(1)(A) be determined?" Response: The decision is made at the state office level. DHS does not favor publishing percentages here because that could lead to punishing providers who are making a strong effort to improve. DHS works conscientiously with providers to end monitoring and compliance actions. Comment: One commenter asked "Are all residents reassessed according to sec.19.1612(d)(2) or is it only those whose assessments are due?" Response: All residents are reassessed when a facility is placed on compliance due to a continuing problem with the accuracy levels of TILE assessments. Comment: One commenter asked "How is a TILE reset and a resident readmitted to the vendor payment system?" Response: This is addressed in sec.19.1613 of the new MN rules which went into effect on September 1, 1994. Comment: One commenter asked "Where were the regulations for retroactive MN and TILE moved?" Response: These regulations were not moved. They can be found at sec.19.1613. A public hearing on the UAR rules was requested by the Texas Health Care Association and was held September 6, 1994. Eight people testified; five were physical therapists, representing themselves or their corporations, and three were provider representatives. Written comments from two nursing facility owners and one advocate organization were also received. The physical therapists' comments concerned problems they perceive regarding reviews of TILE 202 for rehabilitative and restorative care. The issues they raised are only minimally affected by the UAR rules. DHS has made a commitment to them to further explore their concerns and, if merited, return to the Board with proposed rule changes. The comments of the provider representatives and nursing facility owners were related to four areas. The first area, the difficulty nurse assessors have experienced obtaining the required training, is addressed earlier in the comments. The second concern was that the sample of residents whose assessments are reviewed is not statistically accurate. DHS never intended that the sample be statistically representative of the total nursing facility population. The sample is targeted to the TILEs most likely to contain errors costing DHS large amounts of overpayments. DHS's limited resources would be poorly used reviewing TILEs with histories of low error rates. The third issue raised by the providers was their perceived lack of due process. Under the current system, when a TILE payment is identified as having been overpaid, it is immediately recouped. An appeal process is available, and if the initial decision is overturned, payment to the facility is adjusted accordingly. The industry wants the identified overpayment to continue until all appeals are exhausted. DHS's position is that the provider has an opportunity at the exit conference to present additional documentation or explanation as to why the TILE should remain in effect. If the TILE reviewers still consider the TILE level to be erroneous, they recoup it at that time and not months later, when all appeals have been exhausted. The fourth industry concern was that the proposed rules, regarding the corrective actions of monitoring and compliance, are already being implemented. DHS's position is the proposed rules merely add clarifying language to explain these actions, which DHS already has the authority to institute. The monitoring procedure is an educational program for facilities needing additional, intensive instruction on the assessment process. Compliance is a corrective action for administrative contract violations, found in the current rules at sec.19.2128. The proposed rules further delineate the process. When compliance has been instituted, it has proven to be extremely effective. Facilities' error rates have been markedly reduced, and provider response has been favorable, even under circumstances which began adversarially. The comments from the advocate organization were in support of the proposed rule changes and stated that the $9 million recouped each year by the UAR unit would help to fund the nurse aide-to-resident ratio for which they are lobbying. Subchapter Q. Medical Review and Re-evaluation 40 TAC sec.19.1612 The new section is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs and under Texas Civil Statutes, Article 4413 (502), sec.16, which provides the Health and Human Services Commission with the authority to administer federal medical assistance funds. The new section implements the Human Resources Code, sec. sec.32.001-32.042. sec.19.1612. Texas Index for Level of Effort (TILE) Assessments. (a) Recipient assessment. Facility nurse assessors assess recipients for TILE determination by completing Texas Nursing Facility CARE forms. These assessments establish TILE classifications as described in paragraphs 1 through 8 of this subsection. Effective April 1, 1995, nurse assessors must have completed a Texas Department of Human Services (DHS) TILE training course and must be registered with the National Heritage Insurance Company (NHIC). (1) Preadmission assessments (Purpose Code 1 and Purpose Code P) do not establish a TILE classification. (2) Admissions assessments establish TILE classifications as follows: (A) If the resident has not previously attained a permanent medical necessity, the nurse assessor submits an admission assessment (Purpose Code 2) within 20 calendar days of admission, as provided in sec.19.1603 of this title (relating to Definition of the Review Process). The admission assessment establishes a medical necessity and a TILE classification for 120 days. (B) If the resident has previously attained a permanent medical necessity, the admission assessment is completed on an abbreviated form (Purpose Code 4) which sets TILE only. (3) One medical necessity review (MNR) (Purpose Code 3) is required 120 days after the effective date of the admission assessment (Purpose Code 2). If the MNR indicates a medical necessity for nursing facility care, DHS will notify the facility of the permanent MN. This notification becomes a part of the resident's permanent medical record. A MN will be lost only if a resident is discharged to home for over 30 days. The MNR may also establish a new TILE classification. (4) After the establishment of permanent MN, residents with a 211 TILE require no further assessment unless there is a change in their condition. All other TILE levels require a PC-4 review every 180 days after the initial 120-day review. (5) If a recipient's medical condition deteriorates to the extent that he qualifies for a different TILE, the provider may submit an off-cycle assessment (Purpose Code R). However, only two off-cycle assessments for any one recipient are permitted per year, one for the period from January through June and one from July through December. Purpose Code R must be used for all off-cycle assessments, including those that occur when an individual returns from a hospital. The assessment sets a new schedule for submission of forms if permanent medical necessity has been achieved. Prior to permanent MN, the Purpose Code R will not set a new schedule for submission of forms. (6) A CARE form may be submitted for the purpose of allowing a provider to correct errors previously made in the assessment portion of the forms (Purpose Code U, Items 30,31, and 50-99). This does not change the schedule for submission of forms or necessarily change the TILE group. Purpose Code U corrections must be submitted within 60 days from the date of assessment. Request for Purpose Code U changes after the 60 days will not be accepted. (7) If a recipient experiences a significant change related to mental illness, mental retardation, and/or a related condition which indicates that the recipient might benefit from active treatment, an off-cycle request for a recipient PASARR review must be submitted to the DHS Long Term Care Regulatory Department using a CARE form (Purpose Code F). (8) A facility may submit a request for retroactive payment (Purpose Code E) in the following instances: (A) when a facility provides care for a recipient for a period of time not covered by an effective MN determination at admission or by assessment (CARE) forms between reviews (see sec.19.1613 of this title (relating to Reconsideration of Medical Necessity Determination and Effective Dates)); or (B) if a recipient is found to be otherwise eligible for Medicaid for the three months prior to the month of his date of application for Medicaid assistance (see sec.19.1608 of this title (relating to Retroactive Medical Necessity Determinations)). (b) Review and appeal of case-mix assessments. DHS nurse reviewers conduct desk reviews and in-depth, on-site reviews of samples of Texas Nursing Facility CARE forms completed by providers to verify TILE and medical necessity information. Forms expired over 12 months will not be reviewed. (1) When a DHS nurse reviewer determines that the TILE classification or permanent medical necessity determination is not substantiated and/or does not accurately reflect the recipient's status, the reviewer will discuss the error and propose corrections with facility staff and make appropriate corrections. The facility administrator will be notified of TILE changes by certified mail or by FAX. (A) DHS recoups funds previously paid to the provider under incorrect TILE classification. DHS pays the nursing facility any increase due to a change in TILE classification. (B) The change in TILE classification and per diem rate is effective retroactively to the "effective date" of the assessment reviewed. (C) The change in medical necessity determination is effective on the date of the review. If discharge results, the procedures in sec.19.302 of this title (relating to Transfer and Discharge) must be followed. (2) If a DHS nurse reviewer and a facility nurse assessor are unable to agree about an assessment, the facility nurse assessor requests an informal review by a DHS nurse supervisor. If the provider disagrees with the findings of the nurse supervisor, the provider may initiate a formal appeal, as stated in Chapter 79, Subchapter Q, of this title (relating to Contract Appeals Process) by submitting a request to the Director, Hearings Department, Mail Code W-613, Texas Department of Human Services, P.O. Box 149030, Austin, Texas 78714-9030. The TILE classification and associated per diem rate specified by the DHS nurse reviewer remain in effect during any period of informal review or formal contract appeal. If the informal review or contract appeal process establishes that DHS has changed a TILE classification in error, DHS corrects the error retroactively. (3) DHS nurse reviewers notify administrators in advance of their on-site visits regarding the recipients whose medical records will be reviewed, the time period covered by the review, the parts of the record to be reviewed, and the accommodations necessary for the review. If the nurse reviewers are prevented from conducting the review, TILE rates on the recipients chosen for review will be lowered to the default TILE rate until the review can be accomplished. (c) Monitoring. TILE error rates which the department finds unacceptable may result in a facility's undergoing a monitoring period. Decisions to institute monitoring will be made by the Utilization and Assessment Review (UAR) staff in the central office. (1) During the monitoring period, facilities must submit all Texas Nursing Facility CARE Forms to DHS nurse reviewers. Forms may not be submitted to the National Heritage Insurance Company (NHIC) either electronically or by mail. (2) The length of the monitoring period is 60 days. If accuracy of forms is still at an unacceptable level at the end of 60 days, DHS may give a one-time, 30-day extension, if the facility has shown an attempt to improve their accuracy. If forms are not accurate at the end of 90 days, DHS takes action as outlined in sec.19.2207 of this title (relating to Administrative Contract Violations). (d) Compliance. (1) A facility will be placed on compliance, following the procedures outlined in sec.19.2207 of this title (relating to Administrative Contract Violations). A decision to place a facility on compliance will be made by UAR staff in the central office. Compliance may result when a facility has a high error rate on the current review and one of the following: (A) an unacceptable level of improvement by the end of a monitoring period; (B) lack of documentation regarding key assessment items; (C) a history of noncompliance; (D) medical records which contain alterations in areas designed to lower the TILE level and increase the payment. (2) New assessment forms on all recipients not in the original review must be submitted to DHS nurse reviewers. Facilities may not submit forms to NHIC electronically or by mail. (3) The facility nurse assessor must attend a DHS TILE training course within 60 days of the beginning of the compliance period. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on October 11, 1994. TRD-9449316 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: November 15, 1994 Proposal publication date: May 20, 1994 For further information, please call: (512) 450-3765 Subchapter S. Reimbursement Methodology for Nursing Facilities 40 TAC sec.19.1807 The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs and under Texas Civil Statutes, Article 4413 (502), sec.16, which provides the Health and Human Services Commission with the authority to administer federal medical assistance funds. The amendment implements the Human Resources Code, sec. sec.32.001-32.042. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on October 11, 1994. TRD-9449317 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: November 15, 1994 Proposal publication date: May 20, 1994 For further information, please call: (512) 450-3765