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 IV. Office of the Secretary of State CHAPTER 81.Elections Voter Registration 1 TAC sec.sec.81.15-81.17 The office of the Secretary of State adopts amendments to sec.sec.81.15-81.17, concerning disbursement of funds under the Texas Election Code, Chapter 19. The sections are adopted without changes to the proposed text as published in the July 18, 1997, issue of the Texas Register (22 TexReg 6723). The amendments will allow for a more efficient operation of the Chapter 19 fund for county voter registrars and for the Office of the Secretary of State. No comments were received regarding adoption of the amendments. The amendments are adopted under the Texas Election Code, sec.31.003 and sec.19.002(b), which provide the Secretary of State with the authority to obtain and maintain uniformity in the application, interpretation, and operation of provisions under the Texas Election Code and other election laws. In performing such duties the Secretary of State has authority to prepare detailed and comprehensive written directives and instructions based on laws consistent with the Election Code. 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. Issued in Austin, Texas, on August 18, 1997. TRD-9710908 Clark Kent Ervin Assistant Secretary of State Office of the Secretary of State Effective date: September 8, 1997 Proposal publication date: July 18, 1997 For further information, please call: (512) 463-5650 TITLE 25. HEALTH SERVICES PART I. Texas Department of Health CHAPTER 29.Purchased Health Services SUBCHAPTER G.Hospital Services 25 TAC sec.29.606 On behalf of the State Medicaid Director, the Texas Department of Health (department) submits an adopted amendment to sec.29.606, concerning reimbursement methodology for inpatient hospital services without changes to the proposed text as published in the May 20, 1997, issue of the Texas Register (22 TexReg 4345), and therefore the section will not be republished. The section as amended clarifies the definition of a "new" hospital to specify that only a hospital that has been substantially constructed within the last five years of the effective date of the prospective rate period is considered a new hospital; clarifies the method for calculating the standard dollar amount to include the cost of living update, and include treatment of data relating to acquisitions, mergers, buyouts, and correction of errors in calculation of standard dollar amounts; and modifies the reimbursement for direct graduate medical education costs. The amendment clarifies department policies relating to reimbursement methodology for inpatient hospital services. No comments were received regarding the proposal during the comment period. Although no comments were received, the department made minor editorial changes for format purposes. This amendment is adopted under the Human Resources Code, sec.32.021 and Government Code sec.531.021, which provides the Health and Human Services Commission with the authority to adopt rules to administer the state's medical assistance program and is submitted by the Texas Department of Health under its agreement with the Health and Human Services Commission to operate the purchased health services program and as authorized under Chapter 15, sec.1.07, Acts of the 72nd Legislature, First Called Session (1991). sec.29.606.Reimbursement Methodology for Inpatient Hospital Services. (a) Introduction. Except as otherwise specified in subsection (q) of this section, the Texas Medical Assistance Program (Medicaid) reimburses hospitals, except in-state children's hospitals, for covered inpatient hospital services using a prospective payment system. In-state children's hospitals are reimbursed for covered inpatient hospital services using the methodology described in subsection (o) of this section. For hospitals other than in-state children's hospitals, the department or its designee groups hospitals into payment divisions using the average base year payment per case in each hospital after adjusting each hospital's base year payment per case by a case mix index, a cost-of-living index, and a budgetary reduction factor of 10%. The budgetary reduction factor for admissions occurring in state fiscal year 1990 (September 1, 1989 through August 31, 1990) is 7.0% and the budgetary reduction factor for admissions occurring in state fiscal year 1991 (September 1, 1990 through August 31, 1991) is 5.5%. For admissions occurring in state fiscal year 1992 (September 1, 1991 through August 31, 1992) and subsequent state fiscal years, a budgetary reduction factor is not applied. The payment divisions are separated into $100 increments. If a payment division has less than ten observations for Medicaid data, the department or its designee considers that payment division to be statistically invalid. Hospitals within that payment division are placed into the nearest valid payment division. (b) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (1)-(7) (No change.) (8) New hospital - A facility that has been in operation under present and previous ownership for less than three years and that initially enrolls as a Title XIX provider after the current base year. A new hospital must have been substantially constructed within the five previous years from the effective date of the prospective rate period. (9)-(10) (No change.) (c) Calculating relative weights and standard dollar amounts. The department or its designee uses recent Texas claims data to calculate both the relative weights and standard dollar amounts. A relative weight is calculated for each DRG and applied to all payment divisions. A separate standard dollar amount is calculated for each payment division. Except for border hospitals with a Texas Medicaid provider number beginning with an H and out-of-state children's hospitals, the department or its designee uses the overall arithmetic mean base year payment per case, including the cost of living update as specified in subsection (n) of this section, as the standard dollar amount to reimburse out-of-state hospitals. The overall arithmetic mean base year payment per case, including the cost of living update as specified in subsection (n) of this section, is also used as the standard dollar amount to reimburse military hospitals providing inpatient emergency services for admissions on or after October 1, 1993. The calculation of the standard dollar amount for out-of-state children's hospitals is described in subsection (r) of this section. Except for new hospitals, the overall arithmetic mean base year payment per case, including the cost of living update as specified in subsection (n) of this section, is also used as the standard dollar amount to reimburse hospitals that initially enroll as a Title XIX provider after the current base year. The standard dollar amount for new hospitals is the lesser of the overall arithmetic mean base year payment per case plus three percentile points, including the cost of living update as specified in subsection (n) of this section, or the hospital's average Medicaid cost per Medicaid discharge based on the tentative or final settlement, if applicable, of the hospital's first 12-month cost reporting period occurring after the hospital's enrollment as a Title XIX provider. In the event that the new hospital is a replacement facility for a hospital that is currently enrolled as a Title XIX provider, the hospital is reimbursed by using either the standard dollar amount of the existing provider or the standard dollar amount for new hospitals, whichever is greater. The use of the hospital's average Medicaid cost per Medicaid discharge, after adjusting for case-mix intensity, as its standard dollar amount is applied prospectively to the beginning of the next prospective year and is applicable only if the tentative or final settlement is completed and available at least 60 days before the beginning of the prospective year. The hospital's Medicaid costs are determined using similar methods and procedures used in Title XVIII of the Social Security Act, as amended, effective October 1, 1982, by Public Law 97-248. When two or more Title XIX participating providers merge, the department or its designee combines the Medicaid inpatient costs, as described in this subsection, of each of the individual providers to calculate a standard dollar amount, effective at the start of the next prospective period, to be used to reimburse the merged entity. Acquisitions and buyouts do not result in a recalculation of the standard dollar amount of the acquired provider unless acquisitions or buyouts result in the purchased or acquired hospital becoming part of another Medicaid participating provider. When the department or its designee determines that the department or its designee has made an error that, if corrected, would result in the standard dollar amount of the provider for which the error was made changing to a new payment division, either higher or lower, the department or its designee moves the provider into the correct payment division, and the department or its designee reprocesses claims paid using the initial, incorrect standard dollar amount that was in effect for the current state fiscal year by using the existing standard dollar amount of the payment division in which the provider was moved. In the determination of the corrected payment division, the department or its designee uses the relative weights that are currently in effect for the state fiscal year. The correction of this error condition only applies to the current state fiscal year payments. No corrections are made to payment rates for services provided in previous state fiscal years. If a specific DRG has less than ten observations for Medicaid data, the department or its designee uses the corresponding Medicare relative weight, except for DRGs relating to organ transplants. Relative weights for organ transplant DRGs with less than ten observations may be developed using Medicaid-specific data. The relative weights include organ procurement costs for both solid and nonsolid organs. The department or its designee makes no distinction between urban and rural hospitals and there is no federal/national portion within the payment. (d) Add-on payments. There are no separate add-on payments. The department or its designee: (1) (No change.) (2) includes the cost of indirect medical education in the standard dollar amount for each payment division; (3)-(4) (No change.) (e)-(m) (No change.) (n) Adjustments to base year claims data. (1) (No change.) (2) The department or its designee updates the standard dollar amount each year for each payment division by applying a cost-of-living index to the standard dollar amount established for the base year. The index used to update the standard dollar amounts is the greater of: (A) the Health Care Financing Administration's (HCFA) Market Basket Forecast (PPS Hospital Input Price Index) based on the report issued for the federal fiscal year quarter ending in March of each year, adjusted for the state fiscal year by summing one-third of the annual forecasted rate of the index for the current calendar year and two-thirds of the annual forecasted rate of the index for the next calendar year; or (B) (No change.) (o) Reimbursement to in-state children's hospitals. The department or its designee reimburses in-state children's hospitals under similar methods and procedures used in the Social Security Act, Title XVIII, as amended, effective October 1, 1982, by Public Law 97-248, except for the cost of direct graduate medical education. The department or its designee establishes target rates and stipulates payments per discharge, incentives, and percentage of payments. The department or its designee uses each hospital's 1987 final audited cost reporting period (fiscal year ending during calendar year 1987) as its target base period. The target base period for hospitals recognized by Medicare as children's hospitals after the implementation of this subsection is the hospital's first full 12-month cost reporting period occurring after its recognition by Medicare. The department or its designee annually increases each hospital's target amount for the target base period by the cost-of-living index described in subsection (n) of this section. The department or its designee selects a new target base period at least every three years. The department or its designee bases interim payments to each hospital upon the interim rate derived from the hospital's most recent tentative or final Medicaid cost report settlement. If a Title XIX participating hospital is subsequently recognized by Medicare as a children's hospital after the implementation of this subsection, the hospital must submit written notification to the department or its designee and include adequate documentation and claims data. Upon receipt of the written notification from the hospital, the department or its designee reserves the right to take 90 days to convert the hospital's reimbursement to the reimbursement methodology described in this subsection. (p)-(r) (No change.) (s) Reimbursement of inpatient direct graduate medical education (GME) costs. The Medicaid allowable inpatient direct graduate medical education cost, as specified under similar methods and procedures used in the Social Security Act, Title XVIII, as amended, effective October 1, 1982, by Public Law 97-248, is calculated for each hospital having inpatient direct graduate medical education costs on its tentative or final audited cost report. Those inpatient direct medical education costs are removed from the calculation of the interim rate described in subsection (b)(7) of this section and are used in the calculation of the provider's standard dollar amount described in subsection (c) of this section. Those allowable inpatient direct graduate medical education costs for services delivered to Medicaid eligible patients with inpatient admission dates on or after September 1, 1997, will be subject to the cost determination and settlement provisions as described in this subsection. No Medicaid inpatient direct graduate medical education cost settlement provisions are applied to inpatient hospital admissions prior to September 1, 1997. Providers with Medicaid allowable inpatient direct graduate medical education costs as described in this subsection will receive an interim monthly payment based upon one-twelfth of their inpatient direct graduate medical education cost from their most recent tentative or final audited cost report. The interim payment amount as described in this subsection will not be updated during the state fiscal year to reflect new tentative or final cost report settlements. These payments are subject to settlement at both tentative and final audit of provider cost reporting periods covering the state fiscal year. 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. Issued in Austin, Texas, on August 11, 1997. TRD-9710601 Susan K. Steeg General Counsel Texas Department of Health Effective date: September 2, 1997 Proposal publication date: March 18, 1997 For further information, please call: (512) 458-7236 CHAPTER 34.Waiver Program for Medically Dependent Children On behalf of the State Medicaid Director, the Texas Department of Health (department) submits for adoption the repeal of sec.sec.34.1-34.4, and new sec.sec.34.1-34.7, concerning the operation of the Medically Dependent Children Program (MDCP). New sec.sec.34.2, 34.3, 34.5, and 34.6 are adopted with changes to the proposed text as published in the March 18, 1997, issue of the Texas Register (22 TexReg 2848). New sec.sec.34.1, 34.4, and 34.7 are adopted without changes and will not be republished. The repeal is adopted without changes, and therefore will not be republished. The MDCP waiver provides home and community-based services to Medicaid-eligible participants under a waiver authorized by the Social Security Act, sec.1915(c). Review by the Health Care Financing Administration (HCFA) as required for reauthorization of the MDCP waiver in 1996 indicated the necessity for rule revisions. First, the new MDCP service array no longer includes skilled nursing services in order to eliminate duplication of the private duty nursing services available through the Texas Health Steps Comprehensive Care Program (CCP) and the skilled nursing services available as a home health services benefit through the Medicaid State Plan. Second, the new sections enhance the waiver service array by including respite, adjunct supports, minor home modifications, and adaptive aids. The expanded array of respite providers will include nurses. Third, the new sections more clearly define the roles and responsibilities of parents/primary caregivers in planning for and documenting their contribution to the care of MDCP participants. Finally, the new sections reflect the program's mandate to operate cost-effectively within its appropriated budget while serving the maximum number of children. The repeal of sec.sec.34.1-34.4 will enable the department to administer the MDCP more cost-effectively in conformity with the Texas waiver as reauthorized by the Social Security Act, sec.1915(c), while also offering an expanded service array and service providers. New sec.34.1 defines the purpose of the MDCP. New sec.34.2 establishes a definitions section. New sec.34.3 describes MDCP eligibility criteria, establishes an annual cost allowance for program participants, defines the circumstances under which exceptions to the annual cost allowance may be made, and establishes procedures for deinstitutionalization of persons under age 21 who are residents of Texas nursing facilities. New sec.34.4 describes settings in which MDCP services may not be provided. New sec.34.5 describes the responsibilities of parents or caregivers when MDCP services are available, and defines the MDCP service array. The section also establishes procedures for transition by participants from the current MDCP service array to the expanded array. New sec.34.6 establishes reimbursement methodologies for each category of MDCP provider. New sec.34.7 authorizes the department to implement cost control measures if MDCP expenses and budgetary constraints indicate that cost reduction is necessary. Changes made to the proposed text result from comments received during the comment period. The details of the changes are described in the summary of comments that follow. Other minor editorial changes were made for clarification purposes. The following comments were received concerning the proposed rules. Following each comment is the department's response and any resulting change(s). Comment: One commenter asked whether the projected $1 million savings in the fiscal note took into account any impact on CCP. Response: The department responds that the fiscal analysis addressed the impact on only MDCP of restructuring its service array. Comment: Two commenters expressed concern about care planning coordination with CCP and other resources in the care planning process. Response: The department responds that MDCP has implemented a comprehensive care planning process in order to coordinate all available resources which could be of assistance to MDCP families. Section 34.5(a)(4) requires that "Waiver services will be coordinated with other available resources, including Medicaid state plan services." Comment: One commenter asked whether HCFA was aware of the proposed changes, particularly relating to basic child care, adjunct supports, and family responsibility. Response: The department has kept HCFA informed of the proposed changes to the program throughout the development process. Several changes result from HCFA's review of MDCP and subsequent direction to ensure compliance with federal requirements. Comment: One commenter recommended that MDCP provide a method to assure access to services for children who lose medical necessity but still have disability- related needs, by grandfathering or an interagency agreement. Response: The department disagrees with the commenter because medical necessity is and has always been a requirement for eligibility for services under the MDCP and is an integral part of the federal regulations governing such waivers. However, assistance with transition to other resources is a part of the comprehensive care planning service provided by MDCP social services program consultants. Comment: One commenter recommended that MDCP cover the additional costs of medical supplies for eligible children as an additional service. Response: The department responds that MDCP participants are eligible for Medicaid and that medically necessary medical supplies are covered under the CCP, which is a Medicaid state plan service. Comment: One commenter recommended that the department more actively support the deinstitutionalization of children currently living in nursing facilities. Response: The department agrees with this recommendation and has met with representatives from the Texas Department of Human Services (DHS) to discuss redirecting DHS long-term care institutional payments for children in nursing facilities to allow those children to receive MDCP services at home. Section 34.3(c) establishes procedures for deinstitutionalization. Section 34.2 includes a new definition of the term "qualified individual," which is used in sec.34.3(c). Implementation of the plan for deinstitutionalization of children in nursing facilities, which is limited in scope, is contingent upon continued collaboration with DHS. The successful outcome of that collaboration will be an agreement that both supports deinstitutionalization and ensures there will be no negative fiscal impact on the MDCP budget. Further, implementation of this plan will ensure that no other child on the MDCP waiting list will be displaced through these actions. Comment: Concerning reimbursement, two commenters recommended that MDCP should use a voucher system to enable MDCP families to pay providers for services directly, thereby affording families more flexibility in accessing and arranging services. Response: The department responds that a voucher system is not an available mechanism for providing services at this time. Medicaid law requires the department to reimburse only providers for services and prohibits payment of Medicaid funds directly to recipients or their families for the purchase of services. Comment: Concerning sec.34.2 relating to definitions, department staff stated that the phrases "care planning process" and "Health Care Financing Administration" are both used in the rules several times and should be separately defined. Response: The department agrees and has amended the section accordingly. Comment: Concerning the definition of "adjunct supports" in sec.34.2, department staff commented that some MDCP participants are young adults who could benefit from disability-related services which support participation in post-secondary education or independent living, or a transition to an independent living situation, but are not available from other sources. Response: The department agrees, and the definition of "adjunct supports" has been revised accordingly. Section 34.5(b)(2) also has been revised, and sec.34.6(c)(8)(D) has been added to incorporate the expanded definition of adjunct supports. Comment: Concerning sec.34.2 relating to the definition of "respite", one commenter stated that the rules should not use the word "respite" because the service is a necessity. Response: The department agrees in part with the commenter, that respite is a necessity for MDCP families because it allows relief for primary caregivers from the extraordinary demands of caring for a child with disabilities. The department's acknowledgment of the value of respite is reflected in the expansion of options in provider types and in the settings where respite will be available. However, inclusion in the rules of a definition of this important concept is necessary, and no changes have been made to the section. Comment: Concerning sec.34.2 relating to the definition of "primary caregiver", one commenter asked for clarification of the statement that the primary caregiver "does not routinely delegate caregiving responsibilities on a 24-hour basis to paid providers." Response: The department agrees that the meaning of "routinely" should be clarified and has amended the definition of "primary caregiver" in sec.34.2 accordingly. Comment: Concerning sec.34.3 relating to participant eligibility criteria, department staff recommended that reasons for which MDCP services may be reduced should be stated. Response: The department agrees, and sec.34.3(i) has been added. Comment: Concerning sec.34.3(b)(2) relating to eligibility for MDCP ending at age 21, two commenters expressed concern that services should not end or be reduced, or that there should be better services and planning for MDCP participants who reach age 21. Response: The department responds that transition planning is a part of the comprehensive care planning function performed by MDCP social services program consultants, and MDCP has established a formal agreement with the Community Based Alternatives (CBA) program at DHS to assist MDCP participants at age 21 to obtain services from CBA, if eligible. Comment: Concerning sec.34.3(b)(5) relating to medical necessity criteria for MDCP, one commenter recommended that criteria for medically necessary CCP private duty nursing should be the same as the medical necessity criteria for MDCP services in order to simplify the process of applying for and receiving CCP nursing hours. Response: The department acknowledges the importance of simplifying application procedures where possible and of supporting the efforts of families to access services such as CCP private duty nursing. The efforts of MDCP social services program consultants during the last year have been focused on coordination of access and care, and many families have obtained private duty nursing and other services outside of the department for the first time. However, the department disagrees with the commenter's recommendation to make the criteria for medically necessary private duty nursing the same as the medical necessity criteria for MDCP eligibility. Children who meet the MDCP medical necessity criteria have a wide range of nursing needs. Some children require both a large number of hours of nursing support as well as services requiring high levels of technical and professional competence, while others have less intense and more intermittent nursing needs. The CCP private duty nursing service is intended to serve only those children with high level nursing needs that are continuous, require ongoing skilled observation and judgment, and frequent skilled intervention. Those services would not be appropriate for the full range of children served by MDCP. Additionally, changes in CCP policies and procedures are beyond the scope of MDCP rules. Comment: Concerning sec.34.3(b)(8) relating to annual cost allowances being based on the child's Texas Index for Level of Effort (TILE) instead of the current $30,000 annual cap for all participants, two commenters felt that the proposed cost allowances were too low and would reduce the amount of nursing service available to participants, by as much as half in some cases. Response: The department responds that this proposal will allocate funds responsibly and equitably based upon an objective assessment of the participant's medical condition and functional care needs. Through the comprehensive care planning process, MDCP staff will work closely with each family to ensure that the MDCP child has access to medically necessary and appropriate services, including CCP private duty nursing and benefits available through Medicaid home health services. This activity began in October 1996 and has already resulted in many families gaining access to services they had not previously utilized. Additionally, the family and MDCP staff will plan collaboratively to ensure that the family is aware of options and strategies to maximize the supports available to them through the expanded MDCP service array and provider types. Through thoughtful and individualized planning, it is possible that some families who experience a reduction in their child's annual cost allowance will not experience an actual overall reduction in services, although some of their services may originate outside of the MDCP. Comment: Concerning sec.34.3(b)(8) relating to annual cost allowances, one commenter recommended that the department allow more flexibility to the cost allowances so that families who did not want to use services like home modifications, adaptive aids, host families, or camps could use more dollars for nursing services. Response: The department responds that the section has been amended to clarify that the costs of minor home modifications and adaptive aids are included in the annual cost allowance and are not additional funds available to the family beyond the annual allowance. Comment: Concerning sec.34.3(b)(8) relating to annual cost allowances, one commenter recommended that the department ask the legislature to use surplus state funds designated for health services to serve more children on MDCP. Response: The department did request additional funds to serve additional children from the 75th Legislature. Funding for 64 new slots was allocated for Fiscal Years 1999-2000. Comment: Concerning sec.34.3(b)(8) relating to annual cost allowances, one commenter who is the parent of an MDCP participant supported use of the annual cost allowance based on the child's level of care. Response: The department agrees and recommends adoption of the proposed annual cost allowances based on the TILE. Comment: Concerning sec.34.3(b)(8) relating to the annual cost allowance, department staff expressed concern that since the TILE-based payment rates generally increase every year, and sometimes more than once per year, this could cause the MDCP to exceed its budget. Response: The department agrees and has amended the definition of "cost allowance" in sec.34.2 to state that the cost allowance is based on 63% of the annual amount assigned to the participant's TILE rate as of September 1, 1996. Comment: Concerning sec.34.3(b)(8) relating to the annual cost allowance, department staff recommended that the rules be revised to clarify the reasons that the department may deny requests for exceptions. Response: The department agrees and sec.34.3(b)(8) has been revised accordingly. Comment: Concerning sec.34.3(b)(8) relating to annual cost allowances, one commenter expressed concern that the TILE-based annual cost allowance addresses only the child's medical care needs and does not account for other factors that affect the child's or family's needs. Response: The department agrees that the TILE assessment is a method of determining the level of care needs based on the child's medical condition and functional care needs. The other factors affecting the child's and family's needs for assistance from the MDCP are an integral part of the comprehensive care planning process and service utilization process, which is developed in collaboration with the family. Additionally, sec.34.3(b)(8)(A)-(B) allow certain exceptions to the cost allowance for extenuating circumstances. Comment: Concerning sec.34.3(b)(8)(A)-(B) relating to exceptions to the annual cost allowance, two commenters recommended that the department expand or add additional exceptions to accommodate different, unexpected, and unpredictable illnesses of the child which require immediate intervention. Response: The department responds that all children participating in MDCP are subject to unexpected and unpredictable illnesses that could require immediate intervention. Granting an exception to the annual cost allowance for one participant on this basis would necessitate allowing an exception for every participant, which is not a fiscally feasible option. The participant's family and the MDCP social services program consultant are expected to collaboratively identify resources available to the child and plan to address each child's needs using those resources. Comment: Concerning sec.34.3(b)(9) relating to financial eligibility, one commenter recommended that the income limit for parents be raised so that more children can qualify for MDCP. Response: The department responds that if the child does not qualify for Medicaid outside the waiver because of the parents' income, the child's financial eligibility for MDCP is determined based on only the child's income and resources, not those of the family. Comment: Concerning sec.34.3(h)(2) relating to denial or termination of waiver eligibility, one commenter requested clarification of the "specified time frame," within which a participant's IPC must be returned, and asked whether it would be established by the MDCP social services program consultant. Response: The department has amended sec.34.3(h)(2) to state a definite time period within which the IPC must be returned. Comment: One commenter recommended that the department delete sec.34.5(a)(1) and other references to the role and responsibility of parents. Response: The department disagrees with the commenter because recognition of the contribution of the parents to the care of their children is a fundamental component of the department's strategy for implementing the MDCP. HCFA also has recommended that the role of parents in the care of their children be clearly stated in the program's policies. Section 34.5(a) regarding the role of parents has been revised for clarification purposes. Also, sec.34.3(h)(3) has been revised and sec.34.3(h)(5) has been added to recognize parents' role in implementing the IPC. Comment: Concerning sec.sec.34.5(a)(1), 34.5(a)(2), and 34.5(a)(5) relating to the parents' role and responsibility, two commenters recommended that these sections be reworded to remove the implication that parents do not contribute enough to the care of their children. Response: The department agrees and has modified the language in these sections to acknowledge more clearly the contribution of MDCP parents to the care of their children. Comment: Concerning sec.sec.34.5(a)(1), 34.5(a)(3), and 34.5(a)(4) relating to the relationship of waiver services to other sources of caregiving and support, one commenter expressed concern that these other resources may be available only to some families or only in theory, and recommends that the department assure that these multiple resources are available as part of a package of services for MDCP participants. Response: The department disagrees with the commenter's recommendation that the department should assure that other services are available, because the department does not control the funding or the eligibility criteria for all such programs. However, the department has made a strong commitment to coordination of resources, in collaboration with the MDCP family, as a part of the comprehensive care planning process. The department has modified sec.34.5(a)(3) to clarify that families must use other available resources first. Comment: Concerning sec.34.5(a)(5)(A) relating to the cost of basic child care, two commenters expressed concern that paying for all or a portion of child care will be especially difficult for single parents or should not be required at all. Response: The department responds that since MDCP is a Medicaid program and the cost of child care is not an allowable benefit under Medicaid, MDCP cannot reimburse families for those costs in any event. MDCP staff will work collaboratively with families to identify options and strategies to access available resources to help families meet their child care needs. In many situations, parents may incur no out-of-pocket costs for their child's basic child care. In all cases, families will receive advance notice of the opportunity to plan to address this issue. Comment: Concerning sec.34.5(a)(5)(A) relating to the cost of basic child care, one commenter asked whether families would be required to reimburse the department for basic child care costs. Response: The department responds that since the department does not pay for basic child care and families are responsible for the cost, no reimbursement to the department will be requested. Comment: Concerning sec.34.5(a)(5)(B) relating to the total parental contribution to child care, one commenter expressed concern that parents will still be expected to contribute monetarily to the cost of child care even when the parent arranges for free care for a portion of the work day. Response: The department responds that child care is not a Medicaid service. If child care services must be purchased for a portion of the work day, the parent will be responsible for the basic child care cost for that portion of the day. If a parent is able to secure child care without charge during the workday, the parent's responsibility for basic child care has been met. Comment: Concerning sec.34.5(a)(5)(B) relating to the total parental contribution to child care, three commenters recommended that the department should consider more than just the monetary contribution of the parents to the child's care. Response: The department responds that MDCP does consider the many ways, both monetary and nonmonetary, in which parents contribute to the care of their children. In recognition of the many aspects of parental contribution, MDCP offers a comprehensive array of services which, coupled with State Plan services, are available to provide emotional, psychological, physical, and financial relief to the families of MDCP participants. The total parental contribution to paid child care must include the basic cost of that care because child care is not a federally allowable Medicaid service. Comment: Concerning sec.34.5(b), relating to the waiver service array, two commenters expressed support for the addition of new services, including the provision of respite services. Response: The department agrees that the new service array will give families more choice in obtaining services that are appropriate for their children's needs. Comment: Concerning sec.34.5(b) relating to the waiver service array and providers of those services, two commenters expressed concern about the availability of various types of providers to meet the needs of families, particularly in rural areas, and recommended that the department provide lists of providers to families so they can access the expanded services. Response: The department agrees that families should receive lists of available providers in their areas of the state so that they can use the expanded services as appropriate to their needs. Lists of all enrolled providers are currently distributed and will continue to be available. Families may also identify additional providers, as long as they meet provider enrollment qualifications. The department is currently developing recruitment materials and a provider outreach campaign, which will include an open enrollment period to build a strong provider base prior to implementation of the new service array. Comment: Concerning sec.34.5(b)(1) relating to respite services, one commenter suggested that parents of MDCP children should be able to enroll as providers for other MDCP families, as host families, or attendants. Response: The department agrees in part with the commenter. MDCP families could be enrolled as MDCP providers as long as they meet applicable licensing or participation requirements, and they are not being reimbursed for care of their own child. Comment: Concerning sec.34.5(b)(1)-(2) relating to respite services and adjunct supports, one commenter stated that nurses and attendants are difficult to find. Response: The department agrees that in some areas of the state it is more difficult to find nurses or attendants than in other areas. However, MDCP has already enrolled many providers and is actively recruiting others in all parts the state. Comment: Concerning sec.34.5(b)(1) relating to respite services, five commenters expressed concern that since attendants are not able to provide all the services needed by some children, those participants will experience a reduction in available hours of service because of the higher cost of services if provided by nurses. Response: The department responds that no MDCP participant family will be forced to use a less costly provider or a provider who cannot meet the needs of the child. While some families may experience a reduction in services, in most cases such an impact can be avoided or minimized if families fully access the resources available to them through collaborative planning with MDCP staff. Attendants and a range of other providers will be available to families to expand their options for care within the participant's annual cost allowance. Comment: Concerning sec.34.5(b)(1) relating to respite services, one commenter stated that all MDCP participants need some skilled nursing services and asked how attendants could be used in accord with state licensing laws, because attendants would inevitably perform skilled tasks. Response: The department agrees that although all participants need some skilled nursing services, a licensed nurse is not needed to provide all services at all times, and some tasks may be delegated lawfully by a nurse to an attendant. The department will not authorize or reimburse an attendant to perform skilled tasks except under appropriate nursing delegation and supervision as required by law and only if appropriate for the child's needs. Comment: Concerning sec.34.5(b)(1) relating to respite services, two commenters recommended that parents should have the right to choose whether to use a nurse or an attendant. Response: The department agrees with the commenters and points out that the rules do not require the use of attendants, but offer that option to parents. Again, MDCP cannot pay any provider for services performed outside the scope of the provider's licensure or accreditation. Comment: Concerning sec.34.5(b)(1) relating to respite services, two commenters expressed support for the availability and use of attendants to provide services when a nurse is not needed. Response: The department agrees with the commenters and believes that this less costly option will be an appropriate and helpful option for some parents. Comment: Concerning sec.34.5(b)(1) relating to respite services, one commenter stated that parents and relatives have learned how to care for children with disabilities, and that other people besides nurses, such as attendants, can be trained to care for these children. Response: The department agrees. The rules permit parents to choose trained attendants within the scope of applicable licensure or accreditation requirements. Comment: Concerning the use of attendants under sec.34.5(b)(1), one commenter recommended that the department consider reimbursing attendants as respite providers who are not licensed under Home and Community Support Services Agencies (HCSSAs) in order to give families more flexibility. MDCP could develop basic participation standards for non-licensed attendants. Response: The department agrees and recognizes that this recommendation is consistent with MDCP goals to offer expanded respite options and increased flexibility. MDCP is currently developing participation standards for non- licensed attendants that will be consistent with state regulations and will be submitted to HCFA for approval. The rules have been revised to allow independently enrolled, non-licensed attendants to provide MDCP respite services and adjunct supports, contingent upon approval by HCFA of this provider type. Such attendants would not be reimbursed to perform nursing activities. Comment: Concerning the use of attendants under sec.34.5(b)(1), one commenter stated that attendants must be trained and asked who will provide the training. Response: The department agrees that attendants must be properly trained. The section requires that attendants function either under licensed HCSSAs or under participation standards for individuals as approved by HCFA. HCSSAs are required by their own licenses to provide training and supervision of their attendants. Independently enrolled attendants who meet participation standards will receive training and supervision from the parents who select them as providers. In either case, the department will emphasize the importance of parents training attendants to understand their child's specific needs. Comment: Concerning sec.34.5(b)(1) relating to respite services provided by accredited camps, one commenter asked what is meant by "accredited," and recommended that the rules specify the type of accreditation. Response: The department agrees and has amended sec.34.5(b)(1) to require that camps be accredited by the American Camping Association. Comment: Concerning sec.34.5(b)(1) relating to respite services provided by camps, child care facilities, group homes, and other new provider types, one commenter expressed concern about the monitoring and oversight of these providers. Response: The department agrees with the commenter concerning the need for monitoring and oversight of respite providers. Required licensure, accreditation, and/or participation should provide the necessary oversight, including a reasonable assurance of quality of care. Again, families may select any respite providers which fit their needs. Comment: Concerning the use of camps as providers of respite services under sec.34.5(b)(1), one commenter stated that there is a camp in the state that serves children with disabilities. Response: The department agrees. In fact, several camps in Texas serve children with disabilities, and the department is actively recruiting these camps to become providers of respite care for MDCP families who choose this option. Comment: Concerning sec.34.5(b)(1) relating to respite services, one commenter expressed concern that paying relatives as host families or as attendants through a Personal Assistance Services (PAS) provider may not be appropriate because families may abuse the opportunity. Response: The department responds that MDCP regional staff authorize providers to deliver services and monitor their compliance with department rules and policies. Section 34.6(b) prohibits payment of parents, primary caregivers, or members of a participant's household as MDCP provider(s) for that participant. Relatives other than the participant's parents or primary caregivers may be MDCP providers for the participant as long as they are not members of the participant's household. Comment: Concerning sec.34.5(b)(1) relating to respite services, three commenters recommended that host families providing short-term respite care should not be required to meet the requirements of a foster family and that the department could develop basic participation standards for these types of host families. Response: The department responds that sec.34.5(b)(1) has been amended to allow families who meet either foster family care standards or TDH-developed and HCFA- approved participation standards to serve as host families. This approach is consistent with the MDCP goal of expanding respite options for program participants. Comment: Concerning sec.34.5(b)(1) relating to respite services, four commenters expressed concern that independent licensed nurses, either registered nurses (RNs) or licensed vocational nurses (LVNs), might not be available as providers in the future. Response: The department responds that RNs will remain as independent providers. The continuation of independent enrollment for LVNs is being examined. Comment: Concerning sec.34.5(b)(2) relating to adjunct supports, five commenters expressed concern that many child care centers will not accept children with disabilities, there are no child care centers available in their area, or it may be impossible to find out-of-home child care for some children. Response: The department responds that although child care centers cannot legally refuse to serve children solely because of their disabilities, child care facilities in some communities are full and cannot accept any children. Such situations will be considered when policies and procedures are developed for provision of adjunct supports. Further, although MDCP does not require that children attend or participate in activities in a child care center, the availability of adjunct supports should encourage more day care providers of all types to serve children with disabilities. Comment: Concerning sec.34.5(b)(2) relating to adjunct supports, three commenters expressed concern that some children should not be in a day care setting because some child care providers which lack sufficient staff isolate children with disabilities, or because already medically fragile children could be exposed to other sick children in child care centers. Response: The department responds that the rules concerning adjunct supports enable but do not require MDCP families to utilize child care centers if not appropriate for their children. Also, MDCP policies and procedures to implement the provision of adjunct supports will include alternatives for a child whose condition precludes the utilization of group settings for child care. Comment: Concerning sec.34.5(b)(2) relating to adjunct supports, one commenter recommended that the rules should be expanded to discuss how adjunct supports would work with various child care settings. Response: The department responds that the principles underlying adjunct supports are the same for all child care settings, which may include but are not limited to licensed child care centers, registered family homes, schools used as after-school child care settings, a friend's or relative's home, or the participant's home. In each setting, if a provider is paid for basic child care, the parents will be responsible for the cost of that care. Disability-related services that are required to support the child in the given child care setting, that are not covered by the parents' basic child care payment and that are not available through other sources, may be considered for approval as adjunct supports. Comment: Concerning sec.34.5(b)(2) relating to adjunct supports, one commenter asked whether CCP private duty nursing rules would be changed to authorize private duty nursing hours for child care. Response: The department responds that these sections do not affect the rules for CCP private duty nursing. However, families approved for CCP private duty nursing already have considerable flexibility in determining when they will use those hours, as long as the medical necessity criteria are met. Comment: Concerning sec.34.5(b)(2) relating to adjunct supports and the use of child care, one commenter stated that Child Care Management System (CCMS) services and reimbursement are available only through age 12, and asked if MDCP participants who are eligible for Supplemental Security Income (SSI) will have to pay for their own child care when CCMS is no longer available. Response: The department responds that children with disabilities are allowed to use CCMS services until age 18, or through age 18 if the child is in high school and is expected to graduate before or during the month of his or her 19th birthday. Comment: Concerning sec.34.5(b)(2) relating to adjunct supports, one commenter expressed concern about the lack of a clear definition of "adjunct supports". Response: The department responds that the term "adjunct supports" includes a diverse array of disability-related services to support participation in child care services which should be individualized to each child's circumstances. The details of implementation will be addressed in program policies and procedures. Comment: Concerning sec.34.5(b)(2)(A) relating to what adjunct supports may include, one commenter asked for clarification of the phrase "typical child care provider". Response: The department has amended sec.34.5(b)(2)(A) to use the word "basic" rather than "typical." "Basic child care" is defined in sec.34.2. Comment: Concerning sec.34.5(b)(3)-(4), two commenters expressed support for the addition of home modifications and adaptive aids as part of the service array for MDCP. Response: The department agrees with the commenters and believes the addition of home modifications and adaptive aids will offer valuable options to families who need those services. Comment: Concerning sec.34.5(b)(3)(A) relating to home modifications, one commenter recommended that covered home modifications should not be limited to those listed in the rule. Response: The department disagrees because the home modifications listed in sec.34.5(b)(3)(A) include those routinely identified by MDCP families in surveys as most needed. Additionally, effective fiscal management of the program requires limitation of the types of home modifications that will be covered. Comment: Concerning sec.34.5(b)(3)(A)(i) relating to home modifications, one commenter recommended that the department remove the reference to "permanent ramps" and allow temporary ramps which are just as good, less expensive, and may be more viable for families who rent their homes. Response: The department agrees in part with the commenter and has amended the section to allow for permanent ramps as well as portable ramps not available from other resources or programs. Temporary ramps are already a covered service as medically necessary equipment through CCP. Comment: Concerning sec.34.5(b)(3)(B) relating to minor home modifications and sec.34.6(c)(9) relating to reimbursement rates for minor home modifications, one commenter suggested that permitting bids in one subsection and requiring bids in the other is internally inconsistent. Response: The department agrees and has amended sec.34.5(b)(3)(B) accordingly. Comment: Concerning sec.34.5(b)(3)(E) relating to alternative solutions for home modifications, one commenter recommended that the department modify the language to state that the department will approve the amount equivalent to the "least costly option of comparable functionality" instead of just the "least costly option." Response: The department agrees with the commenter and has amended the section accordingly. Comment: Concerning sec.34.5(b)(3)(F) relating to the lifetime allowance for home modifications, one commenter asked if a family would be able to access funds for additional home modifications if the family had already used the home modification service to modify a previous residence. Response: The department has amended sec.34.5(b)(3)(F) to clarify that the lifetime allowance is based on the participant's lifetime. As long as the maximum $7,500 allowance has not been expended during the participant's lifetime, whatever funds are available may be accessed for approved minor modifications to whatever residence the family occupies. Comment: Concerning sec.34.5(b)(3)(H) and sec.34.5(b)(4)(D) relating to the expenses for home modifications and adaptive aids, one commenter recommended that the department clarify that the costs of these services are included in the annual cost allowance. Response: The department agrees with the commenter and has amended the sections accordingly. Comment: Concerning sec.34.5(b)(4) relating to adaptive aids, one commenter asked whether a child who is eligible for the In-Home and Family Support Program would be able to obtain a van lift from that program. Response: The department responds that if MDCP participants become eligible for adaptive aids such as a van lift from MDCP, they will no longer be eligible for similar services through the In-Home and Family Support Program. Comment: Concerning sec.34.5(c) relating to the transition to the new service array, one commenter recommended that the department develop a simple education and training program for families and providers to ease the transition into the new services. Response: The department agrees that families and providers need time and information to prepare for the transition to new services. As stated in sec.34.5(c), participants will transition to the new service array at the time of their plan's annual renewal or upon interim reassessment. The department is currently developing information for distribution to families and providers. Some of this information will be distributed prior to implementation of the rules. Other information will be presented throughout the year on an individual basis as regional staff meet with families during the care planning process. In addition, the department plans to conduct extensive training for regional staff and to contract for provider recruitment and training prior to implementation of the rules. Comment: Concerning sec.34.6 relating to provider base and reimbursement methodology, one commenter recommended that the department contact nursing schools and special education programs to find individuals willing to be respite providers at lower reimbursement rates. Response: The department has received no indications that individuals affiliated with nursing schools or special education programs are willing to work for lower rates than any other individuals who must comply with applicable licensing or participation standards. The department pays less than the established reimbursement rate only if an individual agrees to accept the lower rate. Comment: Concerning sec.34.6(c)(1) relating to reimbursement for respite services provided by host families, one commenter asked whether host families, who will be reimbursed based on the nursing home TILE, will be expected to provide the services that are normally provided in a nursing home. If not, the commenter stated that reimbursement according to the TILE rate would not be cost effective. Response: The department responds that host families will not be required to provide the services normally provided in a nursing home. The role of a host family is to provide respite for the MDCP participant's family and to provide a safe environment for the MDCP participant in a setting outside the participant's home. This reimbursement rate ceiling is based on the costs of program services in the aggregate and not on the cost of specific services or specific participants. Comment: Concerning sec.34.6(c)(2) relating to reimbursement rates for respite services provided by nurses, three commenters expressed concern that the proposed rates seemed too high for HCSSAs, independent RNs, and eligible LVNs. Response: The department responds that the proposed rates are based on historical data from negotiated contract rates with nurses currently serving as providers in the MDCP. If the provider prefers or will accept a lower rate, the program can pay less than the established rate. Comment: Concerning sec.34.6(c)(2) relating to reimbursement rates for respite services, two commenters recommended lowering the rates paid to HCSSAs for respite services provided by LVNs. Response: The department disagrees with the commenters because the proposed rates are based on historical data. The family retains the ability to choose its provider(s). Comment: Concerning sec.34.6(c)(9) relating to reimbursement rates for minor home modifications, one commenter stated that the department should not be required to accept the lowest bid under all circumstances, and should be able to consider the capacity of bidders to perform quality work according to the participant's needs. Response: The department agrees and has amended the section accordingly. Comment: Concerning sec.34.7 relating to cost controls and cost savings, one commenter expressed concern about the implementation of cost controls and recommended that cost controls be implemented only if necessary. Response: The department agrees. Cost controls will be implemented only if "expenditures and budgetary considerations and constraints indicate that cost reduction is necessary." Comments were also received from the department's Advisory Committee on Children with Special Health Care Needs, Santa Rosa Children's Hospital, Texas Respite Resource Network, Texas Planning Council for Developmental Disabilities, United Cerebral Palsy of Texas, several MDCP participant parents, parents with children on the MDCP waiting list, and MDCP providers, which were generally supportive of the overall proposed changes in the program. 25 TAC sec.sec.34.1-34.4 The repeals are proposed under the Human Resources Code, sec.32.021, and Government Code, sec.531.021, which provides the Health and Human Services Commission with the authority to adopt rules to administer the state's medical assistance program. The rules are submitted to the Texas Department of Health under its agreement with the Health and Human Services Commission to operate the Medically Dependent Children Program, and as authorized under Chapter 15, sec.1.07, Acts of the 72nd Legislature, First Called Session (1991), as amended by Chapter 747, Acts of the 73rd Legislature (1993). 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. Issued in Austin, Texas, on August 11, 1997. TRD-9710527 Susan K. Steeg General Counsel Texas Department of Health Effective date: September 2, 1997 Proposal publication date: March 18, 1997 For further information, please call: (512) 458-7236 25 TAC sec.sec.34.1-34.7 The new sections are proposed under the Human Resources Code, sec.32.021, and Government Code, sec.531.021, which provides the Health and Human Services Commission with the authority to adopt rules to administer the state's medical assistance program. The rules are submitted to the Texas Department of Health under its agreement with the Health and Human Services Commission to operate the Medically Dependent Children Program, and as authorized under Chapter 15, sec.1.07, Acts of the 72nd Legislature, First Called Session (1991), as amended by Chapter 747, Acts of the 73rd Legislature (1993). sec.34.2. Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Adaptive aid-A device necessary to treat, rehabilitate, prevent, or compensate for conditions resulting in disability or loss of function. Adaptive aids enable people to perform the activities of daily living or control the environment in which they live. Adjunct supports-A diverse array of approved, individualized, disability-related services that support participation in child care, post-secondary education, or independent living, or that support an imminent move to an independent living situation, and that may vary by child, provider, and setting. Applicant-An individual whose eligibility for waiver services is in the process of being determined. An individual becomes an applicant when he/she is next in line to fill a vacant position in the waiver program, a vacancy exists, the Texas Department of Health (department) has approved the filling of the vacancy, the department has notified the individual, and the individual has submitted the required application materials to the department within a specified time frame. Basic child care-Watchful attention and supervision by a designated provider in the absence of the primary caregiver during those hours when the caregiver is at work, in job-training, or at school. Basic child care may be provided in a variety of settings including a licensed day care center, a registered family home, the child's home, an after-school setting, or other usual child care setting. Basic child care is a service that is separate and distinct from educational services provided at a school where attendance is mandated and the primary focus of the institution is the accomplishment of specified academic goals. Basic child care is also separate and distinct from respite services which are provided when the primary caregiver would normally be available. Basic child care cost-The fee charged for the services provided in a specific child care setting for a child who does not have a disability or chronic illness. This fee may vary with age, type of setting, hours of service delivery, and community. Caregiving-Performance of activities and tasks required to meet the needs of the waiver participant. The performance of certain caregiving activities may be regulated by law or standards and/or may require specialized training or education. Care planning process-A collaborative activity, subject to established time frames, which results in the development of an Individual Plan of Care (IPC) and which requires that the primary caregiver pursue all identified resources to be integrated into the IPC with authorized MDCP services. Child Care Management System (CCMS)-A child care system administered by the Texas Workforce Commission which helps eligible parents by giving them more choices in child-care arrangements and by helping them find and pay for qualified caregivers, which may include child-care centers, registered family homes, or the child's grandparent, aunt, or uncle. The Texas Workforce Commission establishes payment rates for CCMS-reimbursed child care services based on data analyses of local market costs for child care services. Comprehensive child care-A combination of basic child care, other support services mandated by state or federal law, other required program-specific requirements, and approved adjunct supports which enable the Medically Dependent Children Program (MDCP) participant to use child care while the parent is at work, in job-training, or at school. Cost allowance-The maximum dollar amount available for reimbursement for a participant's approved waiver services, which is equal to 63% of the annual amount assigned to the participant's Texas Index for Level of Effort (TILE) designation for skilled nursing facility care as of September 1, 1996. The actual annual dollar amount approved for an individual participant is less than or equal to the participant's cost allowance, is determined during the development of the participant's individual plan of care, and is based on factors including the participant's assessed needs and the supports and other resources available to the child. Direct care-Hands-on care for or supervision of a participant. Direct care services reimbursable through MDCP are respite and adjunct supports. Health Care Financing Administration (HCFA)-An organizational division of the United States Department of Health and Human Services that is responsible for approval, monitoring, and oversight of state Medicaid programs. Individual plan of care (IPC)-The instrument used to document the waiver and non-waiver services available to a specific program participant during the specified period of eligibility (typically, one year), the sources/providers of those services, and the projected cost of the waiver services shown on that document. The IPC is a separate document from the more detailed documents which may elaborate on its implementation. Minor home modification-A physical modification to a participant's home, required by the participant's IPC, which is necessary to prevent institutionalization or support deinstitutionalization. Participant-An individual who has been determined eligible to receive waiver services and who receives waiver services according to an IPC. Primary caregiver-An individual(s) with the responsibility for a participant's routine daily care and the provision of food, shelter, clothing, health care, education, nurturing, and supervision. Primary caregivers may include but are not limited to parents, foster parents, guardians, or other family members by birth or marriage. A primary caregiver provides daily, uncompensated care for the participant; does not delegate caregiving responsibilities to paid providers a majority of the time; and participates in the development and implementation of the MDCP participant's IPC. Provider-An entity which has an agreement with the department to provide authorized waiver services for MDCP participants for compensation according to approved IPCs. Qualified individual-An individual who may be eligible to become an MDCP participant under the conditions outlined in sec.34.3(c) of this title (relating to Participant Eligibility Criteria) for skilled nursing facility deinstitutionalization. Registrant-An individual whose name has been registered on the MDCP waiting list after the department has received his/her pre-application registration materials. A registrant has requested a determination of his/her eligibility in order to apply for waiver services. Respite-A service which provides temporary relief from caregiving to the primary caregiver of a waiver participant during times when the participant's primary caregiver would normally provide care. Service array-Home and community-based Medicaid services available to MDCP participants by virtue of their waiver eligibility. Texas Index for Level of Effort (TILE)-The system used to quantify the intensity of the care needs of individuals in Texas nursing facilities, and to assign daily reimbursement rates for that care. TILE rates are established by the Texas Board of Human Services. Waiting list-A statewide listing of individuals ordered on a first-come, first- served basis who have indicated their interest in participating in the MDCP through submission of MDCP pre-application registration materials. Inclusion on the waiting list does not imply eligibility for MDCP. Waiver-An exception to otherwise applicable requirements. A waiver approved by HCFA under the Social Security Act, sec.1915(c), authorizes the MDCP to waive certain Medicaid requirements for the delivery of unique services to a specific population and to use unique requirements for determining program eligibility. The term "waiver" may be equated to "MDCP." sec.34.3.Participant Eligibility Criteria. (a) Applicant eligibility. To be an applicant of the Medically Dependent Children Program (MDCP), an individual must reside in Texas. (b) Participant eligibility. To be a participant of the MDCP, an individual must: (1) live in Texas; (2) be under 21; (3) be Medicaid eligible; (4) participate in no other sec.1915(c) Medicaid waiver program; (5) meet the medical necessity criteria for nursing facility care. Each applicant's/participant's medical necessity criteria must be assessed on the client assessment review and evaluation form. Reevaluations are performed at a minimum every 12 months using the same process; (6) have a physician's signed approval attesting that the authorized and other specified services are necessary to avoid institutional placement and are appropriate to meet the participant's needs in the home. The physician-approved individual plan of care (IPC) must specify health-related care needs and must document waiver services, non-waiver Medicaid services, and any other home and community-based services, as well as services and supports provided by the primary caregiver(s); (7) have an IPC which documents the Texas Department of Health's (department's) plan to authorize and the participant's plan to utilize waiver services without an interruption in service delivery of more than 60 days; (8) have an approved IPC for which the projected annual cost for waiver services does not exceed the established annual waiver service cost allowance. The allocation for direct care waiver services (respite services and adjunct supports) for participants who are age 20 will be prorated for the participant's remaining eligibility period. The department may grant exceptions to the cost allowance for respite services or adjunct supports on a temporary basis when extenuating circumstances preclude the development or implementation of an IPC within the cost allowance. In such cases, approval will depend upon the department's review of the circumstances of the request; upon the availability of other resources, including family, volunteer, or community resources; and upon the waiver program's financial status. The department may deny requests for exceptions to the annual cost allowance if vacancies in the waiver are frozen, if the program anticipates a budgetary shortfall, if the primary caregiver does not participate in identifying and pursuing other possible resources which must be used prior to waiver services, or if the request does not demonstrate that extenuating circumstances exist. A reduction in the annual cost allowance does not in itself constitute an extenuating circumstance. Following a review of the circumstances, the department will determine which category of exceptional funding is appropriate, as described in subparagraphs (A) and (B) of this paragraph. The specific amount approved within a given category will be based on a budget developed to address the extenuating circumstances. Once approved, continuation of funding for each approved exception to the cost allowance is subject to periodic review and renewal. (A) Category A. The department may grant an exception to a participant's annual cost allowance not to exceed 10% of the participant's annual cost allowance if the existing extenuating circumstances will likely be resolved within six months. (B) Category B. The department may grant an exception to the participant's annual cost allowance under one or more of the special circumstances described in clauses (i)-(iv) of this subparagraph. The total amount allowable for exceptions under Category B may not exceed $5,000. Special circumstances include: (i) the caregiving ability of the participant's sole primary caregiver is expected to be affected significantly for more than six months due to a disability or illness of the caregiver; (ii) the caregiving ability of the participant's primary caregiver is expected to be affected significantly for more than six months due to a disability or illness of one of the participant's siblings, parents, grandparents, or other member of the participant's household; or due to the recent loss of another primary caregiver; (iii) the participant's primary caregiver needs additional services to support provider training during a transition from one type of provider to another. An exception under this circumstance may not exceed $1,000; and (iv) the participant has a severe immunological disorder or a similar medical condition which would make child care in a group setting a life-threatening situation; and (9) meet the following requirements: (A) the applicant or participant must be eligible for supplemental security income (SSI) benefits in the community; or (B) the applicant or participant must meet SSI disability criteria and must: (i) meet the institutional income and resource criteria established for the Texas Medicaid Program; or (ii) be an individual under 19 years of age for whom the Texas Department of Protective and Regulatory Services (PRS) assumes financial responsibility, in whole or in part (not to exceed Level II foster care payment), and who is being cared for in: (I) a family foster home which is licensed or certified and supervised by PRS, or (II) a family foster home which is licensed or certified and supervised by a licensed public or private nonprofit child-placing agency; or (iii) be a member of a family which receives full Medicaid benefits as a result of qualifying for temporary assistance to needy families (TANF); or (iv) qualify under other Medicaid Type Programs covered under the waiver. (c) Deinstitutionalization. (1) An MDCP registrant who was either admitted to a Texas nursing facility prior to September 1, 1997, and continues to reside in the facility, or one who was discharged from a nursing facility between September 1, 1995, and September 1, 1997, following a nursing facility placement of at least four months' duration, may apply for services to support the individual's deinstitutionalization if the individual: (A) has been determined to be Medicaid eligible; and (B) has met all of the criteria in subsection (b) of this section. (2) The names of qualified individuals applying for nursing facility deinstitutionalization shall be maintained on a waiting list separate from that for other MDCP registrants. (3) An individual applying for nursing facility deinstitutionalization under MDCP shall become eligible for waiver services under this subsection if: (A) a vacancy designated for qualified individuals under this subsection exists within the waiver, and (B) the individual's Texas Index for Level of Effort (TILE) funding is available to be allocated for home and community-based services. (d) Applicant/participant choice. An eligible applicant or participant and his parent or guardian or both must be provided the option of: (1) participating in the waiver program as specified in the IPC; (2) being placed in institutional care; or (3) refusing both options specified in paragraphs (1) and (2) of this subsection. (e) Waiting lists. Participants in the waiver program are selected from the MDCP waiting list, which is maintained on a first-come, first-served basis. The names of Medicaid-eligible, qualified individuals who complete the MDCP pre- application registration process and who are residents of a Texas nursing facility as described in subsection (c) of this section are maintained on a separate waiting list for nursing facility deinstitutionalization. Their participation in the waiver will not delay the entry of individuals who are not residents of a Texas nursing facility and whose names are maintained on the regular MDCP waiting list. A registrant's waiting list status is assured unless: (1) the pre-application registration materials clearly indicate the individual does not qualify as a candidate for the waiver program; or (2) the family or the registrant requests that the registrant's name be removed from the waiting list. (f) Medicaid eligibility date. A participant's Medicaid eligibility under the waiver is contingent upon the actual delivery of waiver services. For participants eligible for Medicaid only through this waiver, the effective date of Medicaid coverage coincides with the date the participant actually receives waiver services. (g) Application deadline. If a registrant fails to complete and return all required application materials within 35 calendar days from the date of the application transmittal letter, the registrant's potential application shall be closed. In such a case, the registrant's name may be re-entered at the end of the waiting list, upon request. Exceptions may be made following a review of special circumstances. (h) Eligibility denial and exceptions. Unless an exception is made following a review of special circumstances, waiver eligibility shall be denied or terminated if: (1) waiver services are not utilized as described in the IPC, unless: (A) the participant is hospitalized; (B) the planned waiver service provider is temporarily unable to comply with the participant's IPC; (C) a replacement waiver service provider is being sought; or (D) other non-waiver, non-Medicaid resources are being used temporarily; (2) the applicant/participant's primary caregiver fails to return a signed IPC within the specified time frame, not to exceed 30 days from transmittal of the unsigned document; (3) the applicant/participant's primary caregiver does not participate in the eligibility determination process, the care planning process, or the implementation of the IPC; (4) the applicant/participant's primary caregiver does not comply with the responsibilities enumerated in a departmental form which he/she has signed; or (5) the IPC, inclusive of MDCP services, does not reflect a routine direct care contribution by the primary caregiver(s). (i) Reduction in services. Waiver services may be reduced when: (1) the need for waiver services decreases as determined during the care planning process; (2) non-waiver resources become available; (3) the primary caregiver does not participate fully in the care planning process; (4) the participant's TILE score changes in such a way that the participant's annual cost allowance decreases; (5) the rate(s) paid to MDCP providers increase and the participant's IPC is already at the maximum annual cost allowance; (6) a time-limited exception to the annual cost allowance expires; or (7) MDCP expenditures and budgetary considerations and constraints indicate that cost reduction is necessary. sec.34.5.Waiver Services. (a) Relationship of waiver services to other sources of caregiving and support. (1) Individual plans of care (IPCs) must include services provided by parents and/or primary caregivers; non-waiver services; and waiver services. (2) Waiver services are intended to support but not to supplant the role of the primary caregiver(s). (3) If service needs can be met through Medicaid state plan services or other applicable services, those non-waiver resources must be used before waiver services. (4) Waiver services will be coordinated with other available resources, including Medicaid state plan services. (5) Parents/caregivers will be responsible for the cost of basic child care. (A) The cost of basic child care will be calculated based on: (i) established and verifiable fees; or (ii) recognized and accepted community-based child care data analyses, e.g., those developed and utilized by the Child Care Management System (CCMS) of the Texas Workforce Commission. (B) The total parental contribution to child care includes the cost of basic child care and may be affected by: (i) the participant's eligibility for programs such as Head Start or for the resources of the CCMS; or (ii) the primary caregiver's decision to have basic child care services delivered in a more costly setting or by a more costly provider than is otherwise available and medically acceptable for the child. (b) Waiver service array. In addition to Medicaid state plan services, the following services are available to a waiver participant when included in the participant's IPC and when unavailable from other sources: (1) Respite services. Respite services may be provided by licensed registered nurses (RNs); eligible licensed vocational nurses (LVNs); licensed home and community support services agencies (HCSSAs) which provide skilled nursing services; licensed HCSSAs which provide personal assistance services with and/or without delegation by a registered nurse; independently enrolled attendants who meet program participation standards as approved by the Health Care Financing Administration (HCFA); host families who meet the requirements for foster homes or who meet other program participation standards as approved by HCFA; camps accredited by the American Camping Association; licensed child care facilities which meet state requirements for respite care providers; licensed special care facilities; licensed nursing facilities; and licensed hospitals. Providers must operate within the scope of their licensure, accreditation, participation standards, or other applicable regulations. (2) Adjunct supports. Adjunct supports may be provided either by the MDCP or by sources outside the MDCP waiver, and they may be provided on a one-time basis, on an ongoing basis, intermittently, or as the participant's condition, child care arrangements, or living arrangements change. To support participation in child care, adjunct supports will be approved only for those hours when the primary caregiver is working, attending job training, or attending school. Adjunct supports may include, but are not limited to, the following: (A) the reimbursement differential between the cost of a basic child care provider and a more costly, medically required provider such as an eligible LVN or RN; (B) time-limited transitional support when a participant is moving to a more inclusive child care setting; (C) limited modifications to an out-of-home, more inclusive child care setting where such modifications are not required by state or federal law or by program- specific regulation. Such modifications must meet the requirements for minor home modifications described in paragraph (3) of this subsection. Costs for approved modifications made under this subparagraph are not included in the calculation of the participant's lifetime allowance for minor home modifications; (D) child care-related transportation which is not required of the child care provider by state or federal law or by program-specific regulation, or which is not otherwise available in the community; and (E) other services, related to the participant's disability, that support participation in post-secondary education or independent living, or that support an imminent move to an independent living situation. (3) Minor home modifications. The MDCP will reimburse qualified providers the cost of approved minor home modifications that are necessary to prevent the institutionalization or support the deinstitutionalization of an applicant/participant. (A) Covered modifications are limited to: (i) the purchase and installation of permanent and portable ramps not covered by other sources; (ii) the widening of doorways; (iii) the modification of bathroom facilities; and (iv) modifications related to the approved installation or modification of ramps, doorways, or bathroom facilities. (B) Bids from qualified contractors shall be required. (C) All services shall be provided in accordance with applicable state and local building codes. (D) Modifications must be for existing structures, and must not increase the square footage of the dwelling. (E) If alternative solutions exist, modifications will be approved by the Texas Department of Health (department) based on considerations of cost and comparable functionality. If more than one option is available, the department will approve the amount equivalent to the least costly option of comparable functionality. If the caregiver/participant selects a more costly option, the caregiver/participant shall be responsible for any costs which exceed those approved by the department. (F) There will be a maximum lifetime allowance of $7,500 for approved minor home modifications. In addition, up to $300 per year will be available for repair or replacement of these minor home modifications when such repair or replacement is not covered by warranty. The lifetime allowance is based on the participant's lifetime. (G) The department may establish an administrative fee for local agency coordination of these services. (H) Expenses for minor home modifications, repairs and replacements not covered by warranty, and related administrative fees will be budgeted within the participant's annual cost allowance. (4) Adaptive aids. The MDCP will reimburse qualified providers the cost of approved adaptive aids that are necessary to prevent the institutionalization or support the deinstitutionalization of an applicant/participant, that are related to the applicant's/participant's disability, and that have a manufacturer's suggested retail price of $100 or more. (A) Adaptive aids may include: (i) van lifts with tie-downs; and (ii) other items that are not covered by other sources. (B) There will be a maximum annual allowance of $4,000 for approved adaptive aids. A portion of this amount may be used to support assessment, training, and installation related to the adaptive aids. (C) Bids may be required for items that cost more than $1,000. (D) Expenses for adaptive aids and related assessment, training, and installation and administrative fees will be budgeted within the participant's annual spending allowance for adaptive aids and within the participant's annual cost allowance. (c) Transition to new service array. The IPCs of all waiver participants will be revised to reflect the new waiver service array and applicable policies and procedures at the time of the IPC's annual renewal or upon interim reassessment. Participants may request interim reassessment before the date of their annual IPC renewal, but may not access more than one service array at a time. sec.34.6.Provider Base and Reimbursement Methodology. (a) General. The Texas Department of Health (department) shall reimburse qualified providers for waiver services provided to waiver participants as specified in the participant's individual plan of care (IPC) and as authorized by the department. The Texas Board of Health (board) determines reimbursement rates and rate ceilings for Medicaid waiver services, based on department staff recommendations, at least annually. (b) Parents, primary caregivers, and members of the participant's household cannot be paid as that participant's provider(s) of Medically Dependent Children Program (MDCP) services. (c) Waiver rate and rate ceiling determination methodology. Recommended rates and rate ceilings are determined in the following manner. (1) For facility-based respite services and host families which meet the requirements for foster homes, respite providers shall be reimbursed an amount equal to the approved reimbursement rate associated with the nursing facility Texas Index for Level of Effort (TILE) category determined for the waiver participant per 24-hour period or prorated portion thereof. Subsequent changes to the TILE reimbursement rates shall not be applied until the annual renewal of a participant's IPC. (2) For respite services provided by home and community support services agencies (HCSSAs), independent registered nurses (RNs), and eligible licensed vocational nurses (LVNs), reimbursement rates shall be developed from analysis of MDCP negotiated historical rates for such services and shall include a differential for independently enrolled RNs. Rates may be adjusted to reflect increased costs of service delivery in underserved areas. (3) For respite services provided by personal assistance service (PAS) agencies with delegation by an RN, rates shall be based on those adopted by the Texas Department of Human Services (DHS) for the Community Based Alternatives (CBA) waiver program. (4) For respite services provided by PAS agencies without delegation by an RN, reimbursement rates shall be based on those adopted by DHS for the Primary Home Care program. (5) For respite services provided by independently enrolled attendants who meet program participation standards as approved by the Health Care Financing Administration (HCFA), rates shall be established such that the relationship between rates for agency and independent attendants will parallel the relationship between rates for agency and independently enrolled nurses. (6) For accredited camps, reimbursement rates shall be based on those adopted by DHS for the Community Living Assistance and Support Services (CLASS) Waiver program. (7) For child care centers which meet state requirements for respite care providers, reimbursement rates for respite care shall be based on the lesser of the following: (A) a prorated portion of the reimbursement rate associated with the participant's TILE category; or (B) the provider's established rate for respite services. (8) For adjunct supports, the reimbursement rate shall be based on provider type as outlined in subparagraphs (A), (B), and (C) of this paragraph. Adjunct supports providers may also provide other MDCP services, such as respite care, but may not be reimbursed for delivering more than one MDCP service at a time. Providers of adjunct supports include: (A) licensed RNs, eligible LVNs, licensed HCSSAs which provide skilled nursing services, licensed HCSSAs which provide PAS with and/or without delegation by an RN, and independently enrolled attendants who meet program participation standards as approved by HCFA, who shall be reimbursed according to their established MDCP respite reimbursement rate as defined in paragraphs (2)-(5) of this subsection; (B) providers of limited modifications to a child care setting when such modifications are not required by state or federal law or by program-specific regulation. Such providers shall be reimbursed based on the lowest bid obtained for the approved modification. If required, administrative fees for coordination of modifications shall be based on the administrative fees established by DHS for coordination of minor home modifications in the Community Based Alternatives (CBA) Waiver program; (C) providers of child care-related transportation and other approved providers of child care-related adjunct support services, who shall be reimbursed based upon the lesser of their established fees and the established Medicaid reimbursement rate for a comparable service/provider; and (D) providers who support participation in post-secondary education or independent living, or who support an imminent move to an independent living situation, who shall be reimbursed based upon the least of their established fees, their established MDCP respite reimbursement rate as defined in paragraphs (2)-(5) of this subsection, or the established Medicaid reimbursement rate for a comparable service/provider. (9) For minor home modifications, reimbursement rates shall be based on the lowest of the comparable and responsible bids submitted for the approved modification. Administrative fees shall be based on those adopted by DHS for the CBA Waiver program. (10) For adaptive aids, reimbursement rates shall be based on the manufacturer's suggested retail price minus the weighted average percentage discount as authorized by the Texas Medicaid State Plan for providers of durable medical equipment and as defined under sec.33.140(5)(B)(v) of this title (relating to Early and Periodic Screening, Diagnosis, and Treatment-Comprehensive Care Program Providers [EPSDT-CCP]). If the manufacturer does not offer a discount to the provider, the reimbursement rate will be the provider's cost plus a percentage as authorized by the Texas Medicaid State Plan for providers of durable medical equipment and as defined under sec.33.140(5)(A)(iv) of this title. If bids are required, the reimbursement rate shall be based on the lowest bid obtained for the approved adaptive aid. (11) For each type of service, the provider shall be reimbursed the lesser of the billed amount or the rate as described in this section. 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. Issued in Austin, Texas, on August 11, 1997. TRD-9710534 Susan K. Steeg General Counsel Texas Department of Health Effective date: September 2, 1997 Proposal publication date: March 18, 1997 For further information, please call: (512) 458-7236 TITLE 37. PUBLIC SAFETY AND CORRECTIONS PART IX. Commission on Jail Standards CHAPTER 251.General 37 TAC sec.251.1 The Commission on Jail Standards adopts an amendment to sec.251.1, concerning General Rules without changes to the proposed text as published in the June 6, 1997, issue of the Texas Register (22 TexReg 5616). Adoption of the rule will amend the existing standard to affirm that the Commission has the authority to regulate counties, municipalities, and private vendors housing out-of-state inmates. Legislative authority necessitates the change based upon passage of Senate Bill 367. The rule functions to provide minimum jail standards consistent with the authority provided the Commission by statutory law. No comments were received regarding adoption of the amendment. The amendment is adopted under Government Code, Chapter 511, which provides the Texas Commission on Jail Standards with the authority to revise, amend, or change rules and procedures if necessary. 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. Issued in Austin, Texas, on August 11, 1997. TRD-9710525 Jack E. Crump Executive Director Commission on Jail Standards Effective date: September 2, 1997 Proposal publication date: June 6, 1997 For further information, please call: (512) 463-5505 CHAPTER 259.New Construction Rules Long Term Incarceration Design, Construction and Furnishing Requirements 37 TAC sec.sec.259.700-259.773 The Commission on Jail Standards adopts new rules sec.sec.259.700 - 259.773, concerning New Construction Rules for long-term incarceration without changes to proposed text published in the July 8, 1997, issue of the Texas Register (22 TexReg 6405). Adoption of these rules will provide a new construction standard for facilities built to house long-term inmates due to the recent increase in the number of long-term incarceration, non-Texas, post sentenced inmates being held by counties, municipalities and private vendors. The rules function to provide guidelines for the design of long-term incarceration facilities with ample program space, out-of-cell time, and outer perimeter security being serious considerations. Comments were received from one private vendor due to a misunderstanding of the language used within the document. Once the meaning of specific terminology was explained, the vendor was in full concurrence with the proposed language. The new rules are adopted under Government Code, Chapter 511, which provides the Texas Commission on Jail Standards with the authority to adopt reasonable rules and procedures establishing standards for the construction, equipment, maintenance and operation of county jails. 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. Issued in Austin, Texas, on August 11, 1997. TRD-9710519 Jack E. Crump Executive Director Commission on Jail Standards Effective date: September 2, 1997 Proposal publication date: July 8, 1997 For further information, please call: (512) 463-5505 CHAPTER 263.Life Safety 37 TAC sec.263.71 The Commission on Jail Standards adopts the repeal of sec.263.71, concerning Life Safety Rules without changes to the text as published in the June 6, 1997, issue of the Texas Register (22 TexReg 5616). Adoption of this rule will delete the requirement that all fire incidents involving injury or property damage be sent to the Commission. The rule functions to avoid duplication of information since inspectors retrieve information on fire reports during the annual inspection. No comments were received regarding adoption of the repeal. The repeal is adopted under Government Code, Chapter 511, which provides the Texas Commission on Jail Standards with the authority to adopt reasonable rules and procedures establishing minimum standards for the construction, equipment, maintenance, and operation of county jails. 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. Issued in Austin, Texas, on August 11, 1997. TRD-9710524 Jack E. Crump Executive Director Commission on Jail Standards Effective date: September 2, 1997 Proposal publication date: June 6, 1997 For further information, please call: (512) 463-5505 CHAPTER 277.Clothing, Personal Hygiene and Bedding 37 TAC sec.277.1 The Commission on Jail Standards adopts an amendment to sec.277.1, concerning Personal Hygiene without changes to the proposed text published in the June 6, 1997, issue of the Texas Register (22 TexReg 5617). Adoption of this rule will ensure a greater care of inmates in adverse weather conditions. The rule functions to provide appropriate clothing to inmates involved in outside activities during inclement weather when necessary. No comments were received regarding adoption of the amendment. The amendment is adopted under Government Code, Chapter 511, which provides the Texas Commission on Jail Standards with the authority to adopt reasonable rules and procedures establishing minimum standards for the custody, care, and treatment of prisoners. 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. Issued in Austin, Texas, on August 11, 1997. TRD-9710523 Jack E. Crump Executive Director Commission on Jail Standards Effective date: September 2, 1997 Proposal publication date: June 6, 1997 For further information, please call: (512) 463-5505 CHAPTER 283.Discipline and Grievances 37 TAC sec.283.2 The Commission on Jail Standards adopts an amendment to sec.283.2, concerning Discipline and Grievances without changes to the proposed text published in the June 6, 1997, issue of the Texas Register (22 TexReg 5617). Adoption of the rule will ensure inmates of other nationalities and languages other than English and Spanish will understand the institutional rules and regulations of the facility. The rule functions to provide an oral translation of rules and regulations in an understandable language when necessary. No comments were received regarding adoption of the amendment. The amendment is adopted under Government Code, Chapter 511, which provides the Texas Commission on Jail Standards with the authority to adopt reasonable rules and procedures establishing minimum standards for the construction, equipment, maintenance, and operation of county jails. 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. Issued in Austin, Texas, on August 11, 1997. TRD-9710522 Jack E. Crump Executive Director Commission on Jail Standards Effective date: September 2, 1997 Proposal publication date: June 6, 1997 For further information, please call: (512) 463-5505 CHAPTER 297.Compliance and Enforcement 37 TAC sec.297.2 The Commission on Jail Standards adopts an amendment to sec.297.2, concerning Compliance and Enforcement with changes to the proposed text published in the June 6, 1997, issue of the Texas Register (22 TexReg 5618). Adoption of the rule will provide minimum jail standards consistent with the Sunset Commission review and Passage of Senate Bill 367, effective September 1, 1997. The rule functions to provide for announced and unannounced inspections to be scheduled based on a jail's history of compliance with standards and other high risk factors identified by the Commission. No comments were received regarding adoption of the amendment. The amendment is adopted under Government Code, Chapter 511, which provides the Texas Commission on Jail Standards with the authority to revise, amend, or change rules and procedures if necessary. sec.297.2.Regular Commission Inspections. Not less than once each fiscal year, the commission staff shall perform at least one announced or unannounced inspection for each facility under commission jurisdiction and shall inquire into security, control, conditions, and compliance with the established minimum standards. In addition to regular commission inspections, the staff may visit and conduct special inspections to determine compliance with the established minimum standards. The commission staff shall at any time have access to all parts of each facility; the books, records, data, documents, and accounts pertaining to each facility and to the inmates confined therein; and shall have the right and authority to interview any of the officials of the facility or inmates therein. The sheriff/operator shall assist staff by all means at their disposal to enable them to perform the functions, powers, and duties of their office. 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. Issued in Austin, Texas, on August 11, 1997. TRD-9710521 Jack E. Crump Executive Director Commission on Jail Standards Effective date: September 2, 1997 Proposal publication date: June 6, 1997 For further information, please call: (512) 463-5505 37 TAC sec.sec.297.5-297.8 The Commission on Jail Standards adopts amendments to sec.sec.297.5-297.8, concerning Compliance and Enforcement without changes to the proposed text published in the June 6, 1997, issue of the Texas Register (22 TexReg 5618). Adoption of these rules will provide the Commission enforcement ability in situations when a notice of noncompliance is not appropriate and provide minimum jail standards consistent with the passage of Senate Bill 367, effective September 1, 1997. The rules function to allow the Commission to render an administrative order in instances where a Notice-of-Noncompliance is not necessary and further details procedures to terminate contracts for housing inmates not sentenced in Texas court by the issuance of a remedial order. No comments were received regarding adoption of the amendments. The amendments are adopted under Government Code, Chapter 511, which provides the Texas Commission on Jail Standards with the authority to revise, amend, or change rules and procedures if necessary. 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. Issued in Austin, Texas, on August 11, 1997. TRD-9710520 Jack E. Crump Executive Director Commission on Jail Standards Effective date: September 2, 1997 Proposal publication date: June 6, 1997 For further information, please call: (512) 463-5505 37 TAC sec.297.14 The Commission on Jail Standards adopts an amendment to sec.297.14, concerning Compliance and Enforcement regarding contracts with other states for housing non-Texas inmates with changes to the proposed text published in the July 8, 1997, issue of the Texas Register (22 TexReg 6411). Adoption of this rule will provide contracting with other states for housing non-Texas inmates consistent with the passage of Senate Bill 367, effective September 1, 1997. The rule functions to provide the Commission the authority to review, approve and terminate contracts, and review a vendor's biographical history. The rule describes entities authorized to house out-of-state inmates and who those entities may contract with. It further describes out-of-state inmates not eligible for transfer unless a waiver is granted by the Commission. No comments were received regarding adoption of the amendment. The amendment is adopted under Government Code, Chapter 511, which provides the Texas Commission on Jail Standards with the authority to revise, amend, or change rules and procedures if necessary. sec.297.14.Contract With Other States For Housing Non-Texas Inmates. (a) The only entities, other than the state, that are authorized to operate a correctional facility to house in this state, inmates convicted of offenses against the laws of another state of the United States are: (1) a county or municipality; and (2) a private vendor operating a correctional facility under a contract with a county under Subchapter F, Chapter 351, Local Government Code, or a municipality under Subchapter E, Chapter 361, Local Government Code. (b) A private vendor operating a correctional facility in this state may not enter into a contract for housing out-of-state inmates. A county commissioners court or the governing body of a municipality may enter into a contract with another state or a jurisdiction in another state for housing out-of-state inmates. (c) At a minimum all contracts shall: (1) require facility compliance with minimum jail standards; (2) require that all inmates confined pursuant to the contract be released within the jurisdiction of the sending entity; (3) require that all inmates records concerning classification, to include conduct records, be reviewed by the receiving entity prior to transfer of the inmate; (4) require that the sending entity determine inmate custody level in accordance with Chapter 271 of this title (relating to Classification and Separation of Inmates) to ensure that custody level assignments do not exceed the construction security level availability; (5) require that inmates with a record of institutional violence involving the use of a deadly weapon or a pattern of violence while confined in the sending state, escape, or attempted escape from secure custody are not eligible for transfer unless a specific waiver has been granted by the commission; (6) require that all appropriate medical information be provided prior to transfer, to include certification of tuberculosis screening or treatment; (7) require provisions for termination of contract within 90 days by receiving entity; (8) require termination of contract if so ordered by the Commission, pursuant to the Government Code, sec.511.096. (d) The receiving entity shall develop and implement a written procedure outlining the coordination of law enforcement activities in the case of riot, rebellion, escape, or other situations requiring assistance from city, county, or state law enforcement agencies. The Commission may require the receiving entity or sending state to reimburse the state for emergency assistance. The procedure shall be submitted to the Commission for approval. (e) The receiving entity shall provide the Commission with a statement of custody level capacity and availability. (f) All operational requirements shall meet or exceed Texas Minimum Jail Standards and require Commission approval prior to implementation. (g) All receiving entities shall maintain a certificate of compliance from the Commission. (h) Copies of unsigned and signed contracts, along with addenda, shall be submitted to the Commission for review and approval respectively. Signed contracts between a private vendor and receiving entity shall be provided by the vendor for review and approval. The vendor shall also provide a biographical history for review. (i) The receiving entity shall promptly notify the Commission of any major incidents, including escapes. 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. Issued in Austin, Texas, on August 11, 1997. TRD-9710518 Jack E. Crump Executive Director Commission on Jail Standards Effective date: September 2, 1997 Proposal publication date: July 8, 1997 For further information, please call: (512) 463-5505 CHAPTER 300.Fees 37 TAC sec.300.1, sec.300.2 The Commission on Jail Standards adopts amendments to sec.300.1 and sec.300.2, concerning Fees without changes to the proposed text published in the June 6, 1997, issue of the Texas Register (22 TexReg 5619). Adoption of these rules will provide language consistent with passage of Senate Bill 367, effective September 1, 1997. The rules function to allow the Commission to impose fees for technical assistance on private vendors operating facilities which house prisoners from other states. No comments were received regarding adoption of the amendments. The amendments are adopted under Government Code, Chapter 511, which provides the Texas Commission on Jail Standards with the authority to revise, amend, or change rules and procedures if necessary. 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. Issued in Austin, Texas, on August 11, 1997. TRD-9710517 Jack E. Crump Executive Director Commission on Jail Standards Effective date: September 2, 1997 Proposal publication date: June 6, 1997 For further information, please call: (512) 463-5505 PART XIII. Texas Commission on Fire Protection CHAPTER 505.Mobile Service Units 37 TAC sec.sec.505.1-505.12 The Texas Commission on Fire Protection adopts the repeal of sec.sec.505.1- 505.12, concerning mobile service units, without changes to the proposed text as published in the May 20, 1997, issue of the Texas Register (22 TexReg 4354). The justification for this repeal is that it clarifies the requirements for mobile service units by eliminating inconsistent and obsolete language in the present rules. The subject matter of the repealed language is obsolete and it conflicts with other language that has been more recently adopted by the agency. There were no comments received on the proposed repeal. The repeal is adopted under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and Texas Health and Safety Code, sec.753.002. 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. Issued in Austin, Texas, on August 12, 1997. TRD-9710536 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: September 2, 1997 Proposal publication date: May 20, 1997 For further information, please call: (512) 918-7189