25 TAC §§409.153, 409.154, 409.158, 409.167, 409.169, 409.170, 409.172, 409.173
The Texas Department of Mental Health and Mental Retardation
adopts amendments §§409.153, 409.154, 409.158, 409.167, 409.169,
409.170, 409.172, and 409.173, of Chapter 409, Subchapter E, concerning Home
and Community-based Services - OBRA. Sections 409.153, 409.154 and 409.158
are adopted with changes to the proposed text as published in the September
5, 1997, issue of the
Texas Register
(22 TexReg
8845). Sections 409.167, 409.169, 409.170, 409.172, and 409.173 are adopted
without changes and will not be republished.
The adopted amendments would require the transfer of initial ICF-MR level-of-care
eligibility determinations for HCS-O applicants from the Texas Department
of Human Services to TDMHMR and update sections of the rule to reflect current
practices for correcting lapsed levels of care; revise language to more clearly
delineate conditions under which program applicants/participants may request
fair hearings; incorporate the HCS-O Consumer Principles for Evidentiary Certification
affecting the rights of recipients and the certification procedures of providers;
and update sections of the rule related to HCS program provider certification
and TDMHMR contract administration to reflect current practice.
Section 409.153(a)(3) has been revised upon adoption to indicate that an
individual's legally authorized representative may, on behalf of the individual,
choose between the home and community-based waiver services as an alternative
to ICF-MR placement. Section 409.154 has been modified to clarify the process
for correcting lapsed LOCs. Section 409.158 has been revised upon adoption
to indicate that an individual's legally authorized representative may request
a Fair Hearing on behalf of the individual. Sections 409.167, 409.169, 409.170,
409.172, and 409.173 are adopted as proposed.
A public hearing regarding the proposed rules was held September 18, 1997,
at which no oral or written comments were received. Written comments were
received from the Parent Association for the Retarded of Texas, Austin and
one private citizen.
Two commenters questioned the accuracy of the fiscal impact of the proposed
rule revisions and recommended that the impact be re-evaluated.
The department responds that the fiscal impact is correct as published.
The anticipated fiscal impact pertains only to the assumption by TDMHMR regarding
initial level of care (LOC) determinations and not to other department functions
related to the HCS-O Program enrollment process and annual LOC renewal process.
Two commenters suggested that the term legally authorized representative
be added to §409.153(a) pertaining to the HCS-O eligibility criteria.
The department responds that §409.153(a) specifies the HCS-O program
eligibility criteria for individuals who are applying for services through
the HCS-O program. The department has modified §409.153(a)(3) to add
that a consumer's legally authorized representative may make the choice for
the consumer to receive services through the waiver program as an alternative
to ICF-MR placement.
Two commenters recommended that §409.154(i) be revised to require
the department to notify the legally authorized representative in addition
to the provider agency filing a payment claim, that a claim has been denied
by the department.
The department responds that notification of the denial of a provider's
claim for payment is made under the contractual arrangement between the provider
agency and the department.
Two commenters suggested that reference be added in §409.158 (concerning
Right to Appeal) to indicate that a consumer's legally authorized representative
may also request a fair hearing.
The department responds that §409.158 has been revised to indicate
that a consumer's legally authorized representative may request a fair hearing
on behalf of that consumer.
Two commenters indicated the need to add the term legally authorized representative
(LAR) in at least 35 places in the proposal.
The department responds that it is unable to determine from this comment
the specific locations where the term LAR is suggested to be added. The continuing
role and authority of the LAR is presented in HCS-O Consumer Principles 5.39
and 49. Principle 5.39 requires the LAR to be informed of all rights of the
HCS-O Program; to have the opportunity to participate in the planning for
HCS-O services; and to have the opportunity to advocate for all rights of
the individual. Principle 49 requires the LAR to be a member of the individual's
Interdisciplinary Team which is responsible for developing and overseeing
the services delivered by the HCS-O Provider. Finally, under applicable state
law the LAR is the designated person responsible for all decisions involving
his/her ward. HCS-O Providers are required to comply with state law.
Regarding Principle 5.18, two commenters suggested that the individual
(consumer) should also live near family and/or the LAR.
The department responds that requirement for the consumer to maintain involvement
with the family and to live near the family and/or the LAR is contained in
Principles 14 and 46. Principle 14 requires the HCS-O Provider to encourage
and assist families to remain involved in the individual's life. Principle
46 requires the HCS-O Provider to facilitate the opportunity for the individual
to live near family and friends unless justified by the Interdisciplinary
Team (IDT) based on the informed consent of the individual or, if applicable,
the LAR.
Two commenters expressed concern regarding Principle 15, which indicates
that the HCS-O program provider shall have evidence that when a child is unable
to reside or live with the child's natural family members, then the child
must be supported in a family environment such as an adoptive family or a
foster family. The commenters indicated that this principle suggests that
whenever a natural family can not keep the child at home they are not a supportive
family and should let an adoptive or foster family take over.
The department responds that the intent of this principle is to ensure
that a consumer who is under age 18 has the opportunity to live in as permanent
a family environment as possible. The department makes no judgement on the
supportiveness of a family who is unable to keep an individual in the home.
This principle is also intended to address situations where parental rights
have been terminated through legal processes. The rights of the LAR to choose
placement, regardless of the age of the consumer, is not effected by this
principle. It is the expectation of the HCS-O Program that the LAR be involved
in all decisions regarding a consumer's program and living arrangements.
Two commenters stated, regarding Principles 30, 85, 87, 89 and 90, that
the LAR should be added to the language or the interdisciplinary team (IDT)
can contraindicate, document and justify exceptions to the requirements of
the principle. Further the commenters indicated that severely or profoundly
retarded consumers must not be allowed the acquisition of skills for sex,
driving a car or wandering off alone even though this is age appropriate behavior.
The department responds that the HCS-O provider is expected to protect
the health and safety of all individuals in its program. This protection is
mandated through the HCS-O Consumer Principles and by the federal government.
A requirement of the HCS-O Program, illustrated throughout the HCS-O Consumer
Principles, includes IDT (including the LAR) development of all services based
upon the needs, abilities and strengths of the individual, as determined through
assessment information. This principle addresses consumer integration and
opportunities for meaningful age-appropriate activities which promote growth
and learning. These activities are expected to be consistent with the functional
abilities and comprehension of the individual and do not include opportunities
which could result in danger to the individual or others.
Regarding Principle 58, two commenters questioned what happens to the individual
during the 10 working days the HCS program provider has to submit evidence
to TDMHMR regarding approval of temporary or permanent service termination.
The department responds that TDMHMR is the only authority which may authorize
temporary or permanent discharge. This principle is included to assure that
providers notify TDMHMR of those potential discharges. The status of the consumer
during the 10 day period is dependent upon the individual situation of the
consumer and whether he/she is still available to be served by the provider.
Within this principle, it is expected that, as possible, the provider will
develop a discharge plan to assure alternate service linkages and continuity
of services. It is also expected that, within the ability of the provider,
the consumer's health and safety be protected at all times.
The amendments are adopted under the Health and Safety Code,
§532.015(a), which provides the Texas Mental Health and Mental Retardation
Board with broad rulemaking authority; and under the provisions of Texas Government
Code, which provides the Texas Health and Human Services Commission with the
authority to administer federal medical assistance funds.
§409.153. Eligibility Criteria.
(a)
To be determined eligible by the Texas Department of Mental
Health and Mental Retardation (TDMHMR) for the Home and Community-based Waiver
Services - OBRA Program (HCS-O), an applicant must:
(1)
be determined by TDMHMR to have mental retardation and/or
a related condition, need active treatment, and have been previously or be
currently inappropriately placed in a Medicaid certified nursing facility
based on a resident review in accordance with the requirements of OBRA-87;
(2)
meet the level of care criteria for intermediate
care facilities for the mentally retarded (ICF-MR) as determined by TDMHMR
in accordance with Chapter 406, Subchapter E of this title (concerning ICF/MR
Program: Eligibility and Review) and with §409.154 of this title (relating
to Level of Care Criteria.);
(3)
choose, or the applicant's legally authorized representative
must choose, HCS-O services as an alternative to ICF-MR placement based on
an informed choice;
(4)
have an individual plan of care for waiver services
as specified in §409.155 of this title (relating to Individual Plan
of Care for Waiver Services) which does not exceed 125% of the estimated average
annualized expenditure for ICF/MR services approved by Health Care Financing
Administration (HCFA) in the formula calculations;
(5)
meet the financial eligibility criteria for waiver
services as specified in §409.156 of this title (relating to Financial
Eligibility Criteria);
(6)
be directly discharged from a Medicaid certified
nursing facility; and
(7)
receive waiver services.
(b)
Enrollment in this waiver program is limited to the number
of participants approved by HCFA.
(c)
Individuals may be enrolled in only one waiver program
at a time.
§409.154. Level of Care Criteria.
(a)
Individuals must meet the level of care (LOC) criteria
for Intermediate Care Facilities for the Mentally Retarded (ICF-MR I, V, VI,
or VIII) as determined by the TDMHMR or the Texas Department of Human Services
(TDHS) according to applicable state and federal regulations, and as verified
by a current LOC assessment form.
(b)
An LOC assessment (or reassessment) form signed by TDMHMR
or TDHS is considered valid for enrollment purposes by the department for
364 days from the date of issuance.
(c)
LOC assessments must be performed annually for all individuals.
(d)
To request payment for days that an individual was receiving
HCS-O services but did not have a current LOC determination in effect, the
provider must:
(1)
electronically transmit to the department a new LOC assessment
form, purpose code "E," for each period of time for which there was a lapsed
LOC;
(2)
retain in the individual's record a LOC assessment
form which:
(A)
contains information identical to the form transmitted
electronically to the department;
(B)
indicates in the "Comments" section the beginning and
ending dates of the time period for which no valid LOC existed; and
(C)
is signed by a physician certifying that the individual
required an ICF/MR LOC during that time period; and
(3)
retain in the individual's record a completed
verification statement signed by the chief executive officer of the provider.
Figure 1: 25 TAC §409.154(d)(3)
(e)
The request for payment for a period of lapsed LOC must
be submitted as described in §409.161 of this title (relating to Rejected
Claims.)
(f)
There must have been a current individual plan of care
in effect for the period of time for which payment is sought. The individual
plan of care cannot be retroactive.
(g)
A request for payment will not be approved for periods
of time that a LOC has been denied by TDMHMR or TDHS.
(h)
Purpose code "E" LOCs may not be used to establish initial
HCS-O eligibility or to enroll an individual into HCS-O.
(i)
TDMHMR shall notify the provider in writing that the request
for payment is approved or denied within 45 days of receipt of the request.
The provider may appeal the denial of payment in accordance with the procedure
described in §409.162 of this title (relating to Provider's Right to
Appeal.)
§409.158. Right To Appeal.
Any individual, or the individual's legally authorized representative,
whose request for eligibility for the HCS-O Program is denied or is not acted
upon with reasonable promptness, or whose HCS-O Program services have been
terminated, suspended, or reduced by TDMHMR is entitled to a fair hearing,
conducted by TDHS, in accordance with 40 TAC §79.1101 et seq., except
that a request for a fair hearing must be submitted to the TDMHMR Office of
Medicaid Administration and received within 90 days from the date of the notice
of denial of eligibility for the HCS-O Program or notice of termination, suspension,
or reduction of HCS-O Program services.
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 December 19, 1997.
TRD-9716979
Ann Utley
Chairman, Texas MHMR Board
Texas Department of Mental Health and Mental Retardation
Effective date: January 8, 1998
Proposal publication date: September 5, 1997
For further information, please call: (512) 206-4516