TITLE health-services

Part I. Texas Department of Health

Chapter 1. Texas Board of Health

Subchapter A. Procedures and Policies

The Texas Department of Health (department) proposes the repeal of §1.2 and amendments to §§1.1, 1.3, 1.5, and 1.7-1.8, concerning procedures and policies of the Board of Health (board). Specifically the sections address the purpose of the sections, organization of the board, meetings of the board, the commissioner of health, and press and public relations. The repeal of the section on membership of the board is proposed in order to delete language which is redundant of state law.

The General Appropriations Act, House Bill 1, Article IX, Rider 167, passed by the 75th Legislature, requires each state agency to review and consider for readoption each rule adopted by that agency pursuant to the Government Code, Chapter 2001 (Administrative Procedure Act). Sections 1.1 - 1.8 have been reviewed and the department has determined that the reasons for adopting these sections, other than §1.2 on membership of the board, continue to exist; however, the language of the sections should be updated and language that is redundant of state law should be deleted. The language is redundant of state law found in the Health and Safety Code, Chapters 11 and 12 relating to appointments of the chair and vice-chair of the board, advisory committees appointed by the board, meetings of the board, and reimbursement of expenses of board members; Open Meetings Act, Texas Government Code, Chapter 551 relating to meetings of governmental bodies; and Texas Civil Statutes, Article 6252-31 relating to dissenting votes in board meetings. In addition to clarifying language throughout the sections, §1.7 provides clarification that the commissioner of health is authorized to provide for the operation of the department and to further delegate to departmental personnel duties delegated or assigned by the board to the commissioner. Section 1.5(e) is added to state that time limits may be established for public comments or testimony at board and committee meetings.

The department published a Notice of Intention to Review the sections as required by Rider 167 in the Texas Register (23 TexReg 9075) on September 4, 1998. No comments were received by the department on these sections.

Susan K. Steeg, General Counsel, has determined that for each year of the first five years the repeal and amended sections are in effect, there will be no fiscal implications to state or local governments as a result of enforcing or administering the sections as proposed.

Ms. Steeg has determined that for each year of the first five years the repeal and amended sections are in effect, the public benefit anticipated as a result of enforcing or administering the sections will be improvement of the language to make the sections more readable for the public and the deletion of language that is redundant of state law. There will no effect on small businesses. There are no economic costs to persons who are required to comply with the sections as proposed. There will be no effect on local employment.

Comments on the proposal may be submitted to Susan K. Steeg, General Counsel, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756, (512) 458-7236. Comments will be accepted for 30 days following publication of the proposal in the Texas Register .

25 TAC §§1.1, 1.3, 1.5, 1.7, 1.8

The amendments are proposed under the Health and Safety Code, Chapters 11 and 12 which allow the board to adopt rules relating to advisory committees and board meetings and §12.001 which provides the board with the authority to adopt rules for its procedures and for the performance of each duty imposed by law on the board, the department, and the commissioner of health.

The amendments affect the Health and Safety Code, Chapter 12 and the General Appropriations Act, House Bill 1, Article IX, Rider 167, passed by the 75th legislature.

§1.1.Purpose.

The purpose of this subchapter [ these sections ] is to establish requirements concerning the organization of the Board of Health [ the ], policies and procedures which the board will follow in implementing the duties imposed by law on the board, and the related responsibilities of the commissioner of health.

§1.3.Organization of the Board of Health .

(a)

Chair and vice-chair. [ The governor, no later than September 1 of each odd-numbered year, shall designate one board member as chair and one member as vice-chair. ]

(1)

The chair shall preside at all board meetings, call special meetings of the board, and provide for [ give ] timely notice of a special meeting to each member. Meetings are described further in §1.5 of this title (relating to Meetings of the Board of Health).

(2)

(No change.)

[(b)

Committees.]

(b)

[ (1) ] Board of health committees.

(1)

The board may establish [ appoint ] standing and special committees consisting of board members to expedite the board's work. The committees will be working extensions of the board.

(2)

The chair may appoint board members to serve on any [ board ] committee [ for a specific purpose if the chair determines that an appointment is necessary ].

[(2)

Advisory committees.]

[ (A)

The board may appoint advisory committees to assist the board in developing public health rules, policies and procedures, and to assist the Department of Health in providing public health services.]

[ (B)

The board shall adopt rules covering the composition, duration, procedures, and expenses of the advisory committees.]

§1.5.Meetings of the Board of Health.

[(a)

The board shall meet in the city of Austin or in other places determined by the board.]

[(b)

The board shall meet at least once each calendar quarter on dates determined by the board and shall hold special meetings at the call of the chair. The chair shall give timely notice to each member of any special meeting.]

(a)

[ (c) ] All meetings of the Board of Health shall comply with the Texas Open Meetings Act, Texas Government Code, Chapter 551.

[(1)

The department shall post notice of each meeting with the secretary of state's office at least seven days prior to the date of the meeting. The notice shall specify the date, time, subject(s) of the meeting.]

[(2)

Special rules exist for a meeting which needs to be convened in a case of emergency or urgent public necessity.]

[ (A)

A case of emergency or urgent public necessity is limited to imminent threats to public health and safety or reasonably unforeseeable situations requiring immediate action.]

[ (B)

The department shall post notice of a meeting involving an emergency or urgent public necessity with the secretary of state at least two hours before the meeting is convened.]

(1)

[ (3) ] All meetings shall be open to the public, except for executive sessions [ which are discussed in paragraph (4) of this subsection ]. All or any part of the public meeting may be recorded by any person in attendance by means of tape recorder, video camera, or any other means of sonic or visual reproduction. The chair will determine the location of any such equipment and the manner in which the recording is conducted, provided that the determination does not prevent or unreasonably impair camera coverage or tape recording.

[(4)

Executive sessions are closed meetings of the board which may be held only as expressly authorized by the Open Meetings Act (Act). Persons who may attend and subjects which may be discussed are described in the Act.]

(2)

[ (5) ] The board must have a quorum present to convene a meeting and to conduct official business. A quorum of the board is four members.

(b)

[ (6) ] The board shall conduct a meeting in accordance with Robert's Rules of Order, latest edition, unless there are rules or statutes that require otherwise.

(c)

[ (7) ] An affirmative vote by a majority of the board membership present and voting is required for the adoption of a rule, policy, or procedure.

[(8)

During a meeting, a board member may dissent against any board action and may enter a written statement of such dissent into the official minutes of the meeting.]

(d)

[ (9) ] The board shall keep official minutes of the meetings as required by the Open Meetings Act. The Office of the Board of Health shall prepare [ prepares ] the minutes, the board must approve [ approves ] them, and the chair and vice-chair must sign them. Before the board approves them, the minutes shall be [ are ] sent to each member for review, comment, or correction prior to approval. The official minutes of all board meetings are kept in the Office of the Board of Health and are available for public review as authorized by the Open Meetings Act.

[(10)

Board members, in performing official duties, shall receive no fixed salary but shall be paid compensatory per diem and reimbursed for meals, lodging, and transportation in accordance with the General Appropriations Act.]

(e)

The chair of the board may limit each person presenting public comments or public testimony on any agenda item to a certain number of minutes by announcing the period when comments or testimony are given. The chair of each board committee may also set time periods for comments or testimony given at committee meetings.

§1.7.Commissioner of Health.

(a)

(No change.)

(b)

The commissioner shall:

(1)

administer and enforce federal and state health laws applicable to the department by issuing orders, making decisions, awarding and executing contracts, and implementing the duties delegated or assigned to the commissioner by the board;

(2)

administer and implement department services, programs, and activities, maintain professional standards within the department, and represent the department as its chief executive. To accomplish this goal, the commissioner is authorized to hire and supervise personnel, establish appropriate organization, acquire suitable administrative, clinical, and laboratory facilities, [ and ] obtain sufficient financial support , provide for the operation of the department, and further delegate to departmental personnel duties delegated or assigned by the board ;

(3)-(5)

(No change.)

§1.8.Press and Public Relations.

(a)

Prior to each Board of Health meeting, copies of the [ preliminary ] agenda shall be sent to the Capitol press corps, governor's office, secretary of state, and Legislative Budget Board.

(b)-(d)

(No change.)

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

Filed with the Office of the Secretary of State, on July 23, 1999.

TRD-9904454

Susan K. Steeg

General Counsel

Texas Department of Health

Earliest possible date of adoption: September 5, 1999

For further information, please call: (512) 458-7236


25 TAC §1.2

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

The repeal is proposed under the Health and Safety Code, Chapters 11 and 12 which allow the board to adopt rules relating to advisory committees and board meetings and §12.001 which provides the board with the authority to adopt rules for its procedures and for the performance of each duty imposed by law on the board, the department, and the commissioner of health.

The repeal affects the Health and Safety Code, Chapter 12 and the General Appropriations Act, House Bill 1, Article IX, Rider 167, passed by the 75th legislature.

§1.2. Membership.

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

Filed with the Office of the Secretary of State, on July 23, 1999.

TRD-9904453

Susan K. Steeg

General Counsel

Texas Department of Health

Earliest possible date of adoption: September 5, 1999

For further information, please call: (512) 458-7236


Chapter 87. Controlled Substances

Subchapter A. Submission of Research Protocols Using Tetrahydrocannibinols

25 TAC §§87.1-87.6

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

The Texas Department of Health (department) proposes the repeal of §§87.1 - 87.6, concerning submission of research protocols using tetrahydrocannibinols (THCs). Specifically, these sections provide the process by which a practitioner may seek exemption from certain sections of the Texas Controlled Substances Act regarding the registration, possession, and delivery of a controlled substance. These sections were intended for a person who wished to submit a research protocol for the medical use of THCs. The repeal of these rules is necessary because they conflict with current federal law.

The General Appropriations Act, House Bill 1, Article IX, Rider 167, enacted by the 75th Texas Legislature, requires that each state agency review and consider for readoption each rule adopted by that agency pursuant to the Government Code, Chapter 2001 (Administrative Procedure Act). The sections have been reviewed and the department has determined that reasons for adopting the sections no longer exist.

The department published a Notice of Intention to Review §§87.1 - 87.6 as required by Rider 167 in the Texas Register (24 TexReg 1002) on February 12, 1999. No comments were received concerning the notice for review of this section.

Cynthia T. Culmo, R.Ph., Director, Drugs and Medical Devices Division, has determined that for each year of the first five-year period the sections are no longer in effect there will be no fiscal implications to state government or local government.

Ms. Culmo also has determined that for each year of the first five years the sections are repealed, the public benefit anticipated as a result of repealing the sections is that the department will be consistent with federal regulations. There will be no effect on small businesses. There are no anticipated economic costs to persons who are required to comply with the sections as repealed. There is no impact on local employment.

Comments on the proposal may be submitted to Cynthia T. Culmo, R.Ph., Director, Drugs and Medical Devices Division, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756, (512) 719-0243. Comments will be accepted for 30 days following publication of the proposal in the Texas Register .

The repeal of the sections is proposed under the Health and Safety Code, §481.205, which provides the department with the authority to adopt necessary regulations pursuant to the enforcement of Chapter 481; and §12.001, which provides the Texas Board of Health (board) with the authority to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health.

The repeals affect the Health and Safety Code, Chapter 481; Chapter 12; and the General Appropriations Act, House Bill 1, Article IX, Rider 167, passed by the 75th Legislature.

§87.1.Definitions.

§87.2.Submission of Protocol for Commissioner's Review.

§87.3.Additional Requirements.

§87.4.Appeals from an Adverse Decision.

§87.5.Confidentiality.

§87.6.Exemption.

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

Filed with the Office of the Secretary of State, on July 23, 1999.

TRD-9904451

Susan K. Steeg

General Counsel

Texas Department of Health

Earliest possible date of adoption: September 5, 1999

For further information, please call: (512) 458-7236


Part II. Texas Department of Mental Health and Mental Retardation

Chapter 406. ICF/MR Programs

Subchapter C. Vendor Payments

25 TAC §406.102

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

The Texas Department of Mental Health and Mental Retardation (TDMHMR) proposes the repeal of §406.102 of Chapter 406, Subchapter C, governing Vendor Payments. This section is being proposed for repeal in order to adopt new §§419.201 through 419.203, §§419.261 through 419.272, §§419.281 and 419.282, and §§419.296 and 419.297 of Chapter 419, Subchapter E, ICF/MR Programs, which address substantially the same issues.

New §§419.201 through 419.203, §§419.261 through 419.272, §§419.281 and 419.282, and §§419.296 and 419.297 and the proposed repeals of §406.102 of Chapter 406, Subchapter C, governing Vendor Payment; §§406.251-409.254 of 25 TAC, Chapter 406, Subchapter F, governing Personal Finances and Funds; and §406.311 of 25 TAC, Chapter 406, Subchapter G, governing Additional Facility Responsibilities are contemporaneously proposed for public comment in this issue of the Texas Register. The new rules are part of a comprehensive reorganization of chapters and subchapters in TDMHMR's portion of the Texas Administrative Code and are part of TDMHMR's efforts to fulfill the requirements of Section 167 of Article IX of the 1997 General Appropriations Act.

Dave Wanser, director, Behavioral Health Services, has determined that for each year of the first five years the proposed repeal is in effect, the public benefit expected is the ability of TDMHMR to adopt new rules that provide more effective and efficient policies and procedures to guide the provision of service coordination. There is no probable economic cost to persons required to comply with the new rules. It is not anticipated that the proposed repeal would have an adverse economic effect on small businesses because they do not participate in the service coordination program. It is not anticipated that the proposed repeal will affect a local economy.

A public hearing will be held at 9:30 a.m. on August 20, 1999, in room 2-240 of the main TDMHMR Central Office building (Building 2), 909 West 45th Street, Austin, Texas, to accept oral and written testimony concerning the proposal. Persons needing an accommodation to attend the hearing and persons with special needs requiring assistance should contact Sheila Wilkins, Office of Policy Development, at least 72 hours prior to the hearing by calling (512) 206-4516. Persons with hearing impairments may also call TTY-Message - Texas Relay toll-free at (800) 735-2988.

Comments on the proposal may be submitted to Linda Logan, director, Policy Development, Texas Department Mental Health and Mental Retardation, P.O. Box 12668, Austin, TX 78711-2668, within 30 days of publication of this notice.

The rule is proposed for repeal under the Texas Health and Safety Code, §532.015(a), which provides TDMHMR with broad rulemaking authority; the Texas Government Code, §531.021(a), and the Texas Human Resources Code §32.021(a), which provide the Texas Health and Human Services Commission (THHSC) with the authority to administer the federal medical assistance (Medicaid) program in Texas; Acts 1995, 74th Texas Legislature, Chapter 6, §1, (Senate Bill 509), which clarifies the authority of THHSC to delegate the operation of all or part of a Medicaid program to a health and human services agency; and the Human Resources Code, §32.021(c), which provides an agency operating part of the Medicaid program with the authority to adopt necessary rules for the proper and efficient operation of the program. THHSC has designated TDMHMR as the operating agency for the Medicaid service coordination program.

The section affects the Health and Safety Code, §532.015, Human Resources Code, §32.021, and Government Code, §531.021.

§406.102.Applied Income and the Daily Reimbursement Rate.

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

Filed with the Office of the Secretary of State, on July 26, 1999.

TRD-9904490

Charles Cooper

Chairman, Texas MHMR Board

Texas Department of Mental Health and Mental Retardation

Earliest possible date of adoption: September 5, 1999

For further information, please call: (512) 206-4516


Subchapter F. Personal Finances and Funds

25 TAC §§406.251-406.254

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

The Texas Department of Mental Health and Mental Retardation (TDMHMR) proposes the repeals of §§406.251-409.254 of 25 TAC, Chapter 406, Subchapter F, governing Personal Finances and Funds. These sections are being proposed for repeal in order to adopt new §§419.201 through 419.203, §§419.261 through 419.272, §§419.281 and 419.282, and §§419.296 and 419.297 of Chapter 419, Subchapter E, ICF/MR Programs, which address substantially the same issues.

New §§419.201 through 419.203, §§419.261 through 419.272, §§419.281 and 419.282, and §§419.296 and 419.297 and the proposed repeals of §406.102 of Chapter 406, Subchapter C, governing Vendor Payment; §§406.251-409.254 of 25 TAC, Chapter 406, Subchapter F, governing Personal Finances and Funds; and §406.311 of 25 TAC, Chapter 406, Subchapter G, governing Additional Facility Responsibilities are contemporaneously proposed for public comment in this issue of the Texas Register. The new rules are part of a comprehensive reorganization of chapters and subchapters in TDMHMR's portion of the Texas Administrative Code and are part of TDMHMR's efforts to fulfill the requirements of Section 167 of Article IX of the 1997 General Appropriations Act.

Dave Wanser, director, Behavioral Health Services, has determined that for each year of the first five years the proposed repeals are in effect, the public benefit expected is the ability of TDMHMR to adopt new rules that provide more effective and efficient policies and procedures to guide the provision of service coordination. There is no probable economic cost to persons required to comply with the new rules. It is not anticipated that the proposed repeals would have an adverse economic effect on small businesses because they do not participate in the service coordination program. It is not anticipated that the proposed repeals will affect a local economy.

A public hearing will be held at 9:30 a.m. on August 20, 1999, in room 2-240 of the main TDMHMR Central Office building (Building 2), 909 West 45th Street, Austin, Texas, to accept oral and written testimony concerning the proposal. Persons needing an accommodation to attend the hearing and persons with special needs requiring assistance should contact Sheila Wilkins, Office of Policy Development, at least 72 hours prior to the hearing by calling (512) 206-4516. Persons with hearing impairments may also call TTY-Message - Texas Relay toll-free at (800) 735-2988.

Comments on the proposal may be submitted to Linda Logan, director, Policy Development, Texas Department Mental Health and Mental Retardation, P.O. Box 12668, Austin, TX 78711-2668, within 30 days of publication of this notice.

The rules are proposed for repeal under the Texas Health and Safety Code, §532.015(a), which provides TDMHMR with broad rulemaking authority; the Texas Government Code, §531.021(a), and the Texas Human Resources Code §32.021(a), which provide the Texas Health and Human Services Commission (THHSC) with the authority to administer the federal medical assistance (Medicaid) program in Texas; Acts 1995, 74th Texas Legislature, Chapter 6, §1, (Senate Bill 509), which clarifies the authority of THHSC to delegate the operation of all or part of a Medicaid program to a health and human services agency; and the Human Resources Code, §32.021(c), which provides an agency operating part of the Medicaid program with the authority to adopt necessary rules for the proper and efficient operation of the program. THHSC has designated TDMHMR as the operating agency for the Medicaid service coordination program.

The sections affect the Health and Safety Code, §532.015, Human Resources Code, §32.021, and Government Code, §531.021.

§406.251.Personal Funds.

§406.252.Expenditures of Personal Funds.

§406.253.Protection of Funds.

§406.254.Refunds.

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

Filed with the Office of the Secretary of State, on July 26, 1999.

TRD-9904491

Charles Cooper

Chairman, Texas MHMR Board

Texas Department of Mental Health and Mental Retardation

Earliest possible date of adoption: September 5, 1999

For further information, please call: (512) 206-4516


Subchapter G. Additional Facility Responsiblities

25 TAC §406.311

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

The Texas Department of Mental Health and Mental Retardation (TDMHMR) proposes the repeal of §406.311 of 25 TAC, Chapter 406, Subchapter G, governing Additional Facility Responsibilities. These section is being proposed for repeal in order to adopt new §§419.201 through 419.203, §§419.261 through 419.272, §§419.281 and 419.282, and §§419.296 and 419.297 of Chapter 419, Subchapter E, ICF/MR Programs, which address substantially the same issues.

New §§419.201 through 419.203, §§419.261 through 419.272, §§419.281 and 419.282, and §§419.296 and 419.297 and the proposed repeals of §406.102 of Chapter 406, Subchapter C, governing Vendor Payment; §§406.251-409.254 of 25 TAC, Chapter 406, Subchapter F, governing Personal Finances and Funds; and §406.311 of 25 TAC, Chapter 406, Subchapter G, governing Additional Facility Responsibilities are contemporaneously proposed for public comment in this issue of the Texas Register. The new rules are part of a comprehensive reorganization of chapters and subchapters in TDMHMR's portion of the Texas Administrative Code and are part of TDMHMR's efforts to fulfill the requirements of Section 167 of Article IX of the 1997 General Appropriations Act.

Dave Wanser, director, Behavioral Health Services, has determined that for each year of the first five years the proposed repeal is in effect, the public benefit expected is the ability of TDMHMR to adopt new rules that provide more effective and efficient policies and procedures to guide the provision of service coordination. There is no probable economic cost to persons required to comply with the new rules. It is not anticipated that the proposed repeal would have an adverse economic effect on small businesses because they do not participate in the service coordination program. It is not anticipated that the proposed repeal will affect a local economy.

A public hearing will be held at 9:30 a.m. on August 20, 1999, in room 2-240 of the main TDMHMR Central Office building (Building 2), 909 West 45th Street, Austin, Texas, to accept oral and written testimony concerning the proposal. Persons needing an accommodation to attend the hearing and persons with special needs requiring assistance should contact Sheila Wilkins, Office of Policy Development, at least 72 hours prior to the hearing by calling (512) 206-4516. Persons with hearing impairments may also call TTY-Message - Texas Relay toll-free at (800) 735-2988.

Comments on the proposal may be submitted to Linda Logan, director, Policy Development, Texas Department Mental Health and Mental Retardation, P.O. Box 12668, Austin, TX 78711-2668, within 30 days of publication of this notice.

The rule is proposed for repeal under the Texas Health and Safety Code, §532.015(a), which provides TDMHMR with broad rulemaking authority; the Texas Government Code, §531.021(a), and the Texas Human Resources Code §32.021(a), which provide the Texas Health and Human Services Commission (THHSC) with the authority to administer the federal medical assistance (Medicaid) program in Texas; Acts 1995, 74th Texas Legislature, Chapter 6, §1, (Senate Bill 509), which clarifies the authority of THHSC to delegate the operation of all or part of a Medicaid program to a health and human services agency; and the Human Resources Code, §32.021(c), which provides an agency operating part of the Medicaid program with the authority to adopt necessary rules for the proper and efficient operation of the program. THHSC has designated TDMHMR as the operating agency for the Medicaid service coordination program.

The section affects the Health and Safety Code, §532.015, Human Resources Code, §32.021, and Government Code, §531.021.

§406.311.Children's Durable Medical Equipment.

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

Filed with the Office of the Secretary of State, on July 26, 1999.

TRD-9904492

Charles Cooper

Chairman, Texas MHMR Board

Texas Department of Mental Health and Mental Retardation

Earliest possible date of adoption: September 5, 1999

For further information, please call: (512) 206-4516


Chapter 419. Medicaid State Operating Agency

Subchapter E. ICF/MR Programs

25 TAC §§419.201-419.203, 419.261-419.272, 419.281, 419.282, 419.296, 419.297

The Texas Department of Mental Health and Mental Retardation (TDMHMR) proposes new §§419.201 through 419.203, §§419.261 through 419.272, §§419.281 and 419.282, and §§419.296 and 419.297 of Chapter 419, Subchapter E, ICF/MR Programs. The repeals of §406.102 of Chapter 406, Subchapter C, governing Vendor Payments; §406.251 through §406.254 of Chapter 406, Subchapter F, governing Personal Finances and Funds, and §406.311 of Chapter 406, Subchapter G, governing Additional Facility Responsibilities are published contemporaneously in this issue of the Texas Register . The new rules are part of a comprehensive reorganization of chapters and subchapters in TDMHMR's portion of the Texas Administrative Code and are part of TDMHMR's efforts to fulfill the requirements of Section 167 of Article IX of the 1997 General Appropriations Act.

The proposed new rules would incorporate selected provisions, with revisions, from existing §406.251 through §406.254 of Chapter 406, Subchapter F, governing Personal Finances and Funds. New Division 1, General Requirements, §§ 419.201 through 419.203 would set out the purpose, application, and definitions for the subchapter. New Division 5, Personal Funds, §§419.261 through 419.272 would describe the policies and procedures for an intermediate care facility for persons with mental retardation (ICF/MR) that ensure the funds of individuals served by the ICF/MR are expended in the individuals' best interest and accurately accounted for. New Division 7, Additional Facility Responsibilities, §419.281, Children's Durable Medical Equipment, is substantially the same as existing §406.311, which is contemporaneously proposed for repeal, and §419.282, Permanency Planning for Children, would require a program provider to develop a permanency plan that is an integral part of the individual program plan for each child residing in the facility, whether on a temporary or long-term basis. This is a new section required by the Texas Government Code, §531.153. Division 8, References and Distribution, §§419.296 and 419.297 would set out the reference and distribution lists for the subchapter.

William R. Campbell, chief financial officer, has determined that, for each of the first five years the proposed new rules are in effect, enforcing or administering the rules would not have foreseeable implications relating to costs or revenues for state or local governments.

Ernest McKenney, director, Medicaid Administration, has determined that for each year of the first five years the proposed rules are in effect, the public benefits expected as a result of adopting the proposed rules are clearer and more effective policies governing the protection and management of the personal funds of individuals residing in ICF/MRs. In addition, the requirement that children's individual program plans incorporate permanency planning will promote the policy of helping children in ICF/MRs become part of a family, when possible. The proposed rules do not impose significant new requirements on ICF/MR providers and, therefore, the probable economic cost to persons required to comply with the rule is minimal. It is not anticipated that the proposed rules will have an adverse economic effect on small businesses because they impose no significant new requirements.

A public hearing will be held at 9:30 a.m. August 20, 1999, in room 2-240 of the main TDMHMR Central Office building (Building 2), 909 West 45th Street, Austin, Texas, to accept oral and written testimony concerning the proposal. Persons needing an accommodation to attend the hearing and persons with special needs requiring assistance should contact Sheila Wilkins, Office of Policy Development, at least 72 hours prior to the hearing by calling (512) 206-4516. Persons with hearing impairments may call TTY-Message - Texas Relay toll-free at (800) 735-2988.

Comments on the proposal may be submitted to Linda Logan, director, Policy Development, Texas Department Mental Health and Mental Retardation, P.O. Box 12668, Austin, TX 78711-2668, within 30 days of publication of this notice.

The new rules are proposed under the Texas Health and Safety Code, §532.015(a), which provides TDMHMR with broad rulemaking authority; the Texas Government Code, §531.021(a), and the Texas Human Resources Code §32.021(a), which provide the Texas Health and Human Services Commission (THHSC) with the authority to administer the federal medical assistance (Medicaid) program in Texas; Acts 1995, 74th Texas Legislature, Chapter 6, §1, (Senate Bill 509), which clarifies the authority of THHSC to delegate the operation of all or part of a Medicaid program to a health and human services agency; and the Human Resources Code, §32.021(c), which provides an agency operating part of the Medicaid program with the authority to adopt necessary rules for the proper and efficient operation of the program. THHSC has designated TDMHMR as the operating agency for the ICF/MR Program.

The rules affect the Health and Safety Code, §532.015, Human Resources Code, §32.021, and Government Code, §531.021.

§419.201.Purpose.

The purpose of this subchapter is to describe:

(1)

the policies and procedures for the Intermediate Care Facilities with Mental Retardation (ICF/MR) Program in Texas;

(2)

requirements and rights of providers in the ICF/MR Program; and

(3)

rights protections for individuals applying for and receiving ICF/MR Program services.

§419.202.Application.

This subchapter applies to applicants who want to participate as providers in the ICF/MR Program and to providers of ICF/MR Program services in Texas.

§419.203.Definitions.

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

(1)

Applied income - The portion of an individual's cost of care that the individual is responsible for paying. The amount of an individual's applied income is determined by a TDHS Medicaid eligibility worker and depends on the individual's total income.

(2)

Budgeted amount - The amount of cash that may be disbursed to an individual for discretionary spending without obtaining a sales receipt for the expenditure.

(3)

Committee - The specially constituted committee designated by the program provider in accordance with 42 CFR §483.440(f)(3)(i).

(4)

CFR - Code of Federal Regulations.

(5)

Department - The Texas Department of Mental Health and Mental Retardation (TDMHMR).

(6)

Facility - An intermediate care facility for persons with mental retardation or a related condition.

(7)

ICF/MR Program - The Intermediate Care Facilities for Persons with Mental Retardation or a Related Condition Program which provides Medicaid-funded residential services to individuals with mental retardation or a related condition.

(8)

IDT (Interdisciplinary team) - Mental retardation professionals and paraprofessionals and other concerned persons, as appropriate, who possess the knowledge, skills, and expertise to develop an individual's IPP.

(9)

IPP (individual program plan) - A plan developed by an individual's IDT that identifies the individual's training, treatment, and habilitation needs and describes services to meet those needs.

(10)

Individual - A person with mental retardation or a related condition residing in a facility.

(11)

LAR (legally authorized representative) - A person authorized by law to act on behalf of an individual with regard to a matter described in this subchapter, and may include a parent, guardian, or managing conservator of a minor individual, a guardian of an adult individual, or a personal representative of a deceased individual.

(12)

Mental retardation - Significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the developmental period (birth to 18 years of age.)

(13)

Payment plan - A plan developed by a TDHS Medicaid eligibility worker that specifies the amount of an individual's applied income.

(14)

Permanency planning - A philosophy and planning process that focuses on the outcome of family support by facilitating a permanent living arrangement with the primary feature of an enduring and nurturing parental relationship.

(15)

Personal funds - The funds that belong to an individual, including earned income, social security benefits, gifts, and inheritances.

(16)

Petty cash fund - Personal funds managed by the program provider that are maintained for individuals' small cash expenditures.

(17)

Pooled account - A trust fund account containing the personal funds of more than one individual.

(18)

Program provider - A person with whom the department has an provider agreement.

(19)

Provider agreement - A written agreement that obligates the department to pay money to a person for providing goods or services under the ICF/MR Program.

(20)

Related condition - A severe and chronic disability that:

(A)

is attributed to:

(i)

cerebral palsy or epilepsy; or

(ii)

any other condition, other than mental illness, found to be closely related to mental retardation because the condition results in impairment of general intellectual functioning or adaptive behavior similar to that of individuals with mental retardation, and requires treatment or services similar to those required for individuals with mental retardation;

(B)

is manifested before the individual reaches age 22;

(C)

is likely to continue indefinitely; and

(D)

results in substantial functional limitation in at least three of the following areas of major life activity:

(i)

self-care;

(ii)

understanding and use of language;

(iii)

learning;

(iv)

mobility;

(v)

self-direction; and

(vi)

capacity for independent living.

(21)

Sales receipt - A written statement issued by the seller that includes:

(A)

the date it was written or created;

(B)

the cost of the item or service;

(C)

the specific item or service purchased; and

(D)

the name of the seller.

(22)

Separate account - A trust fund account containing the personal funds of only one individual.

(23)

Trust fund account - A bank account in the program provider's control that contains personal funds.

(24)

Unclaimed personal funds - Personal funds managed by the program provider that have not been transferred to the individual or LAR within 30 days after the individual's discharge.

(25)

Unidentified personal funds - Personal funds managed by the program provider for which the program provider cannot identify ownership.

(26)

TDHS - The Texas Department of Human Services.

§419.261.Protecting Individuals' Personal Funds.

(a)

The program provider must maintain the records required by this subchapter according to the generally accepted accounting principles of the American Institute of Certified Public Accountants.

(b)

The program provider must develop and implement written policies and procedures regarding personal funds that protect the financial interest of individuals and, at a minimum, require the program provider:

(1)

to instruct individuals in handling personal funds consistent with the individuals' abilities and understanding; and

(2)

to allow individuals to hold and manage their personal funds to the extent of their abilities.

(c)

The program provider must reimburse individuals for personal funds lost or stolen while the funds are under the program provider's control.

§419.262.Notice Regarding Personal Funds.

At the time of admission to the facility, and if changes to services or charges occur, the program provider must provide each individual or LAR with written notification containing the following information:

(1)

a statement that the individual (if the individual is determined to have the ability to make such a decision) or LAR, must decide who manages the individual's personal funds;

(2)

a list of items and services included in the program provider's ICF/MR reimbursement rate for which the individual will not be charged;

(3)

a list of items and services for which the individual may be charged;

(4)

a statement that the individual or LAR may have the Social Security Administration appoint a representative payee to receive the individual's federal benefits in accordance with 20 CFR Part 416, Subpart F;

(5)

a statement that the program provider will make available the individual's personal funds record upon the request of the individual or LAR within 72 hours after receiving the request; and

(6)

at the request of the individual or LAR, or if the individual is discharged or transferred from the facility, the program provider will disburse the individual's personal funds within 30 calendar days after the request, discharge or transfer.

§419.263.Determining Management of Personal Funds.

(a)

At the time an individual is admitted to the facility, the IDT must determine if the individual has the ability to:

(1)

manage his or her personal funds; and

(2)

decide who manages his or her personal funds.

(b)

The determination must be based on an assessment of the individual's understanding of financial management, including:

(1)

mathematical concepts;

(2)

budgeting personal funds;

(3)

monetary denominations; and

(4)

financial obligations.

(c)

The results of the assessment and the IDT's determination must be documented, signed by the IDT, and made a part of the individual's IPP.

(d)

If an individual has the ability to decide who manages his or her personal funds or if the individual has an LAR, the program provider must allow the individual or LAR to choose one of the following to manage his or her personal funds and document such choice in the individual's IPP:

(1)

the individual, if the individual has the ability to manage his or her personal funds;

(2)

the individual's LAR;

(3)

the program provider; or

(4)

another person.

(e)

If an individual does not have the ability to decide who manages the individual's personal funds and the individual has no LAR, the program provider must manage the individual's personal funds in accordance with this subchapter.

(f)

The program provider must reassess an individual's understanding of financial management at least annually and if the program provider has reason to believe that the individual's ability has changed.

§419.264.Items and Services Provided by the Program Provider.

Personal funds must not be expended for items and services that are the program provider's responsibility because they are included in the ICF/MR reimbursement rate or are covered by other Medicaid programs. These items and services include:

(1)

medical services and therapies, e.g., physical exams, physical therapy, occupational therapy, and nutritional, speech, audiological, psychological, social, and medical evaluations;

(2)

prescribed and over-the-counter medication;

(3)

medical equipment and supplies, e.g., nasogastric tubes, feeding pumps, catheters, sheepskins, and egg crate pads;

(4)

laboratory services;

(5)

eye exams and eyeglasses, except for the difference between the Medicaid payment and the actual cost of the eyeglasses if the individual requests a specific style or feature;

(6)

non-cosmetic dental services and items, e.g., intra- and extra-oral examinations, prescribed dental treatments and follow-up visits, dentures, braces, crowns, toothbrushes, toothpaste, mouthwash, dental floss, and disclosing solution;

(7)

specialized equipment and adaptive devices, e.g., hearing aids and hearing aid batteries;

(8)

training and habilitation services, e.g., vocational training, congregate training, and day activity services;

(9)

behavioral reinforcers used in behavior modification programs, e.g., candy, soft drinks, cereal, coffee, toys, and magazines;

(10)

meals, snacks, and special diets, as listed on the program provider's menu, whether provided at the facility or elsewhere;

(11)

non-cosmetic personal hygiene items, e.g., shampoo, conditioner, soap, deodorant, anti-perspirant, body lotion, insect repellant, suncreen, shaving cream, electric or safety razors, razor blades, comb, hair brush, facial tissues, toilet tissue, sanitary napkins, tampons, and diapers;

(12)

shampooing, haircutting, basic hairstyling, and shaving, including mustache and beard trimming;

(13)

laundering personal clothing;

(14)

facility furnishings and housewares, e.g., bedroom furniture, kitchenware, baths towels, dish towels, and bed linens;

(15)

repairing and maintaining the facility's physical plant, including training and day activity areas;

(16)

recreational and special activities provided with staff supervision, e.g., meals, lodging, registrations, and tickets;

(17)

transportation expenses to and from:

(A)

an activity included in an individual's IPP including health care services, congregate training, day activity services and supported employment, except for competitive employment;

(B)

an activity provided with staff supervision; or

(C)

a program provider-planned activity;

(18)

banking charges, including service fees and check printing charges, if an individual's personal funds are managed in a pooled account or if the program provider chooses to manage those funds in a separate account;

(19)

managing an individual's personal funds; and

(20)

a charge incurred if the program provider mismanages an individual's personal funds.

§419.265.Items and Services Purchased with Personal Funds.

(a)

Items and services that may be purchased with personal funds include:

(1)

an item or service that the program provider is responsible for providing, if the individual requests a specific type or brand of item or service that the program provider does not provide, and the program provider documents in the individual's personal record:

(A)

the individual's written, signed request for a specific type or brand and the reason a specific type or brand has been requested;

(B)

the type or brand that is provided at the program provider's expense; and

(C)

the reason the program provider does not provide the type or brand requested;

(2)

the difference between the Medicaid payment and the actual cost of the eyeglasses, if the individual chooses a style or feature not paid for by Medicaid;

(3)

clothing;

(4)

cosmetic dental procedures;

(5)

transportation costs, other than those described in §419.264 of this title (relating to Items and Services Provided by the Program Provider):

(A)

if reimbursement to third parties for private transportation does not exceed the current state mileage reimbursement rate; and

(B)

if adequate documentation, including therapeutic leave records, is provided to the program provider to support the expenditure;

(6)

repair or replacement of personal property that is damaged, lost, or stolen by the individual, if the expenditure is approved by the committee;

(7)

snacks and meals, if the individual chooses items not listed on the program provider's menu;

(8)

the individual's budgeted amount;

(9)

recreational activities that are independently chosen by the individual and provided without staff supervision;

(10)

dry cleaning;

(11)

hair setting, permanent waves, hair color treatments, and beauty supplies, such as hair rollers and hair spray;

(12)

cosmetics and perfume;

(13)

cosmetic manicures, pedicures, and facials;

(14)

bed hold charges;

(15)

school supplies, school fees, and other educational expenses;

(16)

banking fees, if the individual manages his or her personal funds or the individual requests that the program provider manage his or her personal funds in a separate account; and

(17)

applied income.

(b)

Items purchased with an individual's personal funds must not be available for general use by employees or other individuals.

§419.266.Program Provider-Managed Personal Funds.

(a)

Accounting for personal funds. The program provider must ensure that:

(1)

a complete accounting of personal funds entrusted to the program provider is maintained;

(2)

personal funds are not commingled with program provider funds or the funds of any person other than another individual; and

(3)

personal funds are only expended for the individual's use and benefit and in a manner and for purposes determined to be in the individual's best interest.

(b)

Account Requirements. The program provider must manage personal funds in a trust fund account.

(1)

The program provider may manage personal funds in a pooled trust fund account for more than one individual or a separate trust fund account for each individual. If the program provider chooses a pooled account, an individual may request and receive a separate account. The program provider may also maintain some personal funds in a petty cash fund.

(2)

Trust fund accounts must be insured under federal or state law.

(3)

The program provider must retain all bank statements for trust fund accounts.

(4)

The program provider must reconcile each bank statement with the account ledger and personal funds ledger within 30 days after receiving the bank statement.

(c)

Types of Accounts.

(1)

Pooled accounts. If the program provider manages personal funds in a pooled account, the program provider must:

(A)

maintain an account ledger that separately identifies each financial transaction, including:

(i)

the name of the individual for whom the transaction was made;

(ii)

the date and amount of the transaction; and

(iii)

the balance after the transaction;

(B)

title the account "Trustee (Program provider's Name), Individuals' Trust Fund Account;" and

(C)

if the personal funds of Medicaid and private-pay individuals are pooled, obtain a signed, dated statement from private pay individuals allowing the program provider to release financial information to TDMHMR, TDHS, Texas Attorney General's Medicaid Fraud Control Unit, and US Department of Health and Human Services.

(2)

Separate Accounts. If the program provider manages personal funds in a separate account, the program provider must:

(A)

maintain an account ledger that identifies each financial transaction, including:

(i)

the date and amount of the deposit and transaction, including interest; and

(ii)

the balance after the transaction; and

(B)

title the account "Trustee (Program Provider's Name), (Individual's Name) Trust Fund Account."

(d)

Petty Cash Fund. If the program provider maintains some personal funds in a petty cash fund, the program provider must:

(1)

set a limit on the amount maintained in the petty cash fund;

(2)

set a limit on the amount of a single expenditure from the petty cash fund;

(3)

maintain a petty cash fund ledger that includes:

(A)

the date and amount of each transaction;

(B)

the name of the individual for whom each transaction was made; and

(C)

the balance after each transaction.

(e)

Interest. If personal funds accrue interest, the program provider must prorate and distribute the interest earned to each participating individual.

(f)

Depositing personal funds. If the program provider manages an individual's personal funds, the program provider must deposit in a trust fund account all funds that it receives on behalf of the individual.

(g)

Access to personal funds.

(1)

If the program provider manages an individual's personal funds, the program provider must, based on the individual's assessment described in §419.263 of this title (relating to Determining Management of Personal Funds), determine:

(A)

if there is a need for a budgeted amount and, if so, set the amount; and

(B)

if there is a need to restrict the individual's access to personal funds and, if so, make a recommendation to the committee.

(2)

If a recommendation is made to the committee to restrict an individual's access to personal funds, the committee's decision is documented, signed by the committee members, and made a part of the individual's IPP.

(h)

Personal funds record.

(1)

The program provider must maintain a personal funds record for each individual that includes:

(A)

the name of the individual;

(B)

the name of the individual's LAR and representative payee, as applicable;

(C)

the date of the individual's admission to the facility;

(D)

the individual's budgeted amount;

(E)

the account number and location of all accounts in which the individual's personal funds are managed;

(F)

a personal ledger that includes the date and amount of each transaction and the balance after each transaction; and

(G)

contribution acknowledgments, if any.

(2)

The balance shown on a personal ledger should not be less than zero. If at any time the balance is less than zero, the program provider must reimburse the individual for the amount that increases the balance to zero.

(3)

At least quarterly and within 72 hours after receiving a request from the individual or LAR, the program provider must provide to the individual or LAR a copy of the individual's personal ledger.

(i)

Documenting expenditures and deposits.

(1)

Expenditures.

(A)

Except as provided in subparagraph (C) of this paragraph, the program provider must retain a sales receipt for each expenditure. If a sales receipt documents an expenditure for more than one individual, the program provider must indicate on the sales receipt the amount allocated to each individual.

(B)

The program provider must explain each expenditure to the individual and request that the individual sign the receipt. A witness to the expenditure must sign the receipt if the program provider determines that the individual does not understand the explanation, the individual does not sign the receipt, or the individual's signature is illegible. The witness must not be responsible for managing personal funds or responsible for supervising persons performing such duties.

(C)

A sales receipt is not required for an expenditure:

(i)

if the program provider makes a purchase on behalf of an individual from a vending machine;

(ii)

if an expenditure is within the individual's budgeted amount and the program provider obtains an acknowledgment signed by the individual indicating that the funds were received;

(iii)

if the program provider releases funds in response to a written request in accordance with §419.267 of this title (relating to Requests for Personal Funds); or

(iv)

if the program provider obtains written approval for alternative documentation from the Office of Medicaid Administration before the expenditure is made.

(2)

Deposits. The program provider must retain a bank-issued deposit slip for each deposit.

§419.267.Requests for Personal Funds.

If the program provider receives a request to expend an individual's personal funds and the program provider determines that the expenditure is in the best interest of the individual, the program provider may release such funds to the requestor.

(1)

The request must be written, signed by the requestor, and specify the amount and purpose of the expenditure.

(2)

A check for an amount that exceeds the individual's budgeted amount is not considered a written request for personal funds, even if it is written and signed by the individual.

(3)

For the purposes of this section, program provider staff may not request personal funds.

§419.268.Closing Program Provider-Managed Trust Fund Accounts.

(a)

Ownership change. Within 30 days after the effective date of a change in facility ownership, the previous program provider must:

(1)

reconcile each bank statement with the trust fund account ledger and the personal funds ledger;

(2)

provide the new program provider with a list of all individuals whose personal funds were managed by the previous program provider and their trust fund account balances and personal funds ledger balance as of the effective date of the transfer;

(3)

transfer to the new program provider all personal funds managed by the program provider;

(4)

retain a receipt from the new program provider indicating the amount of the transfer; and

(5)

return to TDMHMR any unidentified personal funds.

(b)

Written notice. If the individual or LAR provides written notice that another person is chosen to manage the individual's personal funds, the program provider must, within 30 days after receiving the notice:

(1)

reconcile the individual's bank statement with the account ledger and the personal funds ledger;

(2)

transfer to the person chosen all of the individual's personal funds;

(3)

retain a receipt from the person indicating the amount of the transfer; and

(4)

provide to the person a copy of the individual's current personal funds record.

(c)

Discharge. If the individual is discharged from the facility, the program provider must, within 30 days after the discharge:

(1)

reconcile the individual's bank statement with the account ledger and personal funds ledger;

(2)

transfer all personal funds managed by the program provider:

(A)

to the admitting facility, if the individual is discharged to another facility; or

(B)

to the individual or LAR, if the individual is not discharged to another facility;

(3)

retain a receipt from the admitting facility, individual, or LAR indicating the amount of the transfer; and

(4)

provide to the admitting facility, individual, or LAR the individual's current personal funds record.

(d)

Unclaimed personal funds. Within 180 calendar days after identifying any unclaimed personal funds, the program provider must make a good faith effort to locate the individual or LAR. If the individual or LAR:

(1)

is located, the program provider must transfer the funds to the individual or LAR; or

(2)

is not located, the program provider must send to TDMHMR, Attn: Cashier, P. O. Box 12668, Austin, Texas 78691:

(A)

a statement that the funds are unclaimed;

(B)

the program provider's name, address, and vendor identification number;

(C)

the individual's name, social security number, date of birth, and last known address;

(D)

the LAR's name and address;

(E)

a check payable to TDMHMR for the amount of the unclaimed personal funds; and

(F)

documentation of the program provider's efforts to locate the individual or LAR.

§419.269.Refunds.

The program provider must refund any private payment it received for services provided during a period covered by Medicaid, including retroactive coverage, within 30 days after accepting the Medicaid payment.

§419.270.Applied Income.

(a)

The program provider may only collect the amount of applied income specified on an individual's payment plan.

(b)

If an individual does not have a payment plan or the individual's earned or unearned income changes, the program provider must contact a TDHS Medicaid eligibility worker to request a payment plan. The program provider must not collect an increased amount of applied income from the individual until the TDHS Medicaid eligibility worker develops or revises the payment plan.

(c)

The program provider must maintain an applied income ledger for each individual that includes the amount of the:

(1)

individual's earned and unearned income;

(2)

applied income owed by the individual;

(3)

applied income paid by the individual;

(4)

the difference between the applied income owed and the applied income paid by the individual; and

(5)

bed hold charges paid by the individual.

(d)

Within 72 hours after receiving a request from the individual or LAR, the program provider must provide to the individual or LAR a copy of the individual's applied income ledger.

§419.271.Contributions.

If the individual or LAR makes a contribution to the program provider using personal funds, the program provider and the contributor must sign and date an acknowledgement that the program provider's services are not predicated on a contribution and the contribution is voluntary. The acknowledgement must be made a part of the individual's personal funds record.

§419.272.Auditing.

(a)

The department periodically audits the program provider to monitor compliance with this subchapter. The department notifies the program provider of its audit date.

(b)

The records and supporting documents required by this subchapter must be made available during an audit, including:

(1)

personal funds records;

(2)

account ledgers;

(3)

applied income ledgers;

(4)

bank statements for trust fund accounts; and

(5)

sales receipts.

(c)

If the records required by this subchapter are not made available by the program provider or the department determines that the records are not auditable, the department may impose a vendor hold on state Medicaid payments until the records are available and auditable or may terminate the program provider's contract.

(d)

The department provides the program provider with a report of the audit findings, including corrective actions that must be taken by the program provider and internal control recommendations. Corrective actions include making refunds to individuals, entering ledger adjustments, returning unidentified funds to the department, and establishing and maintaining records and systems.

(e)

If the program provider disagrees with the corrective actions, the program provider may request an administrative hearing in accordance with Chapter 419, Subchapter B, of this title (relating to Adverse Actions).

(f)

The department may impose a vendor hold on state Medicaid payments or terminate the program provider's contract if the report of audit findings requires corrective actions and the program provider does not:

(1)

request an administrative hearing within 15 days after receiving the report of audit findings; or

(2)

complete corrective actions within 60 days after receiving the report of audit findings.

§419.281.Children's Durable Medical Equipment.

In accordance with §32.024 of the Human Resources Code, a program provider who arranges for durable medical equipment for a child residing in the facility must:

(1)

ensure that the child receives the equipment prescribed, the equipment fits properly, if applicable, and the child or the child's parent or guardian, as appropriate considering the age of the child, receives instruction regarding the equipment's use; and

(2)

maintain a record of compliance with the requirements of paragraph (1) of this section in the child's record.

§419.282.Permanency Planning for Children.

As required by Texas Government Code, §531.153, a program provider must incorporate permanency planning as an integral part of the IPP for each child residing in the facility on a temporary or long-term basis. The permanency planning must ensure that the child's basic needs for safety, security, and stability are met.

§419.296.References.

Regulations referenced in this subchapter include:

(1)

42 CFR §483.440(f)(3)(i);

(2)

20 CFR Part 416, Subpart F;

(3)

Human Resources Code, §32.024; and

(4)

Texas Government Code, §531.153.

§419.297.Distribution.

(a)

Copies of this subchapter shall be distributed to:

(1)

members of the Texas Mental Health and Mental Retardation Board;

(2)

executive, management, and program staff of the department's Central Office;

(3)

chairs of boards of trustees of local MRAs;

(4)

CEOs of local MRAs and designated providers; and

(5)

interested advocates and advocacy organizations.

(b)

The CEOs of local MRAs and designated providers are responsible for distributing copies of this subchapter to:

(1)

appropriate staff;

(2)

program providers;

(3)

agents;

(4)

any consumer receiving services and supports who requests a copy;

(5)

family members and advocates of consumers who request a copy;

(6)

any employee who requests a copy; and

(7)

any other person who requests a copy.

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

Filed with the Office of the Secretary of State on July 26, 1999.

TRD-9904489

Charles Cooper

Chairman, Texas MHMR Board

Texas Department of Mental Health and Mental Retardation

Earliest possible date of adoption: September 5, 1999

For further information, please call: (512) 206-4516