Part I. Texas Department of Human Services

Chapter 72. Memoranda of Understanding with Other State Agencies

Subchapter A. Memoranda of Understanding for Long-term Care

40 TAC §72.103

The Texas Department of Human Services (DHS) proposes new §72.103, concerning personal care facilities, in its Memoranda of Understanding with Other State Agencies chapter. The purpose of the new section is to set forth a memorandum of understanding (MOU) among DHS, the Texas Department of Protective and Regulatory Services (TDPRS), and the Office of the Attorney General (OAG) that is required under the Health and Safety Code, §247.046 and §247.062. This MOU sets forth the agreement and the process whereby the above noted agencies will cooperate in correcting violations or deficiencies in personal care facilities.

Eric M. Bost, commissioner, has determined that for the first five-year period the proposed section will be in effect there will be no fiscal implications for state or local governments as a result of enforcing or administering the section.

Mr. Bost also has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be that uncertified facilities will be removed from business and certified facilities will be required to adhere to standards of the agency. There will be no effect on small businesses as a result of enforcing or administering the section. There is no anticipated economic cost to persons who are required to comply with the proposed section.

Questions about the content of this proposal may be directed to Susan Syler at (512) 438-3111 in DHS's Long-term Care Section. Written comments on the proposal may be submitted to Supervisor, Rules and Handbooks Unit-205, Texas Department of Human Services E-205, P.O. Box 149030, Austin, Texas 78714-9030, within 30 days of publication in the Texas Register .

The new section is proposed under the Human Resources Code, Title 2, Chapter 22, which authorizes the department to administer public assistance programs.

The new section implements the Human Resources Code, §§22.001-22.030 and §§32.001-32.042.

§72.103. Personal Care Facilities.

(a)

Basis. The Texas Department of Human Services, hereinafter referred to as DHS, the Texas Office of the Attorney General, hereinafter referred to as OAG, and the Texas Department of Protective and Regulatory Services, hereinafter referred to as TDPRS are required under the provisions of Health and Safety Code section 247.046 and §247.062 to enter into a memorandum of understanding (MOU) regarding their respective responsibilities, procedures, enforcement needs, and plans for correcting violations or deficiencies in personal care facilities. This MOU implements those requirements.

(b)

DHS responsibilities.

(1)

DHS accepts applications and issues licenses in accordance with the requirements of Chapter 247, and DHS rules and standards adopted to implement the law.

(2)

If DHS finds a licensed personal care facility operating in violation of minimum standards or licensing requirements and the violation creates an immediate threat to the health and safety of a resident in the facility, DHS may suspend the license or order the immediate closing of all or part of the facility. DHS shall retain primary responsibility for assisting families in finding new placements for individuals displaced when facilities licensed by or subject to licensure by DHS are closed.

(3)

DHS shall investigate each allegation of abuse, exploitation, or neglect of a resident of a personal care facility in accordance with Chapter 247 of the Health and Safety Code, Chapter 48 of the Human Resources Code, and DHS rules. If the investigation reveals abuse, exploitation, or neglect, DHS shall implement enforcement measures, including closing the facility, revoking the facility's license, relocating residents, and making referrals to law enforcement agencies (including the OAG) as appropriate.

(4)

DHS may refer a facility to the OAG or a local prosecuting attorney for the purpose of petitioning a district court for a temporary restraining order to restrain a continuing violation of standards or licensing requirements for personal care facilities. If DHS finds that the violation creates an immediate threat to the health and safety of the personal care facility residents, the referral is made to the OAG along with all affidavits necessary to prosecute the case. If the violation does not create an immediate threat to the health and safety of personal care facility residents, the referral is to a local prosecuting attorney. DHS, through the OAG or a local prosecuting attorney, may petition a district court for a restraining order to inspect a facility that is operating without a license when admission to the facility cannot be obtained. In these inspection situations, DHS shall first contact the local prosecuting attorney for assistance.

(5)

DHS shall cooperate with the OAG and/or the local prosecuting attorney in the preparation and prosecution of injunctive actions against personal care facilities against which DHS has requested legal proceedings.

(6)

DHS may refer persons who do not possess a license, or personal care facilities that violate the Personal Care Facility Licensing Act (Chapter 247 of the Health and Safety Code) or a rule adopted under that act, whose violation threatens the health and safety of a resident of a personal care facility, to the OAG for the purpose of petitioning a district court for civil penalties under section 247.045 of the Health and Safety Code. DHS will refer civil penalty cases to the local district attorney, county attorney, or city attorney if the OAG does not take action within 30 days of the referral. DHS shall cooperate with the OAG and the local prosecuting attorneys in the preparation for and prosecution of civil penalty actions.

(c)

TDPRS responsibilities. TDPRS will assist DHS, upon request, in finding suitable placement for incompetent individuals who have no family willing to assist and who must be relocated due to the closing of a personal care facility licensed or subject to licensure by DHS.

(d)

OAG responsibilities.

(1)

The OAG will work in close cooperation with DHS throughout any legal proceeding requested by DHS under Chapter 247 of the Health and Safety Code.

(2)

The OAG will keep DHS informed of the status of all cases referred to the OAG under Chapter 247 of the Health and Safety Code upon the request of DHS.

(3)

The OAG will represent DHS to the full extent of the law in Chapter 247 actions.

(4)

When the OAG chooses not to prosecute a Chapter 247 case referred by DHS, it will immediately inform DHS so that alternative action can be taken.

(e)

Complaint investigations and opportunities for corrective action.

(1)

When a complaint is received about a licensed or a unlicensed personal care facility, DHS will do a complaint investigation of the facility. If the owner of an unlicensed facility denies DHS investigators access to a facility, DHS may, through the OAG or a local prosecutor's office, petition a district court for a temporary restraining order to inspect the facility.

(2)

If the investigation indicates that there is a violation of minimum standards and the violation creates an immediate threat to the health and safety of a facility resident, DHS will suspend the license and order closing of the facility for a ten day period.

(3)

If the investigation indicates that there is a violation of minimum standards or licensing requirements and the violation is a threat to resident health and safety, DHS immediately makes a referral to the Attorney General's office to enjoin the facility's operation, enjoin the facility from violating standards or licensing requirements, and/or for assessment of civil monetary penalties.

(4)

If the OAG does not take action on a civil penalty referral within 30 days of the referral, DHS will refer the case to the local prosecuting attorney.

(5)

If the investigation indicates a violation of minimum standards or licensing requirements but the violation is not a threat to resident health and safety, DHS may notify the owner that he is in violation and make a referral to the local prosecuting attorney or the OAG only after the facility owner is given an opportunity to take appropriate action to come into compliance within a reasonable time.

(6)

If the local prosecuting attorney refuses to prosecute a case, DHS may seek the assistance of the OAG.

(7)

DHS may deny, suspend, or revoke the license of a licensed facility for violating the Personal Care Facility Licensing Act or rules adopted under that act.

(8)

If further investigation or monitoring of a facility that has previously indicated that it will come into compliance, indicates that violations have continued, DHS may immediately seek injunctive or other appropriate relief in coordination and cooperation with the OAG or the local prosecuting attorney.

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 June 2, 1999.

TRD-9903253

Paul Leche

General Counsel, Legal Services

Texas Department of Human Services

Earliest possible date of adoption: July 18, 1999

For further information, please call: (512) 438-3765

Chapter 841. Workforce Investment Act

Subchapter C. Training Provider Certification

40 TAC §§841.43, 841.44, 841.46

The Texas Workforce Commission (Commission) proposes new §§841.43, 841.44, and 841.46, relating to the implementation of the Workforce Investment Act.

The purpose of §841.43 is to address the Application for Subsequent Eligibility Determination. Section 841.44 concerns the Determination of Subsequent Eligibility. Section 841.46 addresses the Verifiable Program-Specific Performance Information.

These sections were originally published in the April 16, 1999, issue of the Texas Register (24 TexReg 3054). As the Commission has revised these sections, the Commission has re-proposed these sections for an additional 30-day comment period.

Randy Townsend, Chief Financial Officer, has determined that for the first five years the sections are in effect, the following statements will apply:

there are no additional estimated costs to the state and to local governments expected as a result of enforcing or administering the rules;

there are no estimated reductions in costs to the state or to local governments expected as a result of enforcing or administering the rules;

there are no estimated losses or increases in revenue to the state or to local governments as a result of enforcing and administering the rule;

there are no foreseeable implications relating to costs or revenues to the state or to local governments as a result of enforcing or administering the amendments; and

there are no anticipated costs to persons who are required to comply with the rule as proposed.

Randy Townsend, Chief Financial Officer, has determined that there is no anticipated adverse impact on small businesses as a result of enforcing or administering these rules.

Jean Mitchell, Director of Workforce Development, has determined that the public benefit anticipated as a result of the sections as proposed will be to clarify the subsequent eligibility of training providers, and to clarify the verifiable program-specific performance information.

Mark Hughes, Director of Labor Market Information, has determined that there is no significant negative impact upon employment conditions in this state as a result of these proposed sections.

Comments on the proposed sections may be submitted to Barbara Cigainero, Workforce Development Division, Texas Workforce Commission, 101 East 15th Street, Room 130BT, Austin, Texas 78778; Fax Number 512-463-3424; or E-mail to barbara.cigainero@twc.state.tx.us.

Comments must be received by the Commission no later than 30 days from the date this proposal is published in the Texas Register .

The new sections are proposed under Texas Labor Code §301.061 which provides the Texas Workforce Commission with the authority to adopt, amend, or repeal such rules as it deems necessary for the effective administration of Texas Workforce Commission programs.

The proposal affects the Texas Labor Code, Title 4.

§841.43.Application for Subsequent Eligibility Determination.

(a)

All training services providers, including training providers who were determined to be eligible under §841.38 and §841.39, shall annually, from date of certification, establish continuing eligibility to receive funds from WIA to provide training services. The LWDB may request that the state make a certification effective on or after a requested date subject to the state's 30 day review period.

(b)

Each training services provider shall provide verifiable program-specific performance information as required, and in a format and on a schedule determined by the Commission.

(c)

The Commission and the LWDB may accept program-specific performance information consistent with the requirements for eligibility under Title IV of the Higher Education Act of 1965 from the provider for purposes of enabling the provider to fulfill the applicable requirements of this section if the information is substantially similar to the information otherwise required.

§841.44.Determination of Subsequent Eligibility.

(a)

Each LWDB shall annually establish minimum requirements for subsequent eligibility. In determining subsequent eligibility, LWDBs shall consider the following:

(1)

the specific economic, geographic, and demographic factors in the local areas in which providers seeking eligibility are located;

(2)

the characteristics of the populations served by providers seeking eligibility, including the demonstrated difficulties in serving such populations, where applicable;

(3)

current and projected occupational demand within the local area;

(4)

the performance of a provider of a program(s) of training services, including the extent to which the annual standards of performance established by the LWDB have been achieved;

(5)

the program cost of training services; and

(6)

the involvement of employers in the establishment of skill requirements for the training program; and

(7)

the feedback of employers who employ recent individuals who have completed WIA-funded training to verify the training provided produced the expected skills.

(b)

No later than July 1, 2000, each LWDB shall ensure that training providers, in developing programs of training services and establishing performance criteria for successful course completion, use in descending order:

(1)

skill standards recognized or conditionally recognized by the Texas Skill Standards Board when available; or

(2)

industry-defined or recognized skill standards; or

(3)

skill requirements determined by employers.

(c)

LWDBs may require enhancements to programs or courses to meet local industry needs.

§841.46.Verifiable Program-Specific Performance Information.

(a)

Performance information submitted for a training services program, as a part of the subsequent eligibility determination process shall be verifiable.

(b)

Participating training providers shall provide to the Commission the participant and employer information determined by the Commission to be necessary to utilize unemployment insurance wage records and employer-based, follow-up surveys to obtain performance information. The training providers shall submit the information in a form and format determined by the Commission.

(c)

Subject to approval by the Commission, alternate procedures may be used to collect and verify supplemental performance information in addition to those described in §841.46(b). Approval or use of an alternate procedure shall not release the training provider from the obligation to provide the information required by §841.46(b). Submission of supplemental performance data obtained through use of an alternate procedure must be in accordance with formats determined by the Commission.

(d)

An independent audit of any alternate methodology used shall be conducted on an annual basis by a certified public accountant for programs of training services in which 100 or more WIA-supported students are served within a twelve-month period. Programs that serve less than 100 WIA-supported students in a twelve-month period shall provide for an independent audit of the performance data collection methodology every two years. A copy of the report shall be made available to the LWDB and to the Commission within 30 days of the completion of the report.

(e)

Verifiable program performance information shall be submitted on a calendar quarterly basis in a format and on a schedule established by the Commission.

(f)

The Commission may conduct performance verification throughout the year and may require training providers to submit additional information to resolve performance reporting anomalies or irregularities.

(g)

Providers of training services shall retain participant program records for a period of three years from the date the participant completes the program.

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 June 2, 1999.

TRD-9903261

J. Randel (Jerry) Hill

General Counsel

Texas Workforce Commission

Earliest possible date of adoption: July 18, 1999

For further information, please call: (512) 463-8812