The Texas Department of Human Services (DHS) adopts amendments to §48.2102 and §48.6002; and new §48.2111, §48.2113, §48.2115, §48.2117, §48.2119, §48.2121, §48.6098, §48.6100, §48.6102, §48.6104, §48.6106, and §48.6108. New §48.2113 is adopted with a change to the proposed text published in the December 18, 1998, issue of the Texas Register (23 TexReg 12891). The amendments to §48.2102 and §48.6002; and new §48.2111, §48.2115, §48.2117, §48.2119, §48.2121, §48.6098, §48.6100, §48.6102, §48.6104, §48.6106, and §48.6108 are adopted without changes to the proposed text and will not be republished.

The need for adoption of these rules arises from the need to define denial and termination of services to participants of the Community Living Assistance and Support Services (CLASS) and Community Based Alternatives (CBA) programs, and to define advance notice and suspension of services. There was need to further clarify existing rules to support the policies and procedures for denial and suspension of services in order to avoid unauthorized suspension of services by providers and inadequate notice of consumers' rights and opportunities for due process.

The purpose of these rules is to provide consumer protection, prevent unauthorized suspension of services by provider agencies, and assure the right of due process in circumstances which may result in suspension or termination of services to CLASS and CBA participants, while recognizing the need to protect providers from threats to their health and safety. These rules apply to both children and adults and will not be used to terminate services to participants for uncontrollable behavior due to the individual's disability. These policies provide guidelines for providers to use appropriate interventions and opportunities for problem/conflict resolution through mediation and other problem solving techniques before initiating actions to suspend and/or terminate services to participants, unless reckless behavior which results in imminent danger to the health and safety of the service provider is exhibited by the participant or someone in the participant's place of residence.

The responses to public comments are incorporated into the factual basis for these rules.

In February of 1998, DHS published proposed rules in the Texas Register to add eligibility rules to the CLASS and CBA programs, and received substantive negative comments. In response, DHS withdrew the rules, and formed a workgroup composed of disability advocacy groups, consumers, providers, and DHS staff to revise the proposed rules. Staff from the Office of General Counsel, Health and Human Services Commission (HHSC), and Adult Protective Services provided technical and legal assistance. The workgroup reached a consensus through a collaborative and cooperative process and the adopted rules address the public comments received. They are consistent with the uniform fair hearing rules adopted by the HHSC.

The amendments and new sections are needed to prevent unauthorized suspension of services by providers, assure consumer protection and the right of due process, and for provision of advance notice to participants in circumstances which may result in denial or suspension of their CLASS or CBA services.

Section 48.2102 regarding CLASS and §48.6002 regarding CBA are amended to include needed definitions for advance notice and suspension of services.

Section 48.2111 regarding CLASS and §48.6098 regarding CBA are adopted to provide rules pertaining to circumstances requiring denial of services with advance notice.

Section 48.2113 regarding CLASS and §48.6100 regarding CBA are adopted to provide rules pertaining to circumstances requiring denial of services and Medicaid eligibility without advance notice.

Section 48.2115 regarding CLASS and §48.6102 regarding CBA are adopted to provide rules pertaining to circumstances which may result in denial and requiring advance notice.

Section 48.2117 regarding CLASS and §41.6104 regarding CBA are adopted to provide rules pertaining to crisis intervention requiring immediate suspension of services without advance notice.

Section 48.2119 regarding CLASS and §48.6106 regarding CBA are adopted to provide rules pertaining to immediate suspension of services with advance notice.

Section 48.2121 regarding CLASS and §48.6108 regarding CBA are adopted to provide rules pertaining to provider sanctions due to unauthorized suspension of services.

The majority of comments, received from Advocacy, Inc., The Arc of Texas, and United Cerebral Palsy objected to the language of the rules, which was derived from federal regulations and is consistent with the uniform fair hearing rules, or to the organization of the rules, which also was designed to be consistent with federal regulations and uniform fair hearing rules. Detailed comments and responses are as follows:

Advocacy, Inc.

Comment concerning §48.2113(a)(2)(B): "the operating agency or its designee receives a clear written statement signed by the individual what gives information that requires termination or reduction in services and indicates that he or she understands that this must be the result of supplying that information." This should be moved to the section that addresses denial of services with advanced notice to ensure due process.

Response: The department disagrees and recommends adoption as proposed. The language in the proposed rule is consistent with federal regulations found at 42 CFR §431.213(b)(1) and with the uniform fair hearing rules developed by the Health and Human Services Commission (HHSC).

Comment concerning §48.2113(a)(5): "a change in the level of medical care is prescribed by the individual's physician." This should be deleted. A change in the level of care is appropriately addressed in §48.2111(a)(4); the estimated costs of Community Living and Support Services (CLASS) and the cost ceiling are addressed in §48.2111(a)(5); and expectation that medical and nursing needs cannot be met adequately in the participant's residence is addressed in §48.2111(a)(6). The workgroup did not discuss or agree to the proposed new language. A change in eligibility due to a change in medical care and consequently the level of care, medical or nursing needs, and costs should require notice and the right to appeal.

Response: The department disagrees and recommends adoption as proposed. This change was made by HHSC to be consistent with federal regulations found at 42 CFR §431.213(f) and the uniform fair hearing rules for all Medicaid agencies. The professional medical judgment regarding treatment by the patient's own physician is not an appealable item.

Comment concerning §48.2113(a)(6): "the notice involved an adverse determination made with regard to the preadmission screening requirements." If there is a problem with preadmission screening for a person who is already receiving services, that person should have the right to appeal and to have the services continued during the appeal. Move this to the section requiring advanced notice.

Response: The department disagrees and recommends adoption as proposed. The proposed rule is consistent with federal regulations found at 42 CFR §431.213(g) and the uniform fair hearing rules for all Medicaid agencies as developed by HHSC. The department agrees with HHSC that CLASS/Community Based Alternatives (CBA) rules should be uniform with other Medicaid agencies.

Comment concerning §48.2117(e): "with prior authorization by DHS the case management agency (CMA) may continue providing services to assist in the resolution of the crisis. This service will be reimbursed as an administrative expense." The workgroup advocated for crisis intervention, including but not limited to case management, to be available to participants i.e., psychological counseling which could help remedy the crisis. Advocacy, Inc. supports the workgroup's recommendation and requests this language be modified to include other services as deemed appropriate by case management.

Response: The department disagrees and recommends adoption as proposed. If the participant's behavior warrants immediate suspension of services because of imminent threats to the health and safety of providers, outpatient services by a psychologist are not likely to alleviate the problem. Participants often refuse to alleviate the problem. No federal matching funds are available for waiver services during the suspension period. Case management services are reimbursable as an administrative expense. Case managers can facilitate other placements or coordinate services without direct client contact.

The Arc of Texas

Comment concerning §48.2113(a)(2)(A) and (B): re: the clear written statement signed by an individual indicating that he or she no longer wishes service; or supplies information that requires termination or reduction in services. We recommend that you add the following language to this section: "The CMA will attempt to confirm, either by phone or in person, that the individual submitting the written notice fully understands the consequences of that action." In addition, we also recommend that anyone falling under this section be given an opportunity to appeal such a decision. Granted, this would require sending a notice of the right to appeal; however, we feel that it is warranted in this case.

Response: The department disagrees and recommends adoption as proposed. The language in §48.2113(a)(2)(A) and (B) is consistent with federal regulations found at 42 CFR §431.213(b)(1) and (2) and with the uniform fair hearing rules published by HHSC. DHS does not have the ability to determine the competency of the individual at the time they sign a statement. This would require a professional judgment by a qualified medical professional.

United Cerebral Palsy of Texas, Inc.

Comment concerning §48.2111(a)(2): Regarding the situation of a CLASS participant being denied services after residing in an institutional setting for longer than 120 days, we again recommend that the department consider a review of the individual's circumstances shortly before 90 days is reached, with recommendations to be made by the case management and direct service provider to the individual at the 90-day point. Efforts for transitioning a participant off the CLASS or CBA program need to be instituted before time runs out. We recognize that an institutional placement for illness, rehabilitation or other reasons may present a hardship to the CLASS/CBA providers who will not be able to provide or bill for services during this period. However, we also recognize how difficult it is for individuals to re-enter community life after an extended hospitalization or stay in a long-term care facility. If the support system that CLASS/CBA brings to an individual is completely pulled, then little or no community-based supports will be available for a re-entry into community life. CLASS can and should serve as the window of opportunity and base of support for the individual leaving an institutional setting to go home.

It is a positive step to allow DHS to retain the authority to extend time in extraordinary circumstances.

We also agree that there should be a definitive time period for holding the waiver "slot" open, and although our original recommendation was that the time limit should extend to at least a full six months, we do agree that 120 days is a reasonable compromise.

Response: The department disagrees and recommends adoption as proposed. However, a procedure will be added to require case managers to evaluate the need for the individual to remain in the institutional setting or return to the community at the 90-day time frame, while retaining the slot for a period of 120 days.

Comment concerning §48.2111(a)(5) and §48.6098(a)(5): We have three main comments about this section. First, further parameters are needed. There have been hours of discussion about the role of case management and the responsibility of direct service agencies to explore and access flexible and creative resources, funding, and generic services that either exist or can be developed to enable a person with significant support needs to remain in the community and in their own home. The fundamental purpose of CLASS is to provide individualized support services to persons who have a range of support needs, including intensive functional and health care needs, in the community. This is also true of the CBA program. Persons cannot be "dismissed" easily on the basis of the intensity of their support needs.

The second comment here is that we continue to recommend that the costs of the CLASS waiver be calculated on an aggregate basis. As such, the small number of individuals with extremely intensive (expansive) support needs would not run the constant risk of exceeding the CLASS cost ceiling. Instead, all participants' costs would be reviewed in the aggregate to determine that the cost of serving all CLASS participants does not exceed the cost of providing institutional services to all CLASS participants. We believe that the aggregate approach would ultimately serve more individuals per year.

The third comment relates to allowing the participant and/or the immediate family to assume some of the risk of living in the community. Supporting individuals with significant support needs in the community is extremely challenging and for the most part, CLASS, CBA, and other waiver providers are learning step by step how to provide those supports and enable meaningful lives in the community. There may be rare circumstances where the current CLASS service system does not have the capacity to support that individual or is unsure about how to achieve those supports. Instead of pronouncing an individual not appropriate or not eligible, the case manager and direct service agency providers should be undertaking honest and ongoing deliberations with the individual about the providers' limitations, capacities, and abilities. The individual should know what the probable risks are and be allowed to decide whether to assume those risks as a part of receiving the CLASS services. DHS should support the CLASS providers with active guidance, peer reviews of the service plans and agreements reached, and independent assessments.

Response: The department disagrees and recommends adoption as proposed. Denial of eligibility to individuals under these circumstances occurs only as a last resort after all other resources have been utilized. Federal regulations for Medicaid waivers require states to assure the health and welfare of all participants. These rules do not address any changes to the individual client cost ceilings for the CBA or CLASS programs.

Comment concerning §48.2111(a)(6) and §48.6098(a)(6): We continue to strenuously object to the inclusion of this section. To allow two direct service agency (DSA)/home and community support services (HCSS) providers to refuse to serve the participant as a basis for denial of services violates the purpose of the CLASS and CBA programs and appears to circumvent any due process procedures. In recent years, we have heard providers wonder aloud if certain participants are the "type of individuals" the CLASS program is intended to serve. From the organization which led the development of the CLASS waiver, we want to again emphasize that the fundamental purpose of CLASS is to provide individualized support services to persons who have a range of support needs, including intensive functional and health care needs, in the community. Persons cannot be "dismissed" easily on the basis of the intensity of their support needs.

Response: The department disagrees and recommends adoption as proposed. There are some participants whose needs can no longer be met in the community within the individual cost ceiling. Licensure of home and community support services agencies requires providers to accept only those clients where they have a reasonable expectation that they can adequately meet the client's medical, social, and nursing needs in the client's residence. The department cannot mandate that providers serve clients whose needs they cannot meet. Federal waiver regulations require states to assure the health and welfare of participants.

Comment concerning §48.2111(a)(7) and §48.6098(a)(7): We are concerned about the need for this proposed rule. It would seem obvious that if an individual or legal guardian did not sign the individual service plan (ISP), services could not begin or continue. We hope that in situations where there is a disagreement about the ISP, that the case manager would take an active role in determining why a participant or legal guardian is withholding his signature and would seek appropriate mediation to reach resolution. If it can be documented that mediation was attempted or tried and a signature still cannot be obtained, a certain number of days should be allowed for notice before services are terminated. "Refusal to comply" with one's ISP probably indicates disagreement with the plan or a need for supports in carrying out the ISP. Denial of CLASS services seems an inappropriate response to non-compliance. We would like to see active involvement from the CLASS program staff at DHS in cases where participants "refuse to comply," before any termination is considered.

Response: The department disagrees and recommends adoption as proposed. Waiver services cannot be provided without an agreed upon plan of care. If the individual appeals the termination on a timely basis, services continue with additional attempts at resolution, until the appeal officer makes a decision. After the decision is rendered, the participant has another opportunity to sign before services are discontinued. Services will not be immediately terminated; the participant will be informed of the consequences of his decision before services are terminated.

Comment concerning §48.2111(a), §48.2115(a)(1), §48.2117(a), §48.6098(a)(10), §48.6102(a)(1)(2), and §48.6104(a): We concur that if a participant threatens the health or safety of the provider or its representatives, or engages in sexual harassment, this should be considered criteria for service termination, if it is determined that the participant's action is not related to his disability, or it is related to his disability and the threatening or harassing action(s) do not improve with appropriate interventions.

We have concerns about the actions of others causing denial of services for a CLASS or CBA participant. Intervention by the CLASS/CBA case manager should be a minimum standard for mediating these circumstances. Issues involving children receiving CLASS services may require other responses before any denial would be allowed.

These proposed rules are still too vague and jeopardize a participant's due process.

§48.2115(a)(1) and (2) As previously noted, a rule describing the behavior or actions of others as a reason for suspension or termination of CLASS eligibility and/or services is a major concern for us. The rule is too vague and may violate due process protections.

Response: The department disagrees and recommends adoption as proposed. There must be a substantial and demonstrated pattern of verbal abuse and harassment or discrimination before action is taken to deny services. If the client files a timely appeal, services continue until the hearing officer decides whether individual circumstances warrant termination of benefits.

Comment concerning §48.2111(e), §48.2115(c), §48.6098(d), and §48.6102(c): It appears that the participant only has ten days to appeal the notification of denial. This 10-day requirement to respond may not offer a fair opportunity for response. We would suggest at least 30 days after the receipt of the "return-receipt requested certified letter." Termination of CLASS services has serious consequences for most individuals, and therefore all prudent steps should be taken to assure that the individual receives fair and proper notice. We therefore assume that no termination would be initiated or occur due to the failure of the case manager to process Level of Care renewals or other eligibility requirements in a timely fashion.

Response: The 10-day time frame is a federal requirement for continuing services during the appeal process. Clients have 90 days to appeal the decision. Services will not be terminated if the case manager fails to redetermine eligibility on a timely basis.

DHS is adopting §48.2113(b) with a minor change. DHS is changing the word "verbally" to "orally."

Subchapter C. Medicaid Waiver Program for Persons with Related Conditions

Subchapter T. Administrative Fraud Disqualification Hearings