1 TAC §351.15
The Health and Human Services Commission (HHSC) adopts new §351.15,
concerning, Coordinated Planning and Delivery of Health and Human Services,
Information Regarding Community-based Services, with changes to the proposed
text as published in the August 20, 1999, issue of the
Texas Register
(24 TexReg 6407).
Initially, HHSC notes that the proposed rule was changed to delete a reference
to the Texas Rehabilitation Commission (TRC) in subsection (c) of the rule.
The reason for this change is that the program associated with TRC has been
transferred to the Texas Department of Human Services.
Comments were received from ADAPT of Texas, the ARC of Texas, the Private
Providers Association of Texas, and the Texas Council of Community Mental
Health and Mental Retardation Centers, Inc. the comments and HHSC's responses
are provided below.
Comment: One commenter recommended that the Texas Commission for the Blind
and the Texas Commission for the Deaf and Hard of Hearing be included among
the agencies subject to §315.15.
Response: HHSC disagrees with this recommendation. Section 531.042, Government
Code, which is the source of proposed §315.15, states in part that a
health and human services agency is required to inform a patient or client
of the agency of community-based services before the patient or client is
placed in a care setting to receive care or services "provided by the agency
or by a person under an agreement with the agency." HHSC interprets this language
to refer only to health and human services agencies that operate or provide
services to patients or clients in a "care setting." Neither the Commission
for the Blind nor the Commission for the Deaf and Hard of Hearing provide
care or services that, as a matter of program policy, involve placement of
patients or clients in a care setting. Therefore, HHSC does not agree that
the requested change is appropriate.
Comment: The same commenter also recommended that the proposed rule be
changed to include generic language that refers to agencies by function -
e.g., "Aging and Disability Services Agency" - rather than by name.
Response: HHSC disagrees with this recommendation. Section 531.042, Government
Code places principal responsibility for informing persons of community-based
care and support options on each "health and human services agency." Section
531.001(4), Government Code defines the phrase "health and human services
agency" for purposes of title 4, subtitle I, of the Government Code, including §531.042.
The phrase "health and human services agency" in the proposed rule must likewise
be governed by the statutory definition. HHSC is not authorized to assign
a different meaning to the phrase in the proposed rule.
Comment: One commenter recommended that the language of subsection (b)
of the proposed rule be changed in several ways. The first recommended change
was that the subsection be made to apply to individuals "applying or receiving
long term services and supports." The language of §531.042 specifically
requires information to be provided to "patients and clients" of a health
and human services agency.
Response: HHSC believes the phrase "patients and clients" can only reasonably
be understood to refer to persons who either have been determined eligible
to receive services from the agency or currently receive services from the
agency. HHSC believes one possible reason for the statutory language was to
avoid the unnecessary expense and effort of distributing information to persons
who are determined to be ineligible for any services. The proposed rule, therefore,
ensures an agency's efforts initially are directed to persons most likely
to benefit from the information. Also, because the proposed rule requires
information to be provided before a care decision is made, HHSC believes that
the practical effect of the rule will be to ensure patients and clients are
informed prior to placement in a care setting, as §531.042 requires.
Finally, the proposed rule does not prevent an agency from sharing information
regarding community-based services or supports to persons upon their initial
application for services from the agency. Accordingly, HHSC believes the recommended
change is not necessary.
Comment: The same commenter recommended that subsection (b) be changed
to require delivery of information regarding community-based services and
supports to individuals who currently receive long-term care services.
Response: HHSC appreciates the intent of this comment and generally supports
its objectives. However, the language of §531.042 authorizes HHSC to
adopt rules regarding the dissemination of information prior to a patient
or client's placement in a care setting. This language arguably does authorize
HHSC to adopt rules to require dissemination of information after placement
in a care setting. As with the previous comment, HHSC believes the language
of the proposed rule is flexible enough to allow an agency to share information
regarding community-based services or supports to clients who have been placed
in a care setting. Therefore, no additional language should be necessary.
Comment: The same commenter recommended that subsection (b) be changed
to encourage agencies to use consumer groups to the maximum extent possible
to assist in getting information to institutionalized individuals.
Response: Although HHSC believes this is a useful suggestion, HHSC does
not agree that the final rule should include this language. First, HHSC believes
the phrase "consumer groups" does not adequately identify which groups should
be considered eligible to assist the agency. Also, to the degree the phrase
is not ambiguous, HHSC believes that a health and human services agency is
best suited to determine whether and under what circumstances such groups
can successfully be called upon to assist in the delivery of information required
by the rule.
Comment: The commenter also recommended requiring agencies to inform patients
and clients within 180 days of the date the rule becomes effective.
Response: HHSC disagrees with this recommendation. This requirement cannot
be applied to the delivery of information to patients and clients who apply
for services later than 180 days following the effective date of the rule.
Since the rule requires each health and human services agency to which the
rule applies to report its activities by November 1 of each year, HHSC believes
each agency is sufficiently motivated to do so in a prompt and reasonable
manner.
Comment: One commenter noted that the proposed rule does not require an
agency to document all of the information required under §533.038(d)
and (e), Health and Safety Code, as added by Senate Bill (SB) 358, 76th Legislature,
and the general appropriations bill, House Bill (HB) 1, 76th Legislature,
1999. The commenter requested how this and other aspects of the proposed rule
comply with the requirements of amended §533.038.
Response: HHSC notes that the proposed rule does not implement §533.038
of the Health and Safety Code. The Texas Department of Mental Health and Mental
Retardation (TDMHMR) is required to comply with the information-sharing requirements
of amended §533.038. HHSC is not authorized to adopt a rule that governs
TDMHMR compliance with its duties under the amended statute.
Comment: One commenter recommended that paragraph (d) of the proposed rule
be changed to require initial reporting within 9 months of the effective date
of the rule.
Response: HHSC disagrees with this request. HHSC believes November 1 represents
a reasonable date by which to report progress under the rule. It also enables
HHSC to obtain data at a regular time and to provide information to the Legislature
that is timely and facilitates the legislative process.
Comment: Several commenters responded to the phrase "without a lengthy
waiting list" in the second sentence of subsection (b) of the proposed rule.
One commenter suggested that the phrase exceeds the requirements of §531.042,
Government Code. The commenter suggested that it is difficult, if not impossible,
to know with certainty whether a program with a waiting list has a vacant
or available service slot.
Comment: A second commenter recommended that language be included to require
an agency to report whether a waiting list exists for each community-based
program and the length of the waiting list.
Comment: A third commenter noted that the phrase "long-term care services
. . . that are currently available within the client's service area without
a lengthy waiting list" in subsection (b) may limit the amount of information
provided to patients and clients. The commenter recommended that the sentence
in which this language appears be modified to delete the phrase and to insert
in its place a requirement that information be provided regarding "all available
long-term care services."
Response: HHSC agrees in part with the first comment. Although §531.042
does not mention waiting lists, HHSC believes that this information is helpful
to an individual who is considering a community-based service or support option.
It is therefore consistent with the objective of the rule to provide patients
and clients with adequate information regarding community-based options. However,
HHSC also recognizes that waiting lists frequently change and that there currently
is no reliable method to ensure the delivery of accurate and timely information
about waiting lists to local service providers and authorities. Accordingly,
the phrase "without a lengthy waiting list" will be stricken from the final
rule. In light of this conclusion, HHSC declines to add language to require
an agency to inform a patient or client of the length of a waiting list at
this time. If a reliable method of delivering such information to local service
authorities is developed in the future, the rule can be amended to accommodate
delivery of such information. HHSC believes that by requiring an agency to
provide information appropriate to a client's needs and that currently are
available in the client's service area, this will ensure delivery of relevant
information and avoid delivery of unnecessary and inappropriate information
to clients.
Comment: One commenter also asked whether the proposed rule was intended
to address all programs currently operated by the Texas Department of Mental
Health and Mental Retardation (TDMHMR) or only the specific programs identified
in proposed §351.15(3). The commenter also noted that Medicaid waiver
programs operated by TDMHMR were not specifically identified in the listing
of TDMHMR programs. To cure this, the commenter suggested the section be rewritten
to apply to an agency that maintains a "single point of access" to services.
Response: HHSC agrees with this comment. The purpose of the proposed rule
is to ensure delivery of timely and appropriate information to persons who
receive long-term care services from a health and human services agency, whether
delivered through a local provider or agency itself. Accordingly, the final
rule is changed to clarify applicability to all long-term care programs of
TDMHMR.
The new rule is adopted under the Texas Government Code, Chapter
531, §531.033, which authorizes the Commissioner of Health and Human
Services to adopt rules necessary to carry out the Health and Human Services
Commission's duties under Chapter 531.
The new rules affect Chapter 531 if the Texas Government Code and Chapter
32 of the Texas Human Resources Code.
§351.15. Information Regarding Community-based Services.
(a)
Applicability. This section applies to the following state
health and human services agencies: Texas Department on Aging (TDoA); Texas
Department of Human Services (DHS); Texas Department of Health (TDH); Texas
Department of Mental Health and Mental Retardation (TDMHMR); Texas Department
of Protective and Regulatory Services (DPRS); Texas Rehabilitation Commission
(TRC).
(b)
Information to be provided to long-term care clients.
A state health and human services agency that delivers long-term care services
must provide each long-term care client information about long-term care services
appropriate to the client's needs that are currently available within the
client's service area. The information must be provided to the client before
a care decision is made. The information must include options available through
other agencies and providers and must be easily understood by the client or
the client's guardian, if one has been appointed. The agency must obtain a
signed statement from the client or the client's guardian that confirms that
the client was informed about community-based care and support options. The
agency must retain a copy of each statement in the client's records.
(c)
Programs affected. The requirements of subsection (b)
of this section apply to the following agencies and programs:
(1)
DHS - Nursing Facility Care; Hospice Program; Swing Bed
Program; Program of All-inclusive Care for the Elderly (PACE Waiver Program);
Adult Foster Care; Client-Managed Attendant Services; Home Delivered Meals;
Day Activity and Health Services; Emergency Response; In-Home Family Support
Program; Primary Home Care; Residential Care; Respite Care; Special Services
to Persons with Disabilities; Special Services to Persons with Disabilities
24-Hour Attendant Care, Community Based Alternatives Waiver Program; Community
Living Assistance and Support Services Waiver Program; TRC-Deaf-Blind Multi
Handicapped Waiver Program; Personal Attendant Services.
(2)
TDH - Texas Health Steps; Texas Health Steps-Comprehensive
Care Program (CCP); Chronically III and Disabled Children's Services Program
(CIDC); TDH-administered Medicaid; Medically Dependent Children's Program
(MDCP); Respite Grant Programs; Acute Hospital (before discharge);
(3)
TDMHMR - all long-term care services.
(d)
Reporting. By November 1 of each year, agencies that operate
the programs listed in subsection (c) of this section must report to the Health
and Human Services Commission the number of clients served in community-based
settings and the number of clients served in residential-care settings in
the programs during the previous fiscal year. By November 1 of each year,
DPRS must report to the Health and Human Services Commission the number of
Adult Protective Services clients placed in community-based and nursing home
services and the number of Child Protective Services children by type of placement.
By November 1 of each year, TDOA must report to the Health and Human Services
Commission the number of clients served in the Options for Independent Living
program.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on January 24, 2000.
TRD-200000452
Marina S. Henderson
Executive Deputy Commissioner
Health and Human Services Commission
Effective date: February 13 ,2000
Proposal publication date: August 20, 1999
For further information, please call: (512) 424-6576