Part 2.
TEXAS DEPARTMENT OF MENTAL HEALTH AND MENTAL RETARDATION
Chapter 409.
MEDICAID PROGRAMS
Subchapter D. HOME AND COMMUNITY-BASED SERVICES (HCS)
25 TAC §§409.100 - 409.106, 409.108 - 409.117, 409.119, 409.120
The Texas Department of Mental Health and Mental Retardation
(department) adopts the repeal to §§409.100-409.106, 409.108-409.117,
409.119, and 409.120 of Chapter 409, Subchapter D, concerning home and community-based
services (HCS) without changes to the text as proposed in the October, 1,
1999, issue of the
Texas Register
(24 TexReg
8461).
The repeal is part of a comprehensive reorganization of chapters and subchapters
within the department's portion of the Texas Administrative Code in conjunction
with the sunset review of agency rules required by Texas Government Code, §2001.039
(as added by Senate Bill 178, Section 1.11, 76th Legislature). Key provisions
of the subchapter are incorporated into new Chapter 419, Subchapter D, concerning
home and community-based services (HCS) program, which is adopted contemporaneously
in this issue of the
Texas Register
.
No comments were received concerning the repeal as proposed.
The repeal is adopted under the Texas Health and Safety Code, §532.015(a),
which provides the Texas Board of Mental Health and Mental Retardation 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 delegated to the department the authority to operate the HCS 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 February 7, 2000.
TRD-200000946
Charles Cooper
Chair, Texas MHMR Board
Texas Department of Mental Health and Mental Retardation
Effective date: March 1, 2000
Proposal publication date: October 1, 1999
For further information, please call: (512) 206-5232
25 TAC §§409.151 - 409.163, 409.165 - 409.173
The Texas Department of Mental Health and Mental Retardation
(department) adopts the repeal to §§409.151-409.163, 409.165-409.173
of Chapter 409, Subchapter E, concerning home and community-based waiver services
- OBRA (HCS-O) without changes to the text as proposed in the October 1, 1999,
issue of the
Texas Register
(24 TexReg 8462).
The repeal is part of a comprehensive reorganization of chapters and subchapters
within the department's portion of the Texas Administrative Code in conjunction
with the sunset review of agency rules required by Texas Government Code, §2001.039.
Many provisions of the subchapter are incorporated into new Chapter 419, Subchapter
P, concerning home and community-based services-OBRA (HCS-O) program, which
is adopted contemporaneously in this issue of the
Texas Register
.
No comments were received concerning the proposed repeal.
The repeal is adopted under the Texas Health and Safety Code, §532.015(a),
which provides the Texas Board of Mental Health and Mental Retardation 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 delegated to the department the authority to operate the HCS-O 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 February 7, 2000.
TRD-200000943
Charles Cooper
Chair, Texas MHMR Board
Texas Department of Mental Health and Mental Retardation
Effective date: March 1, 2000
Proposal publication date: October 1, 1999
For further information, please call: (512) 206-5232
25 TAC §§409.501, 409.503, 409.505, 409.507, 409.509, 409.511, 409.519, 409.523, 409.525, 409.527, 409.530, 409.531, 409.541, 409.542
The Texas Department of Mental Health and Mental Retardation
(department) adopts amendments to §§409.503, 409.511, 409.523, 409.525,
409.531, and 409.541 and new §§409.507, 409.519, 409.530, and 409.542
of Chapter 409, Subchapter L, concerning the mental retardation local authority
(MRLA) program, with changes to the text as published in the October 1, 1999,
issue of the
Texas Register
(24 TexReg 8463).
Amendments to §§409.501, 409.505, 409.509, and 409.527, are adopted
without changes.
The repeals of existing §§409.507, 409.519, and 409.521 are adopted
contemporaneously in this issue of the
Texas Register
.
Included in the new subchapter are provisions that are responsive to the
76th Legislature's direction to reduce the average cost of the department's
home and community-based waiver program services, which includes the MRLA
program, during the current biennium (Appropriations Act, Article II, Texas
Department of Mental Health and Mental Retardation, Rider 7, page II-73).
The department's appropriation included funding for those individuals currently
receiving waiver program services, with the requirement that the average monthly
expenditure per individual be reduced to $3,846 from the FY 1999 figure of
$4,000-$4,206. The legislature further directed that in order for the department
to increase the number of individuals receiving MRLA program services, the
average monthly expenditure per individual must be reduced to $3,706 by the
end of FY 2000 and $3,511 by the end of FY 2001.
In the spring and summer of 1998, the department developed its legislative
appropriation request for the 2000-2001 biennium. An analysis by department
staff of cost trends in the waiver programs projected a budget deficit based
on the number of individuals expected to be enrolled. The Texas MHMR Board
decided to request additional funding to cover the anticipated increased cost,
and approved a plan to begin to reduce the waiver program waiting list. To
obtain input for the development of a plan to achieve cost savings in the
waiver programs and to assure an appropriate level of services for individuals,
the commissioner charged a workgroup with studying the utilization of waiver
programs and Intermediate Care Facilities for Persons with Mental Retardation
(ICF/MR) resources and making recommendations regarding the future of these
Medicaid programs. The workgroup was composed of consumers, family members,
advocates, providers, and staff from local mental retardation authorities
(MRAs) and presented its final report to the board in March 1999.
The department's plan for improving the cost effectiveness of the waiver
and ICF/MR programs was discussed with legislative representatives during
the 76th legislative session. Many of the questions asked during budget hearings
involved the high cost of three-person waiver program group homes compared
to small ICF/MR group homes. After the appropriation was known the department
immediately began to develop proposed changes that would implement the recommendations
from the workgroup and allow the department to continue to provide services
within the appropriated funds. The changes proposed in these amendments and
new sections have been carefully developed to safeguard the waiver programs
for those individuals currently receiving services and those who are waiting
for services. The department's vision of a system of community-based services
and supports that is affordable, flexible, and consumer-driven is reflected
in the amendments and new sections.
The amendments and new sections describe a fundamental change in the provision
of residential support in the MRLA program. Under the current rules, no more
than three individuals receiving MRLA residential support services may live
in a residence at any one time. The proposal permits up to four individuals
receiving MRLA supervised living or residential support services to live in
a single residence if at least one individual requires supervision and assistance
from a service provider who is present and awake when that individual is in
the residence -- including during normal sleeping hours -- to assure the individual's
health and safety. The proposal redefines the residential support component
to specify that service providers must be present and awake in a residence
at all times an individual is present in the residence. A new service component
-- supervised living -- is defined to include residential assistance provided
to individuals who do not require supervision or assistance from staff who
are awake during normal sleeping hours.
The MRLA Program Principles for Program Providers in §409.531 incorporate
new provisions relating to program provider operations, including requirements
to assure direct service delivery is supervised and managed by an individual
with previous experience in planning and delivering services to the program
population, requirements for residential settings serving four persons, and
requirements related to alleged abuse, neglect, and exploitation. The MRLA
Program Principles for Authorities in §409.541 include new provisions
that update minimum qualifications for service coordinators and describe new
responsibilities for mental retardation authorities for the review of residences
in which four individuals live and receive services. In addition, the sections
now include provider payment procedures and limitations currently contained
in the program billing guidelines, documentation requirements for billing
for minor home modifications, new procedures related to disputed enrollment
effective dates, and requirements for the MRA's reassessment of individuals'
level-of-need assignments.
A number of revisions have been made to the text as proposed. Revisions
to §409.503(b)(3)(C) require that supervised living providers are available
to assist individuals as needed during non-sleeping hours as well as being
present in the residence and able to respond during normal sleeping hours.
A revision to §409.503(b)(5) specifies that the maximum reimbursement
for supported employment is 150 units per year rather than $3,000 per year.
The word "by" is added before "the MRA" in §410.507(f). Revisions to §409.511(b)
clarify that documentation supporting a recommended level of need or individual
plan of care is submitted by the MRA in accordance with the guidelines established
for MRAs. Section 409.519(b) is revised to specify that the Texas Department
of Human Services determines if an individual is required to pay a co-payment
for MRLA program services. In §409.523(3)(D), a typographical error in
the proposal is corrected with the substitution of the singular possessive
"individual's" for "individual."
Language is added in §409.525(a) specifying that the MRA must assist
the LAR or applicant when program services are desired and that a written
request for program services must be submitted. The subsection is further
revised to require the MRA to inform applicants or their LARs that, when choosing
between ICF/MR services and MRLA services, the applicant or LAR has a choice
of ICF/MR services in a state school or community-based setting as well as
other services. Language is also included stating that, as a service planning
team member, the LAR acts on behalf of the applicant. Examples of individual
characteristics which may support an individual's need for the residential
support service component are added to §409.525(a)(3)(D)(iii).
Subsection (i) of §409.530 is revised to require proof of the denial
of claims for adaptive aids from only those sources for which an individual
may be eligible to receive services. Subsection (j) is revised to require
that claims for adaptive aids costing $500 or more or minor home modifications
costing $1,000 or more be supported by an individualized assessment conducted
by a professional qualified to assess whether the adaptive aid or home modification
is appropriate to meet an individual's specific needs. In the same section,
subsections (k)(3) and (4) are combined as revised subsection (k)(3) and new
subsection (k)(4) permits the department or its designee to deny or recover
payment made to a program provider if a provider serves four individuals living
in the same residence without the department's approval of the residence.
Subsection (k)(7) is revised to clarify that written documentation supporting
the need for a minor home modification or adaptive aid must conform to provisions
of §409.530(j) to avoid denial of a claim for these services.
Revisions to §409.542 clarify that residences must be approved by
the department or its designee when a program provider proposes to serve four
individuals in a single residence. In addition, the revisions specify the
written documentation that must be submitted for consideration of approval
of such a residence, the requirements and conditions under which a temporary
approval of such a residence may be made, the timeframe for notification of
the department's approval, and the minimum provisions that must be met prior
to a program provider initiating services in such a residence.
Several revisions have been made to the MRLA Program Principles for Program
Providers that are a part of §409.531. In principle 7, the word "agreement"
is added at the end of the first sentence from which it was omitted inadvertently
in the proposal. Grammatical errors are corrected in principle 16.2 with the
replacement of "or other" for "and" and in principle 16.4 with the replacement
of "that" for "which." Also in principle 16.4, the word "safety" is added
in the phrase "fire safety authority" to be consistent with other provisions.
Principle 13(c) is revised to clarify that for those individuals receiving
supervised living, the services and supports are provided as needed by the
individuals during non-sleeping hours as well as by a service provider who
is present in the residence and able to respond to the individual's needs
during normal sleeping hours. That principle and principle 13(d) are revised
to be consistent with the structure of other provisions within principle 13.
Principle 14 is revised with the substitution of "or" for "and" to correct
the language as proposed. Principles 14.02 and 14.03 are combined to assist
reader comprehension, and "or" is substituted for "and" in two places to correct
an oversight in the language as proposed. Principle 14.04 is deleted because
it is repetitious of provisions in §409.542 of the rule text. Principle
29 and principle 32, concerning the program provider's responsibilities to
prevent abuse, neglect and exploitation of individuals and for reporting and
responding to allegations such have been revised to insert the term "exploitation"
where appropriate. Principle 32 is further revised to require the program
provider to ensure that provider personnel report abuse, neglect, or exploitation
as instructed, to take necessary action if the program provider suspects abuse,
neglect or exploitation as well as when notified of such, to specify that
the posting of information regarding the program provider is required only
in residences in the direct service provider or the program provider hold
a property interest, to notify an individual or the individual's LAR of the
completion of an investigation of abuse, neglect, or exploitation by Texas
Department of Protective and Regulatory Services. Principle 33 is revised
to specify the
Life Safety Code
provisions
a residence must satisfy if four individuals will live and receive services
in a residence and that the residence must be approved by the department or
its designee. Principle 42 is revised to clarify that the experience requirements
as described apply only to a person working for the program provider and not
to service providers engaged to provide a specific service component to an
individual.
Revisions to the MRLA Program Principles for Authorities, which are a part
of §409.541, include deleting the word "are" that inadvertently was included
in the language as proposed principle A7. In addition, principles A5.1, A13,
and A29 are revised to include reference to an individual's legally authorized
representative (LAR) acting on behalf of the individual. The word "exploitation"
is added in principle A26.
A public hearing was held on October 26, 1999, in Austin, to accept oral
and written testimony concerning the proposal. Some of those who testified
also submitted written comments. Comments were received from two parent/guardians
of a consumer receiving waiver program services, The Woodlands, and the parent/guardian
of a state school resident, Garland.
Comments were received from the Private Providers Association of Texas
(PPAT) and from seven private providers of waiver program services: Ability
House, Corpus Christi; American Habilitation Services (AHS), Longview; Bethesda
Lutheran Homes & Services, Cypress; Community Options, Inc., Austin; Concept
Six, Austin; Educare, Austin; and Empowerment Options, Inc. Austin. The advisory
committee to a waiver program provider, Willand Inc., White Oak, also submitted
written comments.
Seven advocacy and consumer organizations submitted comments: Advocacy
Inc., Austin; Parent Association for the Retarded of Texas (PART), Austin;
Texas Association for Mental Retardation (TAMR), Austin; Texas Respite Resource
Network, Austin; The Arc of Texas, Austin; and The Disability Policy Consortium,
Austin.
Two local mental retardation authorities/community centers submitted comments:
Austin/Travis County MHMR, Austin, and Tarrant County MHMR Center, MR Provider
Services, Fort Worth;
The Texas Department of Human Services, Long Term Care Policy division,
also submitted comments.
Concerning the fiscal impact statement in the proposal preamble that projected
a savings to state government, a commenter questioned whether the department
had factored in the costs of additional staffing and complying with
Seven commenters stated that the department had failed to consider several
crucial factors when developing the statement in the proposal preamble that
no adverse economic effect on small business or micro businesses was anticipated
because the reimbursement rates will sufficiently compensate providers. Among
the crucial factors cited by the commenters were the expenses of complying
with
Life Safety Code
requirements, occupancy
issues, day habilitation, wage and hour issues, availability of an adequate
labor force for live-in staff, service coordination, breaking leases and finding
appropriate alternative housing, and the suspension of the annual inflationary
rate adjustments as prescribed in the current reimbursement methodology. Several
of the commenters stated that preliminary reimbursement rates shared by the
department with stakeholders are not adequate to cover the costs of complying
with the amendments and new sections. The department responds that the factors
identified by the commenters relate to the adequacy of the reimbursement rates
paid to program providers, regardless of the size of the provider, and, therefore,
no changes will be made to the rule based upon these comments. The department
explains, however, that the potential costs to program providers as they implement
the new provisions related to the supervised living and residential support
service components were taken into consideration in the rate-setting process
associated with the adoption of the amendments and new sections.
Eleven commenters expressed their concerns about or opposition to the provision
that permit four individuals to live in the same residence. The commenters
expressed concern that the proposed changes in the program represent the first
step towards dismantling it because the same logic used to eliminate three-bed
model can be used to eliminate four-bed model and all future models for residential
living until all consumers are housed in institutional settings. Five commenters
stated their opposition to the provision. Three of those commenters stated
that increasing the number of individuals residing together infringes on the
privacy of each of those individuals. Two of the eleven commenters stated
that this change limits an individual's choice and control and undermines
the original intent of the program, which is to give individuals the option
of living in the community. Another commenter stated that the provision is
not in the best interests of individuals receiving residential assistance
services, many of whom moved from state schools into the community with recommendations
that they live with no more that one or two other individuals. The commenter
claimed that the department's attempt to reduce the cost of the waiver programs
at the expense of these former state school residents implies that the department
is abandoning its commitment to quality community-based services in a manner
geared to the needs of the individual. While two commenters stated their support
for program providers being paid for the actual services delivered because
some providers are currently receiving payment for having awake staff during
normal sleeping hours in residences where the provider's staff are permitted
to sleep, they opposed the provision and suggested that it be withdrawn so
that the waiver programs are not used as a vehicle for the group home model.
One commenter stated that the provision is inconsistent with the department's
principles and values as set forth in the Quality of Life Project, August
94; Values and Supports: A Vision for Mental Retardation Community Services
in Texas, June 98; the final report of the ad hoc committee on mental retardation
and managed care -- MR System for the Future, April 96 and with Texas Association
on Mental Retardation's principle of "achieving full societal inclusion and
participation of people with intellectual disabilities." The commenter summarized
the principles and values as: smaller versus larger facilities; not regulating
an individual's home in same way services are regulated; a service system
that is available, easily accessed, and used by other members of the community.
One commenter stated that individuals who are the lease holders of the houses
in which they reside will suffer negative consequences when they must break
their leases to move to a house that will accommodate four individuals and
locate one or more additional individuals in order to afford the larger residence.
The department agrees with the commenters' desire to retain the waiver system
of services that recognizes individual needs, encourages each individual's
fullest development, and supports the individual's participation in the community.
The department replies that the changes contained in the amendments and new
section achieve a balance between the values voiced by the commenters and
budgetary limitations. The department disagrees that the provision will dismantle
the program or end the opportunity for individuals to live in homes serving
three individuals. The department also disagrees that the provision permitting
four individuals to share a residence will necessarily result in the restriction
of individual rights or compromise an individual's access to or participation
in community life. For example, the fact that an individual requires the support
and assistance of a staff person during sleeping hours does not mean that
individual must also have an overall lower level of functioning than the other
individuals living in the home. The provision does not relieve the program
provider or the service coordinator from the responsibility to protect and
promote the individual's rights and ensure that services and supports are
consistent with an individual's person-directed plan. The department commends
those program providers and advocates who encourage and assist individuals
to be leaseholders or owners of their own homes. However, under the final
rules, these individuals would not be eligible to receive supervised living
or residential support because they do not live in a residence in which the
program provider holds a property interest. These individuals would appropriately
receive supported home living services or companion care services and, therefore,
should not need to move to a home for four individuals in order to continue
receiving waiver program services.
A commenter expressed concern that a fourth individual may move into a
residence whose need for supervision and assistance by awake staff during
sleeping hours is temporary or cyclical and would remain in the home on a
permanent basis once the need no longer exists. The commenter requested that
a provision be included in the subchapter to accommodate situations in which
an individual may require awake staff on a temporary or cyclical basis. The
department responds that a program provider should not establish a home for
four individuals in order to meet an individual's short-term needs. The department
believes that such short-term needs can be accommodated within the provisions
of the rule and declines to add the provisions requested by the commenter.
One commenter expressed reluctant support for the provisions permitting
up to four individuals to live together in a home with staff who are awake
during normal sleeping hours. The commenter stated that no other viable alternative
existed to achieve the budgetary goals established by the 76th Legislature
for this biennium. However, the commenter stated that the support was contingent
upon the department developing an approval process for any provider wishing
to add a fourth person to a home. The commenter suggested the approval process
must, at a minimum, require the provider to submit documentation that person-directed
planning involving all members of the household was used to arrive at the
decision to add a fourth person and clearly describe efforts that have been
made and will continue to be made to move individuals to a less restrictive,
in-home support, or foster/companion care model. The department appreciates
the commenter's support but declines to adopt the standards for approval of
a residence as recommended. The department notes, however, that in implementing
the changes to the residential assistance array, service coordinators and
program providers must continue to assure that individuals and their LARs
are informed of feasible alternatives and that individuals and their representatives
participate fully in decisions regarding where the individual lives and receives
services. Decisions related to possible changes in living arrangements should
be based upon consideration of an individual's current person-directed plan.
Two commenters stated that "small" providers and families with a strong
stake in the current HCS residential model were underrepresented on the two
workgroups convened by the department to provide input on the redesign of
the HCS program. The commenters stated that families of consumers currently
being served in three-person residences will work hard to make it viable for
the long haul. The department responds that the composition of both the Utilization
of Resources and the Access to Services workgroups was balanced with representation
from family members of individuals receiving waiver program services, large
and small providers, advocacy organizations, and local MRAs. The department
believes that the viability of waiver program group homes depends on individuals
and families working with providers to reassess an individual's needs and
prioritize those needs within budgetary allocations.
Two commenters stated that many parents of consumers have said they thought
placing their adult child in a setting to receive residential assistance ensured
that the individual was appropriately and permanently placed and that the
state could be trusted to take care of the individual after the parent(s)
died. The department responds that the current changes to the MRLA program
service array are intended to ensure that the department will be able to continue
providing community-based services that are both effective and affordable.
The department explains that other possibilities, such as adjusting the eligibility
cap, were considered but rejected as being potentially more disruptive to
a larger number of individuals.
One commenter expressed concern about the impact of the changes on the
department's Quality Improvement and Assurance System (QAIS) for community-based
mental retardation services. They suggested that allowing four person group
homes would make it more difficult for providers to achieve compliance with
the 1997 Personal Outcome Measures from The Council on Quality and Leadership
in Supports for People with Disabilities which are the basis of QAIS. The
commenter stated that increasing the number of residents in a home by 33%
automatically makes supporting personal choices and, ultimately, achieving
personal goals more difficult. The commenter further stated that four of the
seven categories of personal outcome measures -- identity, autonomy, affiliation,
and attainment -- will be more difficult to achieve in a larger residential
setting. The commenter also suggested that the remaining three categories
-- safeguards, rights, and health and wellness -- also may be adversely affected.
The department disagrees that the changes to the HCS program service array
make attainment of certain outcomes more difficult. Further, the department
notes that the size of a residential setting should not dictate whether or
not personal outcomes are achieved. Achievement of personal outcomes rather
is a result of the values and philosophy adopted by the program provider and
its focus on assisting individuals in realizing their goals.
Three commenters recommended that the department establish incentives to
make the foster/companion care model a more viable option in the waiver programs.
One of the three commenters said the department, at a minimum, should develop
overall program guidelines based on successful foster/companion programs and
provide training and ongoing technical assistance. The other two commenters
stated that the department should prioritize the expansion of foster/companion
care. They acknowledged that this model may not meet the needs of all waiver
program consumers and will not work in all communities, but stated that this
model is cost effective and ensures a high quality of life for consumers.
The department agrees with the commenters that foster/companion care can be
cost effective and provide a high quality of life for some individuals, and
will continue to study the recommendations. However, to realize the necessary
cost savings during the current biennium, the department is using available
resources to implement the current program changes.
Two commenters expressed concern that in trying to reduce program costs
the department will find itself in the position of another state which had
implemented an aggressive foster care program. According to the commenters,
a high number of abuse allegations involving that program resulted in federal
intervention and requirements for significant changes. The department appreciates
the commenters' concern and replies that any actions the department may take
to encourage the use of foster/companion care would be accompanied by measures
to assure the safety and well-being of individual's in those settings.
One commenter requested the department to provide significant training
and technical assistance to program providers in using the supported home
living and foster/companion care service components as an alternative to providing
services in small group homes. The commenter noted that many providers are
hesitant to try alternatives to the "group home/24 hour staffing model." The
department agrees that such training may be useful for some providers and
will consider this in planning for training for program providers and MRAs
on the current rule changes.
One commenter recommended that the department develop a plan allowing six-bed
ICF/MR homes to transition to a six-bed shift staff waiver home on a voluntary
or piloted basis. After the transition, each consumer in those homes should
be reassessed and, as appropriate, transitioned to less-restrictive living
environments consistent with their needs and desires. The commenter stated
that the total number of six-bed Medicaid-funded homes must not be increased
under this plan. The department acknowledges the commenter's restatement of
this recommendation by the Utilization of Resources workgroup. The recommendation
continues to be considered by the department, however, to realize the necessary
cost savings during the current biennium, the department is using available
resources to implement the program changes.
The same commenter recommended that the department immediately undertake
an in-depth review of state school residents recommended for community placement
to determine whether the plans of care for those individuals would exceed
the 125% eligibility cap for a waiver program. The department responds that
interdisciplinary teams at SMRFs currently conduct in-depth reviews of service
needs for individuals recommended for community placement. MRA service coordinators
will develop a proposed individual plan of care (IPC), based upon the identified
service needs, to establish an individual's eligibility for the MRLA program.
Those individuals whose IPCs exceed the 125% cost ceiling will not be eligible
for enrollment. The local MRA will assist individuals recommended for community
placement in determining appropriate alternatives if HCS eligibility is not
established.
The same commenter stated that full implementation of the proposed restructuring
efforts probably will not occur for at least two years, and recommended that
the commissioner should have the authority to waive, on a case by case basis,
the 125% cap for consumers "capping out" of a waiver program. The commenter
stated that this authority should be exercised only if all other utilization
review efforts designed to reduce the individual's plan of care below 125%
have been exhausted. The department declines to include such a provision in
the new subchapter because such a provision is counter to achieving the cost
savings objectives.
Two commenters recommended that the department should fully examine all
possible options before adopting the proposed new structure for the waiver
programs. The commenters stated that the department's Utilization of Resources
workgroup was not allowed to examine all possible alternatives for achieving
cost efficiencies in the waiver programs, and suggested that the following
five alternatives should be studied: transferring persons between the ICF/MR
and MRLA program; creating incentives for foster care; returning to a flat
rate reimbursement system; analysis of cost savings related to enforcement
of current caps; and other utilization review activities. The commenters further
stated that the workgroup was never presented with complete information about
the amount of savings needed, nor was a thorough cost analysis presented to
the workgroup of the savings that would be achieved either with the proposed
changes or other possible actions and/or options. Two other commenters recommended
that the proposed subchapter not be adopted and that the workgroup should
be reconvened and attempt to develop a more viable alternative. The department
responds that each of the alternatives addressed by the commenters was considered
by the workgroup, and that information available at the time concerning estimated
costs savings and the relative impacts of different alternatives was presented
to the workgroup. After the appropriation was known, changes to the MRLA program
incorporating the workgroup's recommendations were proposed in these amendments
and new sections. The workgroup considered both short and long term strategies,
some of which continue to be evaluated as the department considers future
program modifications that will improve the cost effectiveness of service
delivery and enhance the flexibility of the program to respond to individual
needs and capabilities.
Four commenters stated that the workgroup never developed a vision for
the future of the waiver programs, which is critical in any planning process
and would have served as useful guide in the workgroup's exploration of appropriate
and sequential steps necessary to achieve the vision. One of the three commenters
questioned whether the department would respond to future cost issues by increasing
the residential model to permit even more individuals in a single residence.
The commenter stated that the integrity of the program shouldn't be sacrificed
based on the budget, and that values must dictate the budget not the other
way around. The commenters also stated that the workgroup was informed that
proposed changes, especially with regard to residential models, were only
interim. The commenters stated that if this is true, all stakeholders will
be adversely affected should further program changes be imminent. The department
states that its vision for the waiver program is a system of community-based
services and supports that is effective, affordable, flexible, and consumer-drive
remains unchanged. The department explains that to maintain a balance of quality
of services within budgetary constraints, the department is committed to continuously
assessing the system of services and making appropriate changes. Maintaining
this balance preserves the vision and integrity of the program and the values.
Three commenters expressed concerns with the costs of nursing care being
"bundled" into the daily fixed rates of the residential support and supervised
living components as opposed to the current practice of reimbursing for nursing
care on a fee-for-service basis. The commenters asked how the department arrived
at the decision to include nursing care costs. Two of the commenters recommended
that providers be reimbursed on a fee-for-service basis for those nursing
care costs that exceed the portion of the fixed daily rate that covers nursing
care costs, with one of those commenters stating that department staff had
indicated in meetings with providers that the proposed rule will be revised
to permit this. Three of the commenters requested that the department not
include nursing services in the rates for residential support and supervised
living, but continue to reimburse for all nursing services on a fee-for-services
basis. Two expressed concerned that the level and quality of nursing provided
to individual consumers will be adversely affected by including nursing care
costs in the rate for these two service components. Two stated that providers
are being expected to provide the same level of services for drastically reduced
funding; one of those two commenters stated that the residential rate already
is being reduced by 28% before nursing costs are even included. One commenter
questioned whether the nursing services received by consumers under foster/companion
care would be affected by this change in reimbursement methodology since this
service component also is reimbursed on a per diem basis. The department has
reviewed and considered the comments submitted concerning this issue, and
has decided not to include nursing services in the reimbursement rates for
residential support and supervised living. Nursing services will continue
to be reimbursed on a separate, fee-for-service basis. The department will,
however, continue to consider other reimbursement methodologies to achieve
administrative efficiencies and appropriate levels of nursing services in
the MRLA program.
Eight commenters expressed concerns about the short timeline projected
by the department for implementation of the waiver program changes on March
1, 2000. Seven of the eight commenters stated that this transition period
is unrealistic and doesn't permit adequate time for consumers, family members,
and providers to make plans, and recommended that the department establish
a more reasonable and adequate transition period. Three commenters identified
three broad areas of difficulty: providers having to cancel leases and locate
different property to accommodate the four individuals, necessary and potentially
costly renovations to comply with
Life Safety Code
requirements, and consumers and families working with providers to
make choices about where the consumer wants to live and the type of services
desired. Four commenters stated that the proposed transition period doesn't
allow sufficient time for consumers and family members to exercise true choice.
One of those four commenters stated that to ignore input from and the wishes
of consumers and family members to meet an unnecessary deadline sets a terrible
precedent for the HCS program. Two commenters expressed serious concern that
some providers will be forced out of business as a result of the proposed
changes and the short transition period, thus reducing the options for consumer/family
choice of providers and settings. Those two commenters suggested that more
time be allowed to transition consumers to alternative arrangements if their
providers elect to leave the program. Four commenters recommended extending
the transition phase by periods varying from three to 12 months. Another commenter
stated that a projected two-month transition period with less than a year
of forethought is insufficient for the proposed radical changes to the 15-year-old
HCS program and compared that with the year of preparation that preceded implementation
of the MRLA pilot. That commenter supported this assertion with references
to "significant and unresolved issues relating to service coordination, utilization
control, provider reimbursement, enrollment and certification, client transfers,
separation of authority and provider functions and many others." Two commenters
stated that while the department has been discussing and planning the proposed
changes for years, providers and parents have just begun to understand the
implications of the changes. One commenter asked what timelines the department
anticipated for the transition. The department acknowledges the concerns expressed
by the commenters regarding the implementation schedule and has, through the
rate-setting process accompanying the adoption of the new subchapter, provided
additional time for individuals and their families to work with their program
providers to evaluate available options. In addition, this action will allow
program providers additional time to evaluate their service systems and make
adaptations necessary consistent with the provisions of the amendments and
new sections concerning supervised living and residential support which become
effective March 1, 2000. These timelines are necessary if the department is
to meet budget projections.
Four commenters stated that the department's stated intent to allow providers
to begin transition activities before the Health Care Financing Administration
(HCFA) approves the associated waiver amendment and before the projected effective
date of the new rules places providers and consumers at risk. One commenter
recommended that implementation of the proposed new rules be suspended until
HCFA has approved the waiver amendment. Two of those commenters recommended
that the transition period should begin only after all approvals are obtained,
with one of the two also recommending that sufficient training be provided
to all affected parties before transition begins. Two commenters suggested
that implementing the program changes before receiving HCFA's approval could
result in a situation similar to that with the Mental Retardation Local Authority
(MRLA) pilot waiver when implementation of the program had to be delayed pending
revision of the waiver to meet HCFA's objections. The department responds
that those portions of the waiver that must be amended do not deviate from
the types of services approved under §1915(c) of the Social Security
Act. Therefore, the department will proceed with adoption and implementation
of the program change contemporaneously with the submission of the waiver
amendment to HCFA. The department explains that services may continue in the
MRLA program pending HCFA's approval of amendment to the existing, approved
waiver which is not the case when a state seeks initial approval of a new
waiver request. Implementation of the program changes will not occur prior
to the projected March 1, 2000, effective date of the new subchapter.
A commenter suggested that the department explore the "parents as case
managers model" and a voucher model that is consumer/family controlled as
a method for achieving substantial savings for the HCS program. The commenter
stated that parents often have experience developing a plan and managing a
budget through their previous experience with in-home and family support grants
and might prefer not to have case management. The commenter said that option
for case management should remain available for those who need or prefer that
model. The commenter further suggested that client-managed attendant services
have been successfully piloted by the Texas Department of Human Services,
and that the state has the opportunity through Senate Bill 1586 of the 76th
Legislature to expand the voucher model to other programs, including long
term care waivers. The commenter stated that the voucher model would complement
the responsibilities of the MRAs. The department appreciates the commenter's
suggestion to explore the two design modifications mentioned. The department
will continue to evaluate and recommend program modifications that will improve
the cost effectiveness of service delivery and enhance the flexibility of
the program to respond to individual needs and capabilities.
Five commenters expressed concerns with the economic and environmental
impact of
Life Safety Code
(LSC) requirements
when a provider implements the "four-bed model." The commenters stated that
the department has not fully investigated which chapter of the LSC will be
applicable for this model, despite numerous requests to do so. Four commenters
observed that the preamble acknowledges the probable existence of economic
costs but does not provide an estimate of the probable fiscal impact, and
stated that the reimbursement rate for the four-bed model must address the
costs of complying with the LSC requirements. Two commenters stated that numerous
requests have been made of the department to make a determination of which
LSC chapter will apply and the cost of compliance, but the department has
not responded. The commenters stated that until the department establishes
which LSC requirements apply, providers will not know what environmental changes
must be made and whether they are affordable. One commenter stated that incorporating
a sprinkler system in leased homes to comply with one LSC requirement would
be problematic because the owners will not allow or make the necessary renovations
due to cost. Two commenters stated that consumers who own or lease their homes
will not be able to afford to comply with the LSC requirements, and stressed
that this is the responsibly of the consumers since all room and board costs
belong to the consumer, not the provider. The commenter added that if a landlord
does agree to pay for such changes, the resulting increase in rent might be
beyond the means of even four consumers. The commenter further stated that
if the provider assumes the financial responsibility of making homes LSC compliant,
this would be viewed by supplemental social security and Medicaid authorities
as a form of "subsidy" which would reduce the amount of SSI received by the
consumer and any reduction would adversely effect the consumer's ability to
live in any community setting. Three commenters stated that complying with
the LSC would effectively reclassify HCS homes as "facilities." One of the
three stated that current residential zoning codes that limit usage to single
family homes would also have an adverse effect. A commenter stated that the
individual's right to one-time, lifetime modifications permitted in the HCS
program should not absorb the LSC-related costs. The department responds that
the LSC requirements that must be met if four individuals live and receive
services in the same residence as specified in the MRLA Program Principles
for Program Providers, Principle 33.01. These residences must meet LSC requirements
applicable to small residential board and care facilities as contained in
the 1994 edition of the LSC, which has been adopted by the Texas State Fire
Marshal's Office. The department emphasizes that these are minimum requirements
and recognizes that enforcement of local building codes and fire safety requirements
are within the jurisdiction of a community's local officials rather than the
department's. The department further responds that, in the associated rate-setting
process for the supervised living and residential support service components,
it is considering the costs of transitioning to the provision of the newly
defined supervised living service component and the re-defined residential
support service component. With regard to consumers who own or lease their
homes having to bear the costs of home renovations necessary to meet LSC requirements,
the department responds that the department's approval of residences applies
to those homes in which the program provider holds a property interest (i.e.,
property leased or rented by the program provider). Additionally, the rules
specify that supervised living and residential support be provided in a residence
in which the program provider holds a property interest and that if four individual's
receive services in the same residence one must receive residential support.
Therefore, if a consumer owns or leases a home, the program provider would
not hold a property interest in the home, the home would not be subject to
the department's approval under the provisions of §409.542, and would
not qualify as a service site for four individuals. The department disagrees
that the program provider's assumption of financial responsibility for necessary
renovations to a home where four individuals will live and receive services
would be viewed as a "subsidy" and result in a reduction of an individual's
SSI benefits. As the program provider controls a residence in which supervised
living or residential support is provided, it is the program provider's responsibility
to ensure that the residence meets all applicable building and safety standards.
With regard to limitations imposed by zoning restrictions, federal and state
law provides protection against zoning ordinances that have discriminatory
effects on individuals with disabilities and, therefore, the department does
not anticipate homes in which four individuals live will be significantly
impacted by the described zoning provisions. Finally, the department agrees
that an individual's minor home modification benefit not be used to cover
the cost of renovations required to meet LSC requirements. The intent of the
minor home modification benefit is to enhance accessibility and improve functioning
of the individual; not to assure a residential structure complies with local
building and safety codes applicable to the residence.
Three commenters recommended that the department provide timely and adequate
training to all stakeholders. One of the commenters additionally recommended
that the department convene a workgroup to develop detailed guidelines and
procedures for the transition to and implementation/operation of the program
changes. One commenter stated that at least six months preparation time prior
to implementation was necessary in addition to training and technical assistance.
Two commenters recommended that the department develop and disseminate detailed
written guidelines to all program providers, with one of the two recommending
that the information should include, at a minimum, the existing utilization
guidelines and any revised guidelines intended for use by the department in
authorizing plans of care above the 100% waiver program eligibility cap. The
department responds that a task force charged with addressing transition issues
began meeting in early January to assist the department in developing implementation
strategies to include planning for training and ongoing technical assistance
for both MRAs and program providers. The department agrees that training is
essential to properly implement significant systems changes and will include
a review of utilization review guidelines and plan of care authorization processes
in both the initial training and ongoing technical assistance.
Two commenters stated that unless the program changes as proposed are modified,
small non-profit providers are endangered. The commenters stated that these
providers have the potential to provide the highest quality of individualized
care in a cost-effective manner. The department responds that each program
provider will have to evaluate its own circumstances to determine what is
best for the future of its business. The changes to the program are significant
and could result in some providers choosing to cease operations.
Two commenters criticized the timing and manner in which individuals and
their families learned of the proposed changes, and requested that more timely
notification be provided to all stakeholders of planned changes to the program..
One commenter stated that the department postponed issuing a letter to individuals,
LARs, and concerned family members until after the public comment period on
the proposed new subchapter had ended. The commenter described the October
26, 1999, public hearing as the most critical opportunity for stakeholders
to share comments and stated that the hearing was not sufficiently publicized.
Further, the commenter stated that the department did not adequately address
a written request by a provider association in July that additional notification
mechanisms be used. The commenter recommended that the department utilize
other ways of notifying all stakeholders of major actions in addition to the
required publication of the proposal in the
Texas
Register
. A commenter acknowledged that while something must be done
to reduce the average monthly cost per individual, the commenter does not
believe the legislature intended for individuals to be displaced from current
settings or for guardians and family members to be left out of the process
which decided what changes should be made to the waiver programs. The department
regrets that certain commenters did not feel they were adequately informed
of the proposed revisions. The department solicited the advice and insights
of program providers, MRA staff, and advocate groups representing individuals
and their families through two workgroups in formulating the recommendations
incorporated in this new subchapter. The department is not able to inform
and confer with each stakeholder and, at the same time, propose changes that
can allow the continuation of services with the potential of extending services
to persons on the waiting lists. The department has corresponded with individuals
and their family members and with program providers who have communicated
their questions and concerns about the proposed program changes, and has provided
information about the possible outcomes.
With regard to providing the supervised living service component, a commenter
stated that it is uncertain whether a sufficient number of persons are interested
in a live-in job to fill all the positions needed, and therefore, requested
that language be included in the subchapter relieving private program providers
of the current "zero reject policy" when the provider is unable to accommodate
an individual because appropriate staffing cannot be provided. With regard
to the description of conditions under which the supervised living component
is provided, one commenter stated that a limited employment market would reduce
the program provider's ability to hire direct service providers who are willing
to live in homes in which the program provider holds an interest. The department
clarifies that the supervised living component requires the presence of a
direct service provider in the residence during normal sleeping hours but
does not require that provider to live in the residence. Second, the department
acknowledges that labor market characteristics are an important consideration
for all program providers but it declines to allow exception to the current
zero reject policy. The department acknowledges the program provider's obligation
to comply with Department of Labor standards and that the program provider
will have different standards to satisfy if the program provider chooses to
change from a staffing pattern using awake-staff to one using "on-call" asleep
staff. The department responds that the final rule does not stipulate the
employment conditions for direct service providers.
A commenter objected to the requirement for awake staff as provided in
the residential support component and questioned whether the department had
calculated the cost of awake staff for the residential support model, explaining
that this expense will be higher than the cost of complying with
Life Safety Cod
requirements. The department responds that it has considered
the cost of awake staff in the development of the reimbursement rate for residential
support.
Two commenters recommended that the department "sunset" those provisions
that permit up to four individuals to live together in a home before March
1, 2002. One of commenters stated that during the intervening two-year period,
the department should explore all other viable alternatives and move toward
a reimbursement model that is not based on living arrangement. The department
responds that it declines to set an expiration date for the referenced portion
of the rule. The department remains committed to an on-going evaluation of
the program to identify methods that will improve service provision and cost
efficiencies. In addition, the department notes that all department rules
are subject to a legislatively mandated review process every four years.
Two commenters stated that individuals and family members are reporting
to advocacy organizations that some providers who currently serve individuals
living in three-bed residences are moving wholesale to four-bed residences.
The commenters stated that these providers are not presenting these individuals
and family members with the option of staying in the current setting. The
commenters characterized this as disconcerting, given that the department
has indicated that the HCS program must begin to move away from the residential
model. The department has informed program providers that individuals are
to receive services in the location most appropriate to their needs. In addition,
the department has recommended that program providers not assume that all
individuals currently living in a three person group homes should automatically
live in four-person group homes.
Three commenters objected to the provision at §409.501(a) that states
that the MRLA program may be extended to additional counties with approval
of the Health Care Financing Administration. Two of the commenters stated
that HB 2896 placed a moratorium on future Medicaid managed care pilots. The
third commenter stated that prior to further expansion of the MRLA program,
a full evaluation should be completed and problems and issues in the current
pilot sites should be resolved. With regard to the first comment, the department
replies that it will request HFCA approval to expand the MRLA Program only
with the approval of the Texas Health and Human Services Commission and will
comply with any limitations placed on such expansion by state or federal law
in effect at the time of such a request. In response to the second comment,
the department states that the expansion of the MRLA program will be planned
with consideration of the department's on-going evaluation of the MRLA program
and its cost effectiveness. The department adds that the selection of future
MRLA program sites will include an assessment of the readiness of MRAs which
have expressed a desire to be included in the MRLA program.
With regard to §409.503(a) which states that service coordination
is provided by the MRAs, one commenter stated that the provision is unfair
because private providers are equally involved in the provision of service
coordination and are uncompensated. The department disagrees that the program
provider is responsible for service coordination functions but acknowledges
the program provider's responsibility to assure that direct services occur
for individuals as indicated on their plans of care. The department explains
that program providers are reimbursed for administrative activities necessary
to support the direct provision of services through the administrative fees.
The provision noted by the commenter did not change the MRA's responsibilities
for service coordination and will be retained in the final rule as proposed.
One commenter stated that the "criteria used" to define supervised living
at §409.503(b)(3)(C) was unclear. The department responds that the descriptions
of MRLA program service components at §409.503 are not intended as full
definitions of the service components. Principles P13 and P14 of the MRLA
Program Principles for Program Providers ("Provider Principles") define supervised
living and the number of individuals who may share a residence and receive
supervised living.
Once commenter stated that provisions at §409.503(b)(3)(D) appears
to contradict "the requirements in providing day habilitation as a reimbursable
service under MRLA." The department replies that the cited provisions regarding
residential support do not preclude reimbursement for the provision of day
habilitation.
With regard to the description of supported employment at §409.503(b)(5),
two commenters questioned the removal of the sentence stating that a person
must have an identified need and desire for supported employment. The department
replies that the language was removed from this portion of the rule because
the provisions of §409.525, concerning the development of a person-directed
plan and an individual plan of care, and of §409.527, concerning the
renewal or revision of an individual plan of care, stipulate that all services
included in an individual's plan of care be based on identified needs and
the outcomes identified in the person-directed plan by the individual, the
individual's LAR and service planning team.
One commenter suggested that §409.507(b) be revised to indicate that
staff timesheets submitted as supporting documentation of the need for an
increase in an individual's LON be "maintained by the MRA" rather than "maintained
in the individual's record." The commenter noted that this type of documentation
is routinely maintained as part of the MRA's utilization review record and
as part of program providers' administrative records rather than as part of
the individual's record. The commenter further recommended that the rule specify
that a "sample" of such timesheets be submitted and retained. The department
replies that documentation supporting the level of payment to a program provider
should be maintained by MRAs and program providers in a readily accessible
manner and would be considered to be part of the "individual's record" even
though the documentation may be kept separately from other portions of an
individual's record. With regard to the commenter's second recommendation,
the department explains that the rule requires that supporting documentation
be sufficient to justify the recommended LON and that, depending upon the
specific case, a "sample" of such documentation may not be sufficient. The
department, therefore, declines to make the recommended revisions.
A commenter noted that MRAs do not routinely submit all documentation supporting
a recommended LON and requested the department to revise §409.507(c),
(e), and (f) and at 409.527(b)(2) to indicate that an MRA submits documentation
supporting a recommended level of need when requested by the department. The
department declines to revise the rule as recommended because §409.507(c)
states that the submission of documentation by an MRA must follow department
guidelines which specify procedural requirements. The department further notes
that the rule does not require the routine submission of supporting documentation
for all LON assignments.
One commenter recommended that the rule be revised at §409.507(c)
to indicate that the assignment of all LONs except LON 9 (Pervasive Plus LON)
be "fully delegated" by the department to the MRA based on the achievement
of a high level of consistency in the assignment of LONs between the MRAs
and the department. Because consistency between the department and MRAs in
LON assignments continues to be established, the department responds that
the commenter's recommendation will be taken into consideration but the recommended
revision to the rule will not be made.
A commenter suggested that §409.511(a) be revised to indicate that
the department "or its designee" may conduct a utilization review prior to
payment authorization. The department declines to revise the rule as recommended
as the MRA's responsibilities include the performance of reviews of recommended
levels of need and individual plans of care prior to submission for the department's
approval.
A commenter requested that the rule be revised at §409.511(b) to indicate
that the MRA maintains documentation supporting recommended IPCs, and LONs
rather than routinely submitting the documentation for utilization review
by the department. The department responds that the noted section does not
require the routine submission by the MRA of the noted supporting documentation
but the department has clarified the section to indicate that such submissions
are to be made in accordance with department guidelines.
Two commenters requested that the wording at §409.505(b), §409.525(a)(3)
and §409.527(a) regarding the participation of the individual and the
individual's legally authorized representative (LAR) in service planning teams
be changed to indicate the individual "and/or" the LAR participate. The commenters
noted that LARs "make the decisions and do the planning" and some individuals
would not be able to participate in the team meeting and would be very disruptive.
The department declines to make the revision as requested and responds that
it believes all individuals, including those with an LAR, should participate,
within their capabilities, in the development of their service plans.
One commenter requested the department to specify in §409.525(a)(2)
that when the MRA service coordinator informs an applicant of his/her right
to choose between the HCS Program and the ICF/MR Program, the MRA assure that
the applicant is also informed of the right to choose to receive ICF/MR services
in a state school or community ICF/MR. The commenter also recommended that
the language "1915(c) waiver program" be added. The department responds that
the provision has been revised to clarify that the service coordinator will
inform the applicant or the applicant's LAR of the choice of ICF/MR services
as provided by a state school or community-based program or other services.
The department has not specified "1915(c) waiver program" in the language
because the MRLA program is a 1915(c) waiver program.
One commenter stated that language at §409.527(a)(2) implies that
the MRA must submit an "actual" IPC form to renew or revise an IPC. The department
disagrees with the commenter's interpretations and states that the submission
of the IPC form must conform to departmental procedures and guidelines which
may require electronic submission.
One commenter requested that the timeframes for individual plan of care
(IPC) development and subsequent renewals be clarified in §409.505 (b)(2).
The department responds that the timeframes for the development of an initial
IPC are contained in principle 12 of the MRLA Program Principles for Mental
Retardation Authorities ("Authority Principles") and those for the development
of a renewal IPC are specified in §409.527(a) of the rules. Therefore,
the department declines to restate the timeframes in the section noted by
the commenter.
A commenter requested that the timeframes for the LON assignment process
be clarified in §409.507. The department responds that the timeframes
for initial LON assignments are contained in principle 12 of the "Authority
Principles" and those for renewal of the assignments are specified in §419.527(b)
of the rules. The department declines to restate the timeframes in the section
noted by the commenter.
Two commenters stated that the legislature has said that the department's
"MR Priority Population is the most in need" and requested that §409.523(1)
be revised to state that individuals are registered on the waiting list based
upon the individual's level of need rather than chronologically by the date
of the request. The department appreciates the comment but declines to make
the recommended revision. While the department has considered defining a different
waiting list policy, resolving this critical issue requires further consideration.
One commenter requested the department to specify in §409.525(a) if
an individual must submit a written request for MRLA program services or if
the request can be made by telephone. The department agrees that the manner
of the request should be specified and has revised the subsection to indicate
than an individual or individual's legal representative must submit a written
request for MRLA program services to the MRA.
One commenter requested that timeframes for provider payment be "clarified"
in §409.530(e) which states requirements for program providers' initial
submission of claims for reimbursement. The department responds that governmental
agencies must pay for goods and services in compliance with Texas Government
Code, Chapter 2251. Specifically, §2251.021 of that chapter describes
when payments are due. Therefore, information related to the time for payment
of program providers is neither necessary nor appropriate for this rule.
One commenter noted concerns that the requirement at §409.530(i) for
written verification of the denial of reimbursement for an adaptive aid by
another payment source would slow down the provision of aids that may be necessary
to meet an individual's health and safety needs. The commenter suggested adding
language that allows the MRA to approve health or safety equipment quickly.
The commenter also recommended the addition of provisions that "allows for
documentation that the adaptive aid or dental service is not a covered service
through other sources or other benefit plans. The department has clarified
the section to indicate that verification of denial is necessary from only
those other sources "for which the individual may be eligible to receive services."
The department believes the provision ensures that other resources have been
exhausted before MRLA program resources are used and declines to include the
recommended revision.
To improve consistency in language, a commenter suggested revising §409.542(d)
to state that the department "or its designee must approve a residence..."
The department agrees and has included the recommendation in subsection(f)
of this revised section.
Two commenters requested revisions to §409.531, §409.541, MRLA
Program Principles for Program Providers addressing "Qualified Staff," and
principle 6 of the "Authority Principles" to include state law requirements
for criminal history checks of employees. The department declines to make
the recommended revision as this requirement is stipulated in principle 41
of the MRLA Program Principles for Program Providers ("Provider Principles").
In addition, employees of MRAs are subject to criminal history checks conducted
in accordance with Chapter 414, Subchapter K of this title concerning Criminal
History Clearances.
A commenter recommended revising principle 6 of the "Provider Principles
to state that the program provider must ensure that services and supports
are delivered "in a timely manner." The commenter noted that the principles
do not prevent unjustifiable delays in the initiation of services. The department
responds that the commenter's recommendation warrants consideration by the
department and clarification of an objective definition of timeliness and
"unjustifiable delays." It is the department's opinion, however, that a program
provider would fail to meet the desired outcome of principle 6 if it is determined
that a delay in the provision of services was unjustifiable. The department
declines to make the revision recommended.
Regarding principle 13 (c) and (d) of the "Provider Principles," one commenter
stated that the requirement for the program provider to hold a property interest
in residences in which supervised living and residential support are provided
is too prescriptive and will cause difficulty for program providers who provide
24 hour supervision in a residence leased directly to consumers (such as Section
8 Housing). The commenter reasoned that consumers would pay more room and
board charges for a home leased or owned by a program provider than they would
pay with the Section 8 housing subsidy and that having consumers eligible
and receiving this benefit will assist them in the future as they move toward
more independent living. The commenter recommended that the principle be revised
to allow an exception to the requirement with approval of the department or
its designee. The department acknowledges the benefits to individuals who
are the owners or leaseholders of their own homes but explains that these
individuals would not be eligible to receive supervised living or residential
support because they do not live in a residence in which the program provider
holds a property interest. These individuals would appropriately receive supported
home living services or companion care services. The department declines to
provide for an exception to the requirement as requested.
A commenter recommended revising the language at principle 14.03 of the
"Provider Principles" to state "...no more than two other individuals receiving
MRLA program services..." The department accepts the recommendation and has
changed the language accordingly in revised principle 14.02.
One commenter requested that principle 15 of the "Provider Principles"
be revised to also specify that providers of supervised living are employed
by the program provider in addition to providers of supported home living
and residential support. The department agrees and has revised the final language
as recommended.
Two commenters requested that language be added to principle 17 of the
"Provider Principles" to indicate that an individual or the individual's LAR
must choose if they want to use supported employment as it cannot be forced
on them. The department agrees that supported employment cannot be "forced"
on an individual and further adds that no service can be "forced" on an individual.
The department declines to make the recommended revision because all services
included in an individual's plan are derived from outcomes and needs mutually
identified by the individual or the individual's LAR, if applicable, and other
members of the service planning team.
Two commenters requested that "Provider Principle" 28 be revised to indicate
that a program provider must notify the MRA of an LAR's dissatisfaction with
a decision to limit an individual's rights in addition to reporting an individual's
dissatisfaction with such a limitation. The commenters asked if a program
provider could impose limitations without the consent of the individual's
LAR. A third commenter recommended that the person not involved in the decision
to limit an individual's rights have expertise in mental retardation services
and familiarity with the department's rules related to such limitations. Alternatively,
this commenter suggested that all such limitation be approved by the MRA's
human rights committee. The department replies that principle 40 of the "Provider
Principles" requires the written informed consent of the individual or the
individual's LAR if restrictive procedures are used including when an individual's
rights are restricted. The department believes that, as the representative
of the individual receiving services, an LAR is obligated to directly report
to the MRA service coordinator any dissatisfaction with the decisions to impose
such restrictions. The department, therefore, declines to revise the principle
as requested. The department will consider the third commenter's suggestions
for future action and notes that a task force is currently reviewing all program
principles to determine necessary revisions.
Two commenters recommended that the word "exploitation" be added at "Provider
Principles" 29, 32, and 32.06 and at the "Authority Principles" 23 and 26
which concern the prevention and reporting of abuse and neglect. The department
agrees and has revised these principles as recommended.
Two commenters requested that principle 31 of the "Provider Principles"
be revised to include reference to eliciting complaints from individuals'
LARs. The department declines to revise the principle as requested as it believes
this would impose an unintended restriction on who may file a complaint. As
written, the principle is inclusive of all persons who may wish to lodge a
complaint with the program provider.
One commenter recommended that provisions at principle 32.06 of the "Provider
Principles" be revised to require the program provider to report the outcome
of all TDPRS investigations to the MRA as well as the department. The department
declines to include the recommended revision because the department is working
with TDPRS to develop processes to share pertinent information concerning
findings of investigations with MRAs which are consistent with TDPRS rules. <.One
commenter suggested revising the terms used in principles 33.01 and 33.02
of the "Provider Principles" to specify the "fire" authority having jurisdiction
to avoid confusion with the "MR Authority." Another commenter recommended
the department consider strengthening the
Life Safety
Cod
regulations contained in principle 33.01 for four-person facilities
that house persons who need assistance to evacuate. The commenter stated that
the rules do not preclude "a four bed residential unit" from being a manufactured
home, which the commenter pointed out "is not designed to house multiple persons
who cannot self-evacuate." With regard to the first commenter's suggestion,
the department agrees and has revised these principles to denote "the fire
safety authority having jurisdiction." Concerning the recommendation to strengthen
the regulations, the department responds that it sees no reason to exclude
manufactured housing as a potential residence for four individuals when all
applicable
Life Safety Code
requirements are
met as verified in accordance with provisions in §419.678 of this rule
(relating to Department Approval of Residences).
A commenter questioned the inclusion of the term "subcontractor" at principle
42 of the "Provider "Principles" that requires the program provider to ensure
that direct service provision is managed and supervised by an employee or
subcontractor with at least three years experience in planning and providing
services to people with mental retardation or other developmental disabilities.
The commenter stated that a subcontractors who provides a specific service
to an individual may lack the required experience although the subcontracted
service is the most appropriate for an individual. The department explains
that the principle does not refer to contractors engaged by a program provider
to provide a specific service component (such as day habilitation) to an individual.
As written, the principle requires the program provider to either employ or
contract with a specific individual to direct and supervise the provision
of direct services. That person is responsible for providing supervision and
guidance to employees or to subcontractors who provide direct services. The
department has clarified the principle to state that the program provider
will "employee or contract with a person" having the required qualifications
"to oversee the provision of direct services to individuals."
One commenter pointed out the absence of "Program Provider" principles
which ensure that consumers live in well-maintained, attractive, or "normalized
environments" that are not crowded or impersonal. The commenter recommended
such requirements be added and pointed out that program providers must be
found in compliance with the principles unless environmental conditions present
a "real hazard." The department appreciates the commenter's concerns but declines
to include the recommend revisions at this time because a task force is currently
reviewing all program principles to determine necessary revisions.
Regarding the principle A5.1 of the "Authority Principles," two commenters
requested the LAR be referenced with regard to meeting the desires and needs
of the individual. The department responds that the person-directed planning
process focuses on identifying outcomes to be achieved for an individual rather
than those of the individual's LAR. The department recognizes the role of
the LAR in identifying outcomes for an individual and has revised the principle
to indicate that the person-directed planning process includes consideration
of the desires and needs as identified by the individual or the individual's
LAR.
Two commenters suggested that provisions at principle 5.10 of the "Authority
Principles" requiring the MRA's assurance that children live in a family environment
such as with an adoptive or foster family may not always meet the needs of
the individual and recommended that the LAR rather than the service coordinator
determine that such an arrangement best meets the individual's needs. The
department replies that this provision is responsive to the TDMHMR Board's
stated value that all children should have the opportunity to live in a stable
family environment. The department explains that the principle directs the
service coordinator to ensure that all options are presented for the consideration
of a minor child's LAR.
Two commenters requested the language at principle 11 of the "Authority
Principles" be revised to state that the MRA initiate a person-directed planning
process for each individual "or LAR" to determine the supports and services
necessary for an individual to continue to live in the community. The department
declines to make the requested revision and responds that provisions at §409.525(a)(3)
require the participation of an individual's LAR in the development of the
person-directed plan. The department adds that the purpose of the plan is
to direct supports and services to preserve the individual's ability to remain
in a community setting.
Two commenters recommended that principle 13 of the "Authority Principles"
be revised to include reference to the selection of an MRLA program provider
by an individual's LAR. The department agrees with the recommendation and
has revised the principle accordingly.
With regard to principle 29 of the "Authority Principles" addressing the
program provider's responsibility to advise individuals of charges it may
assess against the individual's personal funds, two commenters recommended
that requirements for advising an individual's LAR of such charges also be
included. The department agrees and has revised the principle as recommended.
The amendments are adopted under the Texas Health and Safety
Code, §532.015(a), which provides the Texas Board of Mental Health and
Mental Retardation 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 delegated to the department the authority to operate the MRLA program.
§409.503.Service Components of the MRLA Program.
(a)
Service Coordination Case management as defined in §412.453
of this title (relating to Definitions) is not a reimbursable service under
the MRLA program. Service coordination must be provided to all enrolled individuals
in the MRLA program by the local mental retardation authority (MRA) and is
reimbursed in accordance with 1 TAC §355.743 of this title (relating
to Reimbursement Methodology for Service Coordination).
(b)
MRLA program service components are selected for inclusion
in a person's Individual Plan of Care (IPC) to supplement rather than replace
that individual's natural community supports. MRLA program service components
are selected based on assessments which identify specific services and supports
necessary for the individual to continue living in the community, assure the
individual's health and welfare in the community, and prevent the individual's
admission to institutional services. The following service components are
available to all individuals enrolled in the MRLA program, unless indicated
otherwise:
(1)
Counseling and therapies, consisting of physical therapy,
occupational therapy, speech and language pathology, audiology, social work,
psychology, and dietary services.
(2)
Nursing care provided by licensed nurses.
(3)
Residential assistance in the individual's residence
does not include room and board and may be provided in accordance with the
IPC in one of the following four ways:
(A)
supported home living for individuals who are living in
their own homes or the homes of their natural or adoptive families;
(B)
foster/companion care for individuals who are living in
the home of a MRLA foster family provider or with a paid companion;
(C)
supervised living for individuals who reside in homes where
paid staff of the program provider provide services and supports as needed
by individuals and are present in the home and able to provide assistance
during normal sleeping hours; and
(D)
residential support for individuals who reside in homes
where paid staff of the program provider provide assistance on a scheduled
shift basis and are present and awake at all times individuals are present
in the home.
(4)
Day habilitation must be provided separately
from services funded by any other source including, but not limited to, public
educational services, rehabilitative services for persons with mental illness,
programs funded by the Texas Department of Human Services (TDHS), or programs
funded by a state rehabilitation agency.
(5)
Supported employment is provided in conjunction with
day habilitation and is paid for up to an IPC year (defined by the begin and
end dates of the plan) maximum of 150 hourly units per individual when documentation
verifies that supported employment services have been denied or are otherwise
unavailable to the individual through either the state rehabilitation agency
or the public educational agency.
(6)
Adaptive aids may be provided up to a maximum of $10,000
per IPC year per individual.
(7)
Minor home modifications may be provided up to a life-time
limit of $7,500 per individual. After the $7,500 limit has been reached, persons
are eligible for up to an additional $300 per IPC year for additional modifications
or maintenance of home modifications.
(8)
Dental services may be provided up to a maximum of
$1,000 per individual per IPC year.
(9)
Respite care may be provided for individuals who are
living in the homes of their natural or adoptive family. Respite care is not
a reimbursable service for individuals who are receiving MRLA foster/companion
care, supervised living, or residential support. Reimbursement for respite
care provided in a setting other than the individual's residence includes
payment for room and board. The maximum annual reimbursement per IPC year
is equal to 30 multiplied by the daily reimbursement rate for respite care.
(c)
A program provider must retain in an individual's record
the results and recommendations of individualized assessments documenting
a current need for each service component included in the IPC. IPCs must be
developed and updated in accordance with person-directed planning principles
and with §409.505 of this title (relating to Eligibility Criteria).
(d)
The department will specify, through the MRLA automated
enrollment and billing system, the counties the program provider is authorized
to serve pursuant to each waiver program provider agreement. The counties
specified for a single provider agreement must be contiguous. The program
provider may enter into more than one provider agreement to provide MRLA program
services, but may have only one provider agreement to provide MRLA program
services per county.
§409.507.Level of Need Assignment.
(a)
A LON for an individual must be requested by the MRA from
the department by electronically transmitting a completed MR/RC Assessment
indicating the recommended LON.
(b)
Documentation supporting the recommended LON must be maintained
in the individual's record. Such documentation may include but is not limited
to the individual's PDP, including the deliberations and conclusions of the
individual's service planning team, the individual's ICAP assessment booklet,
assessments and interventions by qualified professionals, behavioral intervention
plans, and time sheets of program provider staff.
(c)
The department will assign a LON to an individual based
on the individual's ICAP service level score, information reported on the
individual's MR/RC Assessment, and required supporting documentation. Documentation
supporting a recommended LON must be submitted to the department by the MRA
in accordance with department guidelines.
(d)
The department will assign one of five LONs as follows:
(1)
An intermittent LON (LON 1) will be assigned if the individual's
ICAP service level score equals 7, 8 or 9.
(2)
A limited LON (LON 5) will be assigned if the individual's
ICAP service level score equals 4, 5 or 6.
(3)
An extensive LON (LON 8) will be assigned if the individual's
ICAP service level score equals 2 or 3.
(4)
A pervasive LON (LON 6) will be assigned if the individual's
ICAP service level score equals 1.
(5)
Regardless of an individual's ICAP service level score,
a pervasive plus LON (LON 9) will be assigned if the individual meets the
criteria set forth in subsection (f) of this section.
(e)
A LON 1, 5, or 8, determined in accordance with subsection
(d) of this section, will be increased to the next LON by TDMHMR due to an
individual's dangerous behavior, if supporting documentation submitted to
the department proves that:
(1)
the individual exhibits dangerous behavior that could cause
serious physical injury to the individual or others;
(2)
a written behavior intervention plan has been implemented
that meets department guidelines and is based on ongoing written data, targets
the dangerous behavior with individualized objectives, and specifies intervention
procedures to be followed when the behavior occurs;
(3)
more staff members are needed and available than would
be needed if the individual did not exhibit dangerous behavior;
(4)
staff members are constantly prepared to physically
prevent the dangerous behavior or intervene when the behavior occurs; and
(5)
the individual's MR/RC Assessment is correctly scored
with a "1" in the "Behavior" section.
(f)
A LON 9 will be assigned by TDMHMR if supporting documentation
submitted by the MRA to TDMHMR proves that:
(1)
the individual exhibits extremely dangerous behavior that
could be life threatening to the individual or to others;
(2)
a written behavior intervention plan has been implemented
that meets department guidelines and is based on ongoing written data, targets
the extremely dangerous behavior with individualized objectives, and specifies
intervention procedures to be followed when the behavior occurs;
(3)
management of the individual's behavior requires a
staff member to exclusively and constantly supervise the individual during
the individual's waking hours, which must be at least 16 hours per day;
(4)
the staff member assigned to supervise the individual
has no other duties during such assignment; and
(5)
the individual's MR/RC Assessment is correctly scored
with a "2" in the "Behavior" section.
§409.511.TDMHMR Review of Level of Need and Individual Plan of Care.
(a)
TDMHMR may conduct a utilization review prior to authorization
of MRLA program reimbursement in any circumstance, including, but not limited
to, the following:
(1)
the MRA submits an initial, revised, or renewal IPC having
an annual cost exceeding 100% of the estimated annualized average per capita
cost for ICF/MR services;
(2)
the MRA reports an increase in an individual's LON
either at the time of the annual eligibility reevaluation or at any other
time;
(3)
the MRA reports that the individual's LON is 9 (Pervasive
Plus); or
(4)
the MRA reports a LON for the individual which appears
inconsistent with other clinical or service provision evidence/history about
the individual.
(b)
TDMHMR may approve reimbursement in the circumstances described
in subsection (a) of this section when TDMHMR determines that documentation
submitted by the MRA in accordance with department guidelines supports the
request.
(1)
The MRA must submit documentation that demonstrates the
following, as appropriate:
(A)
the IPC services proposed for the individual are derived
from assessments of the individual's needs, are necessary to prevent the individual
from being institutionalized, are necessary to assure the individual's health
and welfare in the community, and supplement rather than replace the individual's
natural community supports; and
(B)
the recommended LON assignment reflects the individual's
current service level need which is expected to continue for at least 12 months.
(2)
Information submitted to TDMHMR by the MRA must
include the PDP containing the service planning team deliberations and conclusions
justifying the services included on the recommended IPC and, as applicable:
(A)
documentation of assessments or interventions by qualified
psychologists or other professional staff/consultants;
(B)
staff requirements to conduct behavioral intervention plans;
(C)
medical and physical assessment results and recommendations;
(D)
time sheets of assigned service providers; and
(E)
any other documentation providing support of the LON assignment
or the level or type of IPC services.
(3)
TDMHMR will notify the MRA and the program provider
of the approval or disapproval of the requested LON or the level or type of
IPC services. TDMHMR will establish the effective date of approved requests.
If additional documentation is requested by TDMHMR, the program provider must
assist the MRA in providing the requested information to the MRA within five
working days of receipt of the request.
(c)
The program provider may request a reconsideration of TDMHMR's
decision by submitting a written request to TDMHMR, office of Medicaid Administration,
within 10 days of the date of notification of the department's decision. The
request will be considered and the program provider will be notified in writing
of the results of TDMHMR's reconsideration within 10 working days of receipt
of the request.
(d)
TDMHMR will conduct periodic retrospective reviews. Based
on such reviews, TDMHMR may recoup or deny payment to a program provider.
Payments may be recouped from the effective date of the level of care assessment
form.
§409.519.Calculation of Co-payment.
(a)
Individuals and eligible couples determined to be financially
eligible based on the special institutional income limit may be required to
share in the cost of MRLA Program services. The method for determining the
individual's or couple's co-payment is described in subsections (b) and (c)
of this section and documented on the Texas Department of Human Services (TDHS)
Medical Assistance Only Worksheet.
(b)
The co-payment amount as determined by TDHS is the individual's
or couple's remaining income after all allowable expenses have been deducted.
The co-payment amount is applied only to the cost of home and community-based
services funded through the MRLA Program and specified on each individual's
IPC. The co-payment must not exceed the cost of services actually delivered.
The co-payment must be paid by the individual or couple, authorized representative,
or trustee directly to the program provider in accordance with the TDHS determination.
When calculating the co-payment amount for individuals or couples with incomes
that exceed the maximum Personal Needs Allowance the following are deducted:
(1)
the cost of the individual's or couple's maintenance needs
which must be equivalent to the special institutional income limit for eligibility
under the Texas Medicaid program;
(2)
the cost of the maintenance needs of the individual's
or couple's dependent children. This amount is equivalent to the TANF basic
monthly grant for children or a spouse with children, using the recognizable
needs amounts in the TANF Budgetary Allowances Chart; and
(3)
the costs incurred for medical or remedial care which
are necessary but are not subject to payment by Medicare, Medicaid, or any
other third party. These include the cost of health insurance premiums, deductibles,
and co-insurance.
(c)
When calculating the co-payment amount for individuals
with community spouses, the Texas Department of Human Services determines
the amount of the recipient's income applicable to payment in accordance with §1924
of the Social Security Act and 42 CFR 435.726.
§409.523.Maintenance of MRLA Program Waiting List.
The local MRA will maintain an up-to-date waiting list of individuals
living in and waiting to receive MRLA Program services in the MRA's local
service area.
(1)
The MRA will register the individual on the waiting list
chronologically by date of request for MRLA Program services.
(2)
The MRA will provide written notification to MRLA
program providers in its local service area of the process that program providers
should use to refer individuals who wish to be placed on the MRLA Program
referral list.
(3)
The MRA must remove an individual's name from the
waiting list only when it is documented that:
(A)
written permission has been obtained from the individual
or the individual's legally authorized representative (LAR) to remove the
individual's name from the waiting list;
(B)
the individual is deceased;
(C)
the individual does not reside in the local service area;
(D)
TDMHMR has denied the individual's enrollment and the individual
or the LAR has had an opportunity to exercise the individual's right to appeal
the decision according to §409.505 of this title (relating to Eligibility
Criteria);
(E)
the individual's name has been transferred in accordance
with paragraph (4) of this section;
(F)
the individual or the individual's LAR has not responded
to the MRA's notification of a program vacancy within 60 calendar days of
the date of the MRA's notification;
(G)
the applicant or the applicant's LAR chooses participation
in the ICF/MR Program instead of in the MRLA Program when offered this choice
in accordance with §419.164(a) of this title (relating to Process for
Enrollment of Applicants) or;
(H)
the applicant or the applicant's LAR refuses MRLA services.
(4)
At the written request of an individual or the
LAR of an individual who moves to the local service area of a different MRA,
the original MRA will transfer the individual's name and date of request for
MRLA Program services to the MRA in the local service area where the individual
has moved. The MRA receiving the information will add the individual's name
to its waiting list using the date of the request for MRLA Program services
provided by the transferring MRA.
§409.525.Process for Referral and Enrollment of Individuals.
(a)
An individual or an individual's LAR on behalf of the individual
who seeks MRLA Program services must submit a written request to the MRA serving
the area where the individual lives.
(1)
The MRA will register the individual on the MRA's waiting
list as specified in §409.523 of this title (relating to Maintenance
of MRLA Program Waiting List).
(2)
Upon written notification by TDMHMR of a program vacancy
in the MRA's local service area, the MRA notifies the first individual on
the waiting list of the vacancy and begins the enrollment process by informing
the individual or the LAR of the individual's right to choose between participation
in the ICF-MR Program in a state school setting or community-based setting,
the MRLA Program, or other services. The MRA must document the individual's
or the LAR's choice of services.
(3)
If the individual or the LAR chooses participation
in the MRLA Program, the MRA will assign a service coordinator who will develop,
in conjunction with the service planning team (including the individual and
the LAR), a person-directed plan (PDP). At a minimum, the PDP must include
the following:
(A)
a description of the services and supports the individual
requires to continue living in the community;
(B)
a description of the individual's current services and
supports, identifying those that will be available if the individual is enrolled
in the MRLA Program;
(C)
a description of individual outcomes to be achieved through
MRLA Program service components and justification for each service component
to be included in the IPC;
(D)
documentation that the type and amount of each service
component included in the individual's IPC:
(i)
are necessary for the individual to live in the community,
to ensure the individual's health and welfare in the community, and to prevent
the need for institutional services;
(ii)
do not replace existing natural supports or other non-program
sources for the service components; and
(iii)
when the proposed IPC includes residential support, the
reasons the team concluded that supervision and assistance from awake service
providers are required during normal sleeping hours to assure the individual's
health and welfare including but not limited to the individual's demonstrated
needs for staff intervention to respond to the individual's medical condition,
a behavior displayed by the individual that poses a danger to the individual
or to others, or the individual's need for assistance with activities of daily
living during normal sleeping hours;
(E)
description of all determinations needed to establish the
individual's eligibility for SSI or Medicaid benefits and for an ICF-MR level-of-care
(LOC); and
(F)
description of actions and methods to be used to reach
identified service outcomes, projected completion dates, and person(s) responsible
for completion.
(4)
The MRA compiles and maintains information necessary
to process the individual's or LAR's request for enrollment in the MRLA Program.
(A)
If the individual's financial eligibility for the MRLA
Program must be established, the MRA will initiate, monitor, and support the
processes necessary to obtain a financial eligibility determination.
(B)
The MRA will complete a MR/RC Assessment if necessary.
(i)
The MRA will determine or validate a determination that
the applicant has mental retardation in accordance with Chapter 405, Subchapter
D of this title (relating to Determination of Mental Retardation and Appropriateness
for Admission to Mental Retardation Services); or
(ii)
The MRA will verify that the individual has been diagnosed
by a licensed physician as having a related condition as defined in §406.202
of this title (relating to Definitions); and
(iii)
The MRA will administer the
Inventory for Client and Agency Planning
(ICAP) and recommend an LON
assignment to TDMHMR in accordance with §409.507 of this title (relating
to Level of Need Assignment).
(C)
The MRA will develop a proposed IPC with the individual
or the LAR based on the PDP and §409.503(b) of this title (relating to
Service Components of the MRLA Program).
(5)
The service coordinator will inform the individual
or the LAR of all available MRLA program providers in the local service area.
The service coordinator will:
(A)
provide information to the individual or the LAR regarding
all MRLA program providers in the MRA's local service area;
(B)
review the proposed IPC with potential MRLA program providers
selected by the individual or the LAR;
(C)
arrange for meetings/visits with potential MRLA program
providers as desired by the individual or the LAR;
(D)
assure that the individual's or LAR's choice of a MRLA
program provider is documented, signed by the individual or the LAR, and retained
by the MRA in the individual's record; and
(E)
negotiate/finalize the proposed IPC with the selected MRLA
program provider.
(b)
When the selected MRLA program provider has agreed to deliver
the services delineated on the IPC, the MRA will transmit the enrollment information
to TDMHMR. TDMHMR will notify the individual or the LAR, the selected MRLA
program provider, and the MRA of its approval or denial of the individual's
MRLA Program enrollment.
(c)
The selected MRLA program provider will not initiate services
until notified of TDMHMR's enrollment approval.
§409.530.Provider Reimbursement.
(a)
The department will pay the program provider for service
components as follows:
(1)
supported home living, counseling and therapies, nursing,
respite care, and supported employment are paid for in accordance with the
reimbursement rate for the specific service component;
(2)
MRLA foster/companion care, supervised living, residential
support, and day habilitation are paid for in accordance with the individual's
LON and the reimbursement rate for the specific service component; and
(3)
adaptive aids, minor home modifications, and dental
services are paid for based on the actual cost of the item.
(b)
The program provider must accept the department's payment
for a service component as payment in full for the service component.
(c)
If the program provider disagrees with the enrollment date
of an individual as determined by TDMHMR, the program provider must notify
the MRA and TDMHMR in writing of its disagreement, including the reasons for
the disagreement, within 180 days after the end of the month in which the
provider receives the enrollment letter. If the program provider disagrees
with an enrollment date of which the program provider received notice prior
to March 1, 2000, the program provider must notify the MRA and TDMHMR in writing
of its disagreement, including the reasons for the disagreement, by September
1, 2000. The department will review the information submitted by the program
provider and notify the program provider of its determination regarding the
individual's enrollment date.
(d)
The program provider must prepare and submit claims for
service components in accordance with this subchapter, the Waiver Program
Provider Agreement and the
MRLA Service Definitions
and Billing Guidelines
.
(e)
The program provider must submit an initial claim for a
service component as follows:
(1)
day habilitation, MRLA foster/companion care, supported
home living, supervised living, residential support, respite care, supported
employment, counseling and therapies, and nursing must be electronically transmitted
to the department via the MRLA automated enrollment and billing system; and
(2)
adaptive aids, minor home modifications, and dental
services must be submitted in writing to TDMHMR for entry into the automated
enrollment and billing system.
(f)
The program provider must submit a claim for a service
component to TDMHMR by the latest of the following dates:
(1)
within 95 calendar days after the end of the month in which
the service component was provided;
(2)
within 45 calendar days after the date of the enrollment
approval letter issued by TDMHMR.
(3)
within 95 calendar days after the end of the month
in which the program provider obtains from the service coordinator a dated
response from a source other than the MRLA Program to a timely request for
payment for the service component.
(g)
If an individual is temporarily or permanently discharged
from the MRLA program:
(1)
the program provider may submit a claim for day habilitation,
supported home living, respite care, supported employment, counseling and
therapies, and nursing for the day of the individual's discharge; and
(2)
the program provider must not submit a claim for MRLA
foster/companion care, supervised living, or residential support for the day
of the individual's discharge.
(h)
If TDMHMR rejects a claim for adaptive aids, minor home
modifications, or dental services, the program provider may submit a corrected
claim to TDMHMR. The corrected claim must be received by TDMHMR within 180
days after the end of the month in which the service component was provided
or within 45 days after the date of the notification of the rejected claim,
whichever is later.
(i)
If the program provider submits a claim for an adaptive
aid or dental services, the program provider's claim must be accompanied by
written verification obtained from the MRA that sources of payment other than
the MRLA program for which the individual may be eligible to receive services,
including Medicare, Medicaid (such as Texas Health Steps and Home Health),
Texas Rehabilitation Commission, the public school system, and private insurance,
denied the submitted claim.
(j)
If the program provider submits a claim for an adaptive
aid that costs $500 or more or for a minor home modification that costs $1,000
or more, the program provider must submit an individualized assessment conducted
by a professional qualified to assess whether the aid or modification is necessary
and appropriate to address the individual's needs.
(k)
The department will not pay the program provider for a
service component or will recoup any payments made to the program provider
for a service component if:
(1)
the individual receiving the service component is, at the
time the service component was provided, ineligible for the MRLA program or
Medicaid benefits, or was an inpatient of a hospital, nursing facility, or
ICF-MR;
(2)
the service component is not included on the signed
and dated IPC of the individual in effect at the time the service component
was provided;
(3)
the service component provided does not meet the service
definition in, or is not provided in accordance with, the
MRLA Service Definitions and Billing Guidelines
;
(4)
the program provider provides the supervised living
or residential support service component in a residence in which four individuals
or other persons receiving similar services live without the approval of the
department or the department's designee as required in §409.542 of this
title (relating to TDMHMR Approval of Residences);
(5)
the service component is not documented in accordance
with the
MRLA Service Definitions and Billing Guidelines
;
(6)
the claim for the service component is not prepared
and submitted in accordance with the
MRLA Service
Definitions and Billing Guidelines
;
(7)
an individualized assessment as required by subsection
(j) of this section is not submitted by the program provider;
(8)
the service component is provided by a service provider
who does not meet the qualifications to provide the service component as delineated
in the
MRLA Service Definitions and Billing Guidelines
;
(9)
the service component is not provided in accordance
with a signed and dated IPC meeting the requirements set forth in §409.525
and §409.527 of this title (relating to Process for Referral and Enrollment
of Individuals and Revisions and Renewals of Individual Plans of Care (IPCs),
Levels of Care (LOCs) and Levels of Need (LONs) for Enrolled Individuals,
respectively);
(10)
the service component is not provided in accordance
with the plan for services described in the individual's PDP;
(11)
the service component of foster/companion care, residential
support, or supervised living is provided on the day of the individual's temporary
or permanent discharge from the MRLA program; or
(12)
the service component is provided prior to the individual's
enrollment date into the MRLA program.
(l)
The program provider must keep any records necessary to
disclose the extent of the service components provided by the program provider
and, on request, provide TDMHMR any such records and any information regarding
claims filed by the program provider.
(m)
The program provider must refund to TDMHMR any overpayment
made to the program provider within 60 days after the program provider's discovery
of the overpayment or receipt of a notice of such discovery from the department,
whichever is earlier.
(n)
The program provider may not claim reimbursement of administrative
fees for a month in which a service component is not provided to an individual.
(o)
Payments by TDMHMR to a program provider will not be withheld
in the event the MRA erroneously fails to submit an enrolled individual's
IPC for renewal and the program provider continues to provide services in
accordance with the most recent IPC as approved by TDMHMR.
§409.531.Certification Status.
(a)
MRLA program providers contracting with TDMHMR for participation
in the MRLA Program must be in continuous compliance with the MRLA Program
Principles for Program Providers as described in Mental Retardation Local
Authority Program Principles for Program Providers. Each MRLA program provider
participating in the MRLA Program will receive a certification review conducted
by TDMHMR or its designee at least annually in order to maintain certification
status.
Figure: 25 TAC §409.531(a)
(1)
TDMHMR personnel will conduct all certification reviews
of MRLA program providers operated by the local MRA.
(2)
TDMHMR or its designee will conduct all certification
reviews of non-MRA operated program providers.
(b)
Certification review corrective actions required from the
program provider as determined by prior reviews under the HCS or MRLA Consumer
Principles for Certification and related timelines remain in effect until
the first certification review as an MRLA program provider.
§409.541.Compliance with MRLA Program Principles for Mental Retardation Authorities (MRAs).
(a)
MRAs participating in the MRLA Program must be in continuous
compliance with the MRLA Program Principles for Authorities as described in
Mental Retardation Local Authority Program Principles for Mental Retardation
Authority.
Figure: 25 TAC §409.541(a)
(b)
Each MRA participating in the MRLA Program will receive
a compliance review conducted by TDMHMR at least annually.
(c)
If any item of noncompliance remains uncorrected by the
MRA at the time of the review exit conference, the MRA will develop a plan
of correction, with timelines, to be implemented after approval by TDMHMR.
TDMHMR may take action as specified in the performance contract between the
local MRA and TDMHMR if the MRA fails to develop or implement an approved
plan of correction.
§409.542.TDMHMR Approval of Residences.
(a)
The program provider must request and obtain TDMHMR's or
its designee's approval of a residence in which four individuals receiving
MRLA services or other persons receiving similar services will live.
(b)
To receive approval of a residence described in subsection
(a) of this section in which a maximum of four individuals or other persons
receiving similar services will live and at least one individual will receive
residential support, the program provider must submit the following documentation
for review:
(1)
the address of the residence at which the program provider
intends to provide residential support;
(2)
written certification from the program provider that
the program provider is providing or intends to provide residential support
for one or more individuals who will live in the residence;
(3)
written certification by the fire safety authority
having jurisdiction for the location for the residence (e.g., local fire marshal
or building official) that, based upon inspection of the residence, the residence
complies with the provisions of P33 of the MRLA Program Principles for Program
Providers;
(4)
written certification from the program provider that
the residence to be approved is not the residence of any direct service provider.
(c)
Pending the department's or the designee's receipt of documentation
of the certification inspection required by subsection (b)(3) of this section,
the department or the department's designee may grant temporary approval of
a residence described in subsection (a) of this section if the program provider
submits the documentation required by subsection (b)(1), (2), and 4) of this
section and the following dated documentation to the department or the department's
designee:
(1)
a copy of the Contractor's Material and Test Certificate
for Above Ground Piping (Form 85A) and the Contractor's Material and Test
Certification for Underground Piping (Form 85B) as issued by the Texas State
Fire Marshal's Office certifying the automatic fire sprinkler system complies
with minimum installation requirements signed by an installer licensed by
the State of Texas or documentation evidencing a "prompt" evacuation capability,
as defined in the NFPA 101
Life Safety Code
;
(2)
a copy of the Fire Alarm Installation Certificate
(Form FML009) certifying the fire alarm system complies with minimum installation
requirements and applicable provisions of the NFPA 101
Life Safety Code
signed by an installer licensed by the State of Texas;
(3)
a copy of the written correspondence from the fire
safety authority having jurisdiction for the location of the residence that
an inspection of the residence by that authority will be conducted within
30 calendar days of the effective date of the department's approval of the
residence as established in accordance with subsection (e) of this section;
and
(4)
written certification from the program provider that
all other NFPA 101
Life Safety Code
requirements
applicable to the residence have been met.
(d)
Temporary approval granted in accordance with subsection
(c) of this section:
(1)
is effective as of the date of the latest date of the documentation
specified in subsection (c)(1)-(4) of this section; and
(2)
expires 45 calendar days from the effective date of
the temporary approval or on the date the department approves the residence
based on the program provider's submission of the written certification required
in subsection (b)(3) of this section, whichever is earlier.
(e)
Services in a residence described in subsection (a) of
this section may not be initiated until the program provider has met the provisions
of subsections (c) or (d) of this section.
(f)
The department or the department's designee notifies the
program provider within 10 working days of receipt of the receipt of the documentation
specified in subsection (b) or (c) of this section.
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 February 7, 2000.
TRD-200000944
Charles Cooper
Chair, Texas MHMR Board
Texas Department of Mental Health and Mental Retardation
Effective date: March 1, 2000
Proposal publication date: October 1, 1999
For further information, please call: (512) 206-5232
25 TAC §§409.507, 409.519, 409.521
The Texas Department of Mental Health and Mental Retardation
(department) adopts the repeals of §§409.507, 409.519, and 409.521
of Chapter 409, Subchapter L, concerning mental retardation local authority
(MRLA) program, without changes to the text as published in the October 1,
1999, issue of the
Texas Register
(24 TexReg
8471).
Provisions of §409.507 which address level of need assignment have
been revised and incorporated into new §409.507, while those provisions
of the repealed section concerning MRLA provider payments are revised and
incorporated into new §409.530. The information in §409.519 has
been reorganized, clarified, and updated in new §409.519. New §§409.507, §409.519,
and 409.530 are proposed for public review and comment in this issue of the
No comments were received concerning the proposed repeal.
The repeals are adopted under the Texas Health and Safety Code, §532.015(a),
which provides the Texas Board of Mental Health and Mental Retardation 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 delegated to the department the authority to operate the MRLA 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 February 7, 2000.
TRD-200000948
Charles Cooper
Chair, Texas MHMR Board
Texas Department of Mental Health and Mental Retardation
Effective date: March 1, 2000
Proposal publication date: October 1, 1999
For further information, please call: (512) 206-5232
Subchapter D. HOME AND COMMUNITY-BASED SERVICES (HCS) PROGRAM
25 TAC §§419.151 - 419.166, 419.169 - 419.182
The Texas Department of Mental Health and Mental Retardation
(department) adopts new §§419.153-419.154, 419.156-419.158, 419.161,
419.164-419.166, 419.169, 419.172-419.180, and 419.182 of new Chapter 419,
Subchapter D, concerning home and community-based services (HCS) program with
changes to the text as published in the October 1, 1999, issue of the
The new subchapter replaces existing Chapter 409, Subchapter D, concerning
home and community-based services (HCS), the repeal of which is adopted contemporaneously
in this issue of the
Texas Register
. The new
subchapter is part of a comprehensive reorganization of chapters and subchapters
within the department's portion of the Texas Administrative Code in conjunction
with the sunset review of agency rules required by Texas Government Code, §2001.039
(as added by Senate Bill 178, Section 1.11, 76th Legislature).
Included in the new subchapter are provisions that are responsive to the
76th Legislature's direction to reduce the average cost of HCS services during
the current biennium (Appropriations Act, Article II, Texas Department of
Mental Health and Mental Retardation, Rider 7, page II-73). The department's
appropriation included funding for those individuals currently receiving HCS
program services, with the requirement that the average monthly expenditure
per individual be reduced to $3,846 from the FY 1999 figure of $4,000-$4,206.
The legislature further directed that in order for the department to increase
the number of individuals receiving HCS program services, the average monthly
expenditure per individual must be further reduced to $3,706 by the end of
FY 2000 and to $3,511 by the end of FY 2001.
In the spring and summer of 1998, the department developed its legislative
appropriation request for the 2000-2001 biennium. An analysis by department
staff of cost trends in the HCS program projected a budget deficit based on
the number of individuals expected to be enrolled. The Texas MHMR Board decided
to request additional funding to cover the anticipated increased cost, and
approved a plan to begin to reduce the HCS program waiting list. To obtain
input for the development of a plan to achieve cost savings in the HCS program
and to assure an appropriate level of services for individuals, the commissioner
charged a workgroup with studying the utilization of HCS and Intermediate
Care Facilities for Persons with Mental Retardation (ICF/MR) resources and
making recommendations regarding the future of these two Medicaid programs.
The workgroup was composed of individuals, family members, advocates, program
providers, and staff from local mental retardation authorities (MRAs) and
presented its final report to the board in March 1999.
The department's plan for improving the cost effectiveness of the HCS and
ICF/MR programs was discussed with legislative representatives during the
76th legislative session. Many of the questions asked during budget hearings
involved the high cost of three-person HCS program group homes compared to
small ICF/MR group homes. After the appropriation was known the department
immediately began to develop proposed changes that would implement the recommendations
from the workgroup and allow the department to continue to provide services
within the appropriated funds. The changes proposed in this new subchapter
have been carefully developed to safeguard the HCS program for those individuals
currently receiving services and those who are waiting for services. The department's
vision of a system of community-based services and supports that is affordable,
flexible, and consumer-driven is reflected in the new subchapter.
Provisions from the old subchapter have been revised and extensively reorganized
in the new subchapter and new requirements have been added, including a fundamental
change in the process for the initial enrollment of individuals in the HCS
program. The role of local MRAs is expanded to include responsibility for
developing an individual's initial person-directed plan and recommending an
individual's level of care, level of need, and initial plan of care to the
department for approval. Currently, HCS program providers are responsible
for completing these initial enrollment activities.
The new subchapter also describes a fundamental change in the provision
of residential support in the HCS program. Under the current rules, no more
than three individuals receiving HCS services or similar services for which
the service provider is reimbursed may live in a residence at any one time.
The new subchapter permits up to four individuals receiving HCS services to
live in a single residence if at least one individual requires supervision
and assistance from a service provider who is present and awake when that
individual is in the residence -- including during normal sleeping hours --
to assure the individual's health and safety. The new subchapter redefines
the residential support component to specify that service providers must be
present and awake in a residence at all times an individual is present in
the residence. A new service component -- supervised living -- is defined
to include residential assistance provided to individuals who do not routinely
require supervision or assistance from staff who are awake during normal sleeping
hours.
The provider sanctions process is revised in the new subchapter to reduce
the levels of sanctions from three to two levels, revise the criteria for
application of program provider sanctions, and reduce the number of follow-up
visits conducted by the department prior to placing a program provider on
vendor hold.
The HCS Consumer Principles for Evidentiary Certification have been incorporated
into the subchapter as §419.172-419.178. The principles have been revised
to conform to the format and style requirements of the
Texas Register
and to incorporate minor clarifications to the existing
language. Principles have been added which relate to program provider operations,
including requirements to assure direct service delivery is supervised and
managed by an individual with previous experience in planning and delivering
services to the program population, requirements related to residential settings
serving four persons, and requirements related to alleged abuse, neglect,
and exploitation.
In addition, the new subchapter includes provider payment procedures and
limitations currently contained in the program billing guidelines, documentation
requirements for billing for minor home modifications, new procedures related
to disputed enrollment effective dates, requirements for reassessment of individuals'
level-of-need assignments, and requirements for approval of residences in
which four individuals will live.
Punctuation errors in the proposed text have been corrected throughout
the subchapter. In §419.153 the definition of ISP (individual service
plan) is revised to specify that the ISP also describes recommendations considered
by the interdisciplinary team. The definition of PDP (person-directed plan)
is revised to include reference to the involvement of an individual's legally
authorized representative (LAR) in establishing the outcomes identified in
the PDP. The definition of service coordinator is revised to specify that
a service coordinator assists an individual's LAR to access services on behalf
of the individual.
A revision to §419.154(c)(7) specifies that the maximum reimbursement
for supported employment is 150 units per year rather than $3,000 per year.
Section 419.156(b) is revised to clarify that the Texas Department of Human
Services determines if an individual is required to pay a co-payment for HCS
program services.
A provision is added in §419.157(b)(3) requiring the service planning
or interdisciplinary team to document that a service component specified on
the individual plan of care (IPC) is necessary to ensure an individual's health
and welfare in the community. Subsection (c)(1)-(2) of that same section is
revised to clarify who must sign the IPC, with language added in subsection
(c)(1) specifying that the services recommended by the team are necessary
for the individual to live in the community. Language is added in subsection
(e) specifying that individualized assessments must support rather than document
the individual's need for the services included in an individual's IPC.
Section 419.158(a) is revised to clarify that the department may review
documentation supporting the services included in an individual's IPC and
that the program provider must submit such documentation as requested by the
department.
Revisions to §419.161 clarify that documentation supporting a recommended
level of need (LON) meeting the criteria in §419.162(b) must be submitted
along with the electronic submission of the MR/RC Assessment.
Language is added in §419.164(a) specifying that the MRA must assist
the LAR of an applicant when program services are desired and inform applicants
or their LARs that, when choosing between ICF/MR services and HCS services,
the applicant or LAR is made aware that the choice includes ICF/MR services
in a state school or community-based setting, as well as other services, and
to indicate that, as a service planning team member, the LAR acts on behalf
of the applicant. Revisions are made to §419.164(a)(3)(C)(iii) to include
examples of individual characteristics that may support an individual's need
for the residential support service component. Section 419.165(3)(F) is revised
to indicate that an individual's name may be removed from the HCS program
waiting list if either the individual or the individual's LAR does not respond
to the MRA's notification of a program vacancy. In §§419.165 and
419.166, the phrase "placement vacancy" is replaced by "program vacancy" to
reflect current department usage. Language is modified in §419.166(a)(2)(c)
to parallel §419.164(a)(3)(C)(iii) regarding an individual's need for
the residential support component. Section 419.169 is revised to indicate
that fair hearings are available to individuals under the Chapter 419, Subchapter
G, concerning Medicaid Fair Hearings.
References to the HCS Billing and Payment Review Protocol have been removed
throughout §419.170. In addition, subsection (i) of the same section
is revised to require proof of the denial of claims for adaptive aids from
only those sources for which an individual may be eligible to receive services
and to require that the documentation of denial include evidence that the
request for payment submitted to another source was not only proper and timely
but also complete. Subsection (j) is revised to require that claims for adaptive
aids costing $500 or more or minor home modifications costing $1,000 or more
be supported by an individualized assessment conducted by a professional qualified
to asses whether the adaptive aid or home modification is appropriate to meet
an individual's specific needs. In the same section, subsections (k)(4) and
(5) are combined as revised subsection (k)(4) and new subsection (k)(5) permits
the department to deny or recover payment made to a program provider if a
provider serves four individuals living in the same residence without the
department's approval of the residence. Subsection (k)(8) is revised to clarify
that written documentation supporting the need for a minor home modification
or adaptive aid must conform to provisions of §419.170(j) to avoid denial
of a claim for these services. Subsection (k)(9) is revised to also indicate
the requirement that a denial of payment from another resource is based upon
a complete request, as well as one that is proper and timely, for payment
for the service component from another source.
Revisions to §419.172(3) and (4) and §419.173(a)(1) require the
program provider's recognition of the role of an individual's LAR in protecting
and exercising the individual's rights. In recognition of the role of MRAs
in completing the enrollment process for applicants, §419.174(1)and (2)
is revised to substitute "serve" for "enroll." In §419.174(35)(E), language
is added requiring that an individual's case manager must document an individual's
lack of progress as well as progress. Revisions made at §419.174(49)
require that supervised living providers are available to assist individuals
as needed during non-sleeping hours as well as being present in the residence
and able to respond during normal sleeping hours. In §419.174(50)(K)
and (52)(K), licensed nursing care is removed as an element covered by supervised
living and residential support, respectively. Language in §419.174(53)
is revised to clarify that, when four individuals live in the same residence,
residential support is justified and provided as specified on the IPC of at
least one of the four individuals.
The language of §419.175(a) is revised to indicate the program provider's
responsibility to assure its service system is responsive to the goals identified
by an individual's LAR on behalf of the individual. Language is added to §419.176(a)
specifying that program providers must submit a proposed permanent discharge
request to the department and to subsection (a)(3) to indicate that a discharge
plan may not be required if it is inappropriate to the circumstances of an
individual's recommended discharge from services, e.g., death of the individual.
The language of §419.177(f) is revised to clarify that the experience
requirements described in the subsection apply only to a person working for
the program provider and not to service providers engaged to provide a specific
service component to an individual.
Language is modified in §419.178(b) to state that the program provider's
service delivery system recognizes choices made by an individual's LAR on
the individual's behalf. In the same section, subsection (c) is revised to
clarify that the program provider's initial inspection of the residence of
an individual living outside the family home is conducted prior to the individual
receiving services in the residence and that the initial inspection and each
annual inspection is reviewed by the individual's IDT. Subsection (e) of this
section is modified to specify the
Life Safety Code
provisions a residence must satisfy if four individuals will live
and receive services in the residence and that the department must approve
the residence. Modifications are made to §419.178(f) to clarify that
the program provider's advisory committee meets at least quarterly and assists
the provider in completing the enumerated activities at least annually. Subsection
(j) of this section is revised to clarify that service provider personnel
report suspected abuse, neglect or exploitation, rather than reporting "allegations"
of such, as instructed. Subsection (k) is modified to require that program
providers take necessary actions if the provider suspects abuse, neglect,
or exploitation as well as when notified of such. Subsection (k)(3) of this
section is also modified to remove the reference to the program provider's
notification of an individual's "correspondent" of an allegation of abuse,
neglect, or exploitation. Subsection (m) of this section is revised to clarify
that posting of information regarding the program provider is required only
in residences in which the direct service provider or the program provider
holds a property interest. Subsection (n) of this section is revised to require
the program provider to notify an individual or an individual's LAR of the
completion of an investigation of abuse, neglect, or exploitation by Texas
Department of Protective and Regulatory Services. Subsection (w) of this section
is revised to require a program provider to notify an individual's LAR of
the individual's death within 24 hours when the provider believes the LAR
is unaware of the death.
In §419.179(a), the phrase "including all principles found out of
compliance in the previous review" is removed as redundant. Subsection (b)(3)
of this section is revised to be consistent with other portions of this section
regarding sanctions. Revisions are made at §419.179(b)(3) and (f) to
indicate that, when necessary, individuals receiving services are assisted
in relocation by the department in conjunction with the local MRA. Language
is added in §419.179(g) to define conditions that would represent a program
provider's "serious or pervasive" failure to comply with certification principles.
Extensive revisions to §419.182 clarify that residences must be approved
when a program provider proposes to serve four individuals in a single residence,
specify the written documentation that must be submitted to the department
for approval of the residence, add requirements and conditions under which
a temporary approval of such a residence may be made, set forth the timeframe
for notification of the department's approval, and specify the minimum provisions
that must be met prior to a program provider initiating services in the residence.
A public hearing was held on October 26, 1999, in Austin, to accept oral
and written testimony concerning the proposal. Some of those who testified
latter also submitted written comments. Comments were received from 41 family
members and/or guardians of individuals receiving HCS program services. Those
commenters are from Athens, Austin, El Lago, Henderson, Houston, Kilgore,
Longview, Marshall, The Woodlands, Tyler, and Clovis, N.M. Comments also were
submitted by the parent/guardian of an individual receiving community-based
ICF/MR program services, Austin; the parent/guardian of a state school resident,
Garland; and a special educator who also is the parent/ guardian of an individual
receiving community-based ICF/MR program services, Austin.
Comments were received from the Private Providers Association of Texas
(PPAT), Austin and from16 private providers of HCS program services: Ability
House, Corpus Christi; All The Little Things Count, Spring; American Habilitation
Services (AHS), Longview; Angel's Best, Friendswood; Bethesda Lutheran Homes &
Services, Cypress; Community Access, Inc., Tyler; Community Options, Inc.,
Austin; Concept Six, Austin; Educare, Austin; Empowerment Options, Inc., Austin;
Golden Rule Services, Inc., Friendswood; Residential Management Inc., San
Antonio; Vita-Living Inc., Houston; Volunteers of America, Arlington; and
Willand Incorporated, White Oak. Two advisory committees to private HCS providers
submitted written comments: Parent's Advisory Committee to All The Little
Things Count, Spring; and Willand Inc. Advisory Committee, White Oak.
Eight advocacy and consumer organizations submitted comments: Advocacy
Inc., Austin; Parent Association for the Retarded of Texas (PART), Austin;
Texas Advocates, Austin; Texas Association for Mental Retardation (TAMR),
Austin; Texans for Improvement of Long Term Care, Houston; Texas Respite Resource
Network, Austin; The Arc of Texas, Austin; and The Disability Policy Consortium,
Austin.
Five local mental retardation authorities/community centers submitted comments:
Central Plains Center, Plainview; Dallas Metrocare (formerly Dallas County
MHMR Center, Dallas; Denton County MHMR Center, Denton; LifePath Systems (formerly
Collin County MHMR), Allen; Tarrant County MHMR Center, MR Provider Services,
Fort Worth; Texana MHMR Center, Richmond. Comments also were received from
the Burnet County Mental Retardation Board, Marble Falls, an advisory committee
to Bluebonnet Trails MHMR Center.
The Texas Department of Human Services, Long Term Care Policy division,
also submitted comments.
Concerning the fiscal impact statement in the proposal preamble that projected
a savings to state government, a commenter questioned whether the department
had factored in the costs of additional staffing and complying with
Eighteen commenters stated that the department had failed to consider several
crucial factors when developing the statement in the proposal preamble that
no adverse economic effect on small business or micro businesses was anticipated
because the reimbursement rates will sufficiently compensate providers. Among
the crucial factors cited by the commenters were the expenses of complying
with
Life Safety Code
requirements, occupancy
issues, day habilitation, wage and hour issues, availability of an adequate
labor force for live-in staff, service coordination, breaking leases and finding
appropriate alternative housing, and the suspension of the annual inflationary
rate adjustments as prescribed in the current reimbursement methodology. Several
of the commenters stated that preliminary reimbursement rates shared by the
department with stakeholders are not adequate to cover the costs of complying
with the new subchapter. The department responds that the factors identified
by the commenters relate to the adequacy of the reimbursement rates paid to
program providers, regardless of the size of the provider, and, therefore,
no changes will be made to the rule based upon these comments. The department
explains, however, that the potential costs to program providers as they implement
the new provisions related to the supervised living and residential support
service components were taken into consideration in the rate-setting process
associated with the adoption of this new subchapter.
One commenter commended the HCS program, stating that it has provided his
brother with a home, constant care, medical attention, and special supervision,
and has ensured his right to individual privacy for more than 20 years. The
department acknowledges the commendation.
Thirteen commenters expressed concerns about or opposition to the provisions
that permit four individuals to live in the same residence. Two commenters
stated that the proposed changes represent the first step toward dismantling
the program because the same logic used to eliminate the three-bed model can
be used to eliminate the four-bed model and all future models for residential
living until all individuals are housed in institutional settings. Eleven
commenters stated their opposition to the provisions. Three of those commenters
stated that increasing the number of individuals residing together infringes
on the privacy of each of those individuals. Two of the eleven commenters
stated that this change limits an individual's choice and control and undermines
the original intent of the program, which is to give individuals the option
of living in the community. Another commenter stated that the provision is
not in the best interests of individuals receiving residential assistance
services through HCS, many of whom moved from state schools into the community
with recommendations that they live with no more that one or two other individuals.
The commenter stated that the department's attempt to reduce the cost of the
HCS program at the expense of these former state school residents suggests
that the department is abandoning its commitment to quality community-based
services. Two commenters stated their support for paying program providers
for the actual services delivered because some providers are currently receiving
payment for having awake staff during normal sleeping hours in residences
where the provider's staff are permitted to sleep. However, they opposed allowing
four individuals to live in the same residence and, stating that the provision
would result in the HCS program being used as a vehicle for the group home
model, recommended that the provision be withdrawn. One commenter stated that
the provision is inconsistent with the department's principles and values
as set forth in the Quality of Life Project, August 1994;
Values and Supports: A Vision for Mental Retardation Community Services in
Texas
, June 1998; the final report of the ad hoc committee on mental
retardation and managed care -- MR System for the Future, April 1996; and
with the Texas Association on Mental Retardation's principle of "achieving
full societal inclusion and participation of people with intellectual disabilities."
The commenter summarized the principles and values as: smaller versus larger
facilities; not regulating an individual's home in same way services are regulated;
a service system that is available, easily accessed, and used by other members
of the community. Two commenters opposed permitting four individuals to live
in the same residence because one of the individuals would require a greater
degree of care (based on the individual's need for supervision and support
by an awake provider during sleeping hours), thus reducing the level of staff
attention to the other individuals, increasing safety risks, and restricting
the activities (such as participating in recreation outings) of the other
individuals. Two commenters stated that individuals who are lease holders
will suffer negative consequences when they must break their leases to move
to a house that will accommodate four individuals and locate one or more additional
individuals in order to afford the larger residence. The department agrees
with the commenters' desire to retain the HCS system of services that recognizes
individual needs, encourages each individual's fullest development, and supports
the individual's participation in the community. The department replies that
the changes contained in the new subchapter achieve a balance between the
values voiced by the commenters and budgetary limitations. The department
disagrees that the provision will dismantle the program or end the opportunity
for individuals to live in homes serving three individuals. The department
also disagrees that the provision permitting four individuals to share a residence
will necessarily result in the restriction of individual rights or compromise
an individual's access to or participation in community life. For example,
the fact that an individual requires the support and assistance of a staff
person during sleeping hours does not mean that individual must also have
an overall lower level of functioning than the other individuals living in
the home. The provision does not relieve the program provider from the responsibility
to protect and promote the individual's rights as enumerated in §419.173
of the subchapter. The department commends those program providers and advocates
who encourage and assist individuals to be leaseholders or owners of their
own homes. However, under the final rules, these individuals would not be
eligible to receive supervised living or residential support because they
do not live in a residence in which the program provider holds a property
interest. These individuals would appropriately receive supported home living
services or companion care services and, therefore, should not need to move
to a home for four individuals in order to continue receiving HCS program
services.
One commenter expressed reluctant support for the provisions permitting
up to four individuals to live together in a home with staff who are awake
during normal sleeping hours. The commenter stated that no other viable alternative
existed to achieve the budgetary goals established by the 76th Legislature
for this biennium. However, the commenter stated that the support was contingent
upon the department developing an approval process for any provider wishing
to add a fourth person to a home. The commenter suggested the approval process
must, at a minimum, require the provider to submit documentation that person-directed
planning involving all members of the household was used to arrive at the
decision to add a fourth person, and clearly describe efforts that have been
made and will continue to be made to move individuals to a less restrictive
in-home support or foster/companion care model. The department appreciates
the commenter's support but declines to adopt the standards for approval of
a residence as recommended. In implementing the changes to the residential
assistance array, program providers must continue to assure that individuals
and their LARs are informed of feasible alternatives and that individuals
and their representatives participate in decisions regarding where the individual
lives and receives services. The department notes that person-directed planning
is a part of the enrollment process.
Two commenters stated that small providers and families with a strong stake
in the current HCS residential model were underrepresented on the two workgroups
convened by the department to provide input on the redesign of the HCS program.
The commenters stated that families of individuals currently being served
in three-person residences will work hard to make it viable for the long haul.
The department responds that the composition of both the Utilization of Resources
and the Access to Services workgroups was balanced with representation from
family members of individuals receiving HCS program services, program providers
who have a large percentage of three-person residences as well as those who
have very few, advocacy organizations, and local MRAs. The department believes
that the viability of HCS program group homes depends on individuals and families
working with providers to reassess needs and prioritize those needs within
budgetary allocations.
Two commenters stated that many parents of individuals have said they thought
placing their adult children in a setting to receive residential assistance
ensured that the individual was appropriately and permanently placed and that
the state could be trusted to take care of the individual after the parent(s)
died. Ten commenters who are family members and/or guardians of individuals
receiving HCS program services shared details about the settings in which
those individuals are receiving services and asked either that the proposed
changes in the residential assistance component be rejected or significantly
modified upon adoption of the new subchapter. In most cases, the individuals
either had moved directly from a state school into the current service setting
or had lived unsuccessfully in one or more community-based settings prior
to the development of the current satisfactory setting. The commenters stated
that those individuals currently live either alone or with one or two other
individuals with the support of the HCS program. The commenters stated that
to move those individuals from the current settings would be detrimental to
their well being. Five of the commenters asked that individuals currently
receiving residential support be allowed to remain in the settings which have
been proven to work well for them, and that the department not reduce reimbursement
rates for those settings and thus make it impossible for providers to afford
to serve those individuals. Two commenters stated that the department was
aware of the costs of serving these individuals at the time the service settings
were developed and that they shouldn't now be punished because of cost overruns
that are the responsibility of the department; the two commenters asked that
the department find another way to reduce program costs other than disrupting
individuals who are living successfully in their current residential support
settings. Two other commenters also characterized the projected movement of
individuals from their current residences into other residential settings
or the possibility that individuals might have to double up in rooms as disruptive.
The department responds that the current changes to the HCS program service
array are intended to ensure that the department will be able to continue
providing community-based services that are both effective and affordable.
The department explains that other possibilities, such as adjusting the eligibility
cap, were considered but rejected as being potentially more disruptive to
a larger number of individuals.
A commenter expressed concern that a fourth individual whose need for supervision
and assistance by awake staff during sleeping hours is temporary or cyclical
may be moved into a home and remain there on a permanent basis once the need
no longer exists. The commenter requested that a provision be included to
accommodate situations in which an individual may require awake staff on a
temporary or cyclical basis. The department responds that a program provider
should not establish a home for four individuals in order to meet an individual's
short-term needs. The department believes that such short-term needs can be
accommodated within the provisions of the rule and declines to add the provisions
requested by the commenter.
One commenter stated that the guardian of an individual in a state school
is permitted to refuse a recommendation that the individual move into community-based
services and asked why the guardian of an individual receiving HCS services
cannot likewise stop a provider from moving the individual into another setting
if the guardian opposes the move. The commenter suggested that the department
take steps to reduce the costs of serving individuals living in state schools
rather than punish individuals who have moved to the community and are served
for less than the cost of serving individuals living in state schools. The
department first clarifies that a guardian of an individual served in a state
school must, in accordance §419.164(a)(2) of the final rule, choose the
HCS program over services in an ICF-MR program (which includes the Texas state
schools) before enrollment of the individual. While the guardian of an individual
receiving residential assistance through the HCS program may oppose a change
of residential setting for that individual, the guardian must also weigh the
circumstances necessitating the change and the program provider's ability
to continue services for the individual if the change does not occur. The
department states that services provided in state mental retardation facilities
(SMRFs) are continually evaluated to assure that necessary services are provided
in the most effective and affordable manner possible. As has been true in
the past, individuals served in the SMRFs continue to relocate to the community
and receive services through the HCS program or other resources.
Thirty-three commenters recommended that the period for review and comment
on the proposal be extended and that regional hearings be held to allow all
individuals and providers to be informed about the proposed changes. The department
declines to delay adopting the rule as requested, and explains that the current
timeline for adopting the program changes is necessary to ensure attainment
of the cost savings objectives resulting from the current appropriations.
Two commenters expressed concern about the impact of the changes on the
department's Quality Improvement and Assurance System (QAIS) for community-based
mental retardation services. They suggested that allowing four person group
homes would make it more difficult for providers to achieve compliance with
the 1997
Personal Outcome Measures
from The
Council on Quality and Leadership in Supports for People with Disabilities
which are the basis of QAIS. One of the two commenters stated that factors
regarding choice, rights, and identity may be impacted. The second commenter
stated that increasing the number of residents in a home by 33% automatically
makes supporting personal choices and, ultimately, achieving personal goals
more difficult. The commenter further stated that four of the seven categories
of personal outcome measures -- identity, autonomy, affiliation, and attainment
-- will be more difficult to achieve in a larger residential setting. The
commenter also suggested that the remaining three categories -- safeguards,
rights, and health and wellness -- also may be adversely affected. The department
disagrees that the changes to the HCS program service array make attainment
of certain outcomes more difficult. Further, the department notes that the
size of a residential setting should not dictate whether or not personal outcomes
are achieved. Achievement of personal outcomes is rather a result of the values
and philosophy adopted by the program provider and its focus on assisting
individuals in realizing their goals.
Three commenters recommended that the department establish incentives to
make the foster/companion care model a more viable option in the HCS program.
One of the three commenters said the department, at a minimum, should develop
overall program guidelines based on successful foster/companion programs and
provide training and ongoing technical assistance. The other two commenters
stated that the department should prioritize the expansion of foster/companion
care. They acknowledged that this model may not meet the needs of all HCS
individuals and will not work in all communities, but stated that this model
is cost effective and ensures a high quality of life for individuals. The
department agrees with the commenters that foster/companion care can be cost
effective and provide a high quality of life for some individuals, and will
continue to evaluate strategies for increasing the availability of these options.
However, to realize the necessary cost savings during the current biennium,
the department is using available resources to implement the program changes
described in the new subchapter.
Two commenters expressed concern that in trying to reduce program costs
the department will find itself in the position of another state which had
implemented an aggressive foster care program. According to the commenters,
a high number of abuse allegations involving that program resulted in federal
intervention and requirements for significant changes. The department appreciates
the commenters' concern and replies that any actions the department may take
to encourage the use of foster/companion care would be accompanied by measures
to ensure the safety and well-being of individual's in those settings.
One commenter recommended that the department develop a plan allowing six-bed
ICF/MR homes to transition to a six-bed shift staff waiver home on a voluntary
or piloted basis. After the transition, each individual in those homes should
be reassessed, and, as appropriate, transitioned to less-restrictive living
environments consistent with their needs and desires. The commenter stated
that the total number of six-bed Medicaid-funded homes must not be increased
under this plan. The department acknowledges the commenter's restatement of
this recommendation by the Utilization of Resources workgroup. The recommendation
continues to be considered by the department; however, to realize the necessary
cost savings during the current biennium, the department is using available
resources to implement the program changes described in the new subchapter.
The same commenter recommended that the department immediately undertake
an in-depth review of state school residents recommended for community placement
to determine whether the plans of care for those individuals would exceed
the 125% eligibility cap for a waiver program. The department responds that
interdisciplinary teams at SMRFs currently conduct in-depth reviews of service
needs for individuals recommended for community placement. Under the new subchapter,
MRA service coordinators will develop a proposed individual plan of care (IPC),
based upon identified service needs, to establish an individual's eligibility
for the HCS program. If an individual's IPCs should exceed the 125% cost ceiling,
the individual will not be eligible for enrollment. The local MRA will assist
individuals recommended for community placement in determining appropriate
alternatives if HCS eligibility is not established.
The same commenter stated that full implementation of the proposed restructuring
efforts probably will not occur for at least two years, and recommended that
the commissioner should have the authority to waive, on a case by case basis,
the 125% cap for individuals "capping out" of a waiver program. The commenter
stated that this authority should be exercised only if all other utilization
review efforts designed to reduce the individual's plan of care below 125%
have been exhausted. The department declines to include such a provision in
the new subchapter because such a provision is counter to achieving the cost
savings objectives.
Nine commenters recommended that the department examine all possible options
before adopting the proposed new structure for the HCS program. The commenters
stated that the department's Utilization of Resources workgroup was not allowed
to examine all possible alternatives for achieving cost efficiencies in the
waiver programs, and suggested that the following five alternatives should
be studied: transferring persons between the ICF/MR and HCS programs; creating
incentives for foster care; returning to a flat rate reimbursement system
for HCS; analysis of cost savings related to enforcement of current caps;
and other utilization review activities. They further stated that the workgroup
was never presented with complete information about the amount of savings
needed, nor was a thorough cost analysis presented to the workgroup of the
savings that would be achieved either with the proposed changes or other possible
actions and/or options. Two of the nine commenters recommended that the proposed
subchapter not be adopted and that the workgroup should be reconvened and
attempt to develop a more viable alternative. One commenter recommended that
the department implement a system change that does not significantly change
existing services and stated that forcing expenditures by providers with questionable
savings outcomes in existing services is not beneficial to individuals currently
receiving HCS services or to those on the waiting. The department responds
that each of the alternatives addressed by the commenters was considered by
the workgroup, and that information available at the time concerning estimated
costs savings and the relative impacts of different alternatives was presented
to the workgroup. After the appropriation was known, changes to the HCS program
incorporating the workgroup's recommendations were proposed in this new subchapter.
The workgroup considered both short and long term strategies, some of which
continue to be evaluated as the department considers future program modifications
that will improve the cost effectiveness of service delivery and enhance the
flexibility of the program to respond to individual needs and capabilities.
The same nine commenters stated that the workgroup never developed a vision
for the future of HCS program, which is critical in any planning process and
would have served as useful guide in the workgroup's exploration of appropriate
and sequential steps necessary to achieve the vision. One of the nine commenters
questioned whether the department would respond to future cost issues by increasing
the residential model to permit even more individuals in a single residence.
The commenter stated that the integrity of the program shouldn't be sacrificed
based on the budget, and that values must dictate the budget not the other
way around. The same nine commenters also stated that the workgroup was informed
that proposed changes, especially with regard to residential models, were
only interim. The commenters stated that if this is true, all stakeholders
will be adversely affected should further program changes be imminent. The
department states that its vision for the HCS program of a system of community-based
services and supports that is effective, affordable, flexible, and consumer-drive
remains unchanged. The department explains that to maintain a balance of quality
of services within budgetary constraints, the department is committed to continuously
assessing the system of services and making appropriate changes. Maintaining
this balance preserves the vision and integrity of the program and the values.
Five commenters stated that the draft rates shared with providers by the
department for the proposed changes in the HCS program -- rates characterized
by the commenters as "massive funding cuts" -- are in direct violation of
provisions and promises made by the department to settle the
Lelsz vs. Gilbert
class action lawsuit. The commenters stated that
the department contracted with an independent accounting firm in response
to one part of that lawsuit to develop the current model rates for the HCS
program, which were implemented in January 1997. The commenters requested
that all information be made public concerning how the rates that will reflect
the changes in the HCS program are being determined, that a thorough cost
analysis of the savings that would be achieved by the proposed models be published,
and that providers and other stakeholders be permitted to respond to the proposed
rates. The department responds that the current modeled rates for the HCS
program were not developed in response to
Lelsz vs.
Gilbert
. The department states that there is no relationship between
the settlement of that lawsuit and the HCS program reimbursement methodology,
nor does the methodology violate the terms of the settlement agreement. Concerning
information about the new reimbursement rates that will reflect the changes
to the HCS program, the department responds that information about the rates
was made available, as required by THHSC rules, when the rates were proposed
in December 1999. A public hearing, also required by THHSC rules, was held
on January 4, 2000, to accept public comment concerning the rates. In addition,
department staff met with program provider representatives before and after
the hearing to address concerns with the proposed rates and the analysis used
to determine those rates.
Fifteen commenters expressed concerns with the costs of nursing services
being "bundled" into the daily fixed rates of the residential support and
supervised living components as opposed to the current practice of reimbursing
for nursing services on a fee-for-service basis. Five of the commenters asked
how the department arrived at the decision to include nursing services costs.
Two of the commenters recommended that providers be reimbursed on a fee-for-service
basis for those nursing services costs that exceed the portion of the fixed
daily rate that covers nursing services costs, with one of those commenters
stating that department staff had indicated in meetings with providers that
the proposed rule will be revised to permit this. Three of the commenters
requested that the department not include nursing services in the rates for
residential support and supervised living, but continue to reimburse for all
nursing services on a fee-for-services basis. Two commenters expressed concerned
that the level and quality of nursing provided to individual individuals will
be adversely affected by including nursing services costs in the rate for
these two service components. Two stated that providers are being expected
to provide the same level of services for drastically reduced funding; one
of those two commenters stated that the residential rate already is being
reduced by 28% before nursing costs are even included. One questioned whether
the nursing services received by individuals under foster/companion care would
be affected by this change in reimbursement methodology since this service
component also is reimbursed on a per diem basis. One stated that HCS is not
a medical program and not all individuals receiving residential support or
supervised living required nursing services; the commenter characterized the
inclusion of costs for nursing services as an unnecessary requirement and
cost. One of the 15 commenters on this issue stated that this provision would
significantly impact a program provider's nursing services costs. The department
has reviewed and considered the comments submitted concerning this issue,
and has decided not to include nursing services in the reimbursement rates
for residential support and supervised living. Nursing services will continue
to be reimbursed on a separate, fee-for-service basis. The department will,
however, continue to consider other reimbursement methodologies to achieve
administrative efficiencies and appropriate levels of nursing services in
the HCS program.
Twenty commenters expressed concerns about the short timeline projected
by the department for implementation of the HCS program changes on March 1,
2000. Of the 20 commenters, 19 stated that this transition period is unrealistic
and doesn't permit adequate time for individuals, family members, and providers
to make plans and recommended that the department establish a more reasonable
and adequate transition period. Four of the 20 commenters identified three
broad areas of difficulty: providers having to cancel leases and locate different
property to accommodate the four individuals, necessary and potentially costly
renovations to comply with
Life Safety Code
requirements, and individuals and families working with providers to make
choices about where the individual wants to live and the type of services
desired. Four of the 20 commenters stated that the proposed transition period
doesn't allow sufficient time for individuals and family members to exercise
true choice. One of those four commenters stated that to ignore input from
and the wishes of individuals and family members to meet an unnecessary deadline
sets a "terrible precedent" for the HCS program. Two other of those commenters
expressed serious concern that some providers will be forced out of business
as a result of the proposed changes and the short transition period, thus
reducing the options for individual/family choice of providers and settings.
Those two commenters suggested that more time be allowed to transition individuals
to alternative arrangements if their providers elect to leave the program.
Four of the 20 commenters recommended extending the transition phase by periods
varying from three to 12 months. One of the 20 commenters stated that individuals
and family members must be informed of the rule changes and also of the proposed
reimbursement rates, and questioned what the transition timelines would be.
Another commenter stated that a projected two-month transition period with
less than a year of forethought is insufficient for the proposed radical changes
to the 15-year-old HCS program and compared that with the year of preparation,
which preceded implementation of the MRLA pilot. That commenter supported
this assertion with references to "significant and unresolved issues relating
to service coordination, utilization control, provider reimbursement, enrollment
and certification, client transfers, separation of authority and provider
functions and many others." Two commenters stated that while the department
has been discussing and planning the proposed changes for years, providers
and parents have just begun to understand the implications of the changes.
One commenter asked what timelines the department anticipated for the transition.
The department acknowledges the concerns expressed by the commenters regarding
the implementation schedule and has, through the rate-setting process accompanying
the adoption of the new subchapter, provided additional time for individuals
and their families to work with their program providers to evaluate available
options. In addition, this action will allow program providers additional
time to evaluate their service systems and make adaptations necessary consistent
with the provisions of the new subchapter concerning supervised living and
residential support which become effective March 1, 2000. These timelines
are necessary if the department is to meet budget projections.
Eleven commenters stated that the department's stated intent to allow providers
to begin transition activities before the Health Care Financing Administration
(HCFA) approves the associated waiver amendment and before the projected effective
date of the new rules places providers and individuals at risk. One commenter
recommended that implementation of the proposed new rules be suspended until
HCFA approves waiver amendment. Two of those commenters recommended that the
transition period should begin only after all approvals are obtained, with
one of the two also recommending that sufficient training be provided to all
affected parties before transition begins. Two commenters suggested that implementing
the changes to HCS before receiving HCFA's approval could result in a situation
similar to that with the Mental Retardation Local Authority (MRLA) pilot waiver
when implementation of the program had to be delayed pending revision of the
waiver to meet HCFA's objections. The department responds that those portions
of the waiver that must be amended do not deviate from the types of services
approved under §1915(c) of the Social Security Act. Therefore, the department
will proceed with adoption and implementation of the program change contemporaneously
with the submission of the waiver amendment to HCFA. The department explains
that the MRLA program required approval of a new waiver request rather than
an amendment to an existing, approved waiver, which allows services to proceed
pending HCFA's approval. Implementation of the program changes will not occur
prior to the projected March 1, 2000, effective date of the new subchapter.
One commenter suggested piloting the proposed restructuring of the HCS
and the Home and Community-based Services -- OBRA (HCS-O) programs. The commenter
stated that this would provide an opportunity for the department and stakeholders
to evaluate the feasibility of the proposed changes. The department responds
that the need to meet the projected budget projections for savings in the
HCS program during this biennium makes piloting these changes an impossibility.
Therefore, the department declines to implement the commenter's suggestion.
A commenter suggested that the department explore the "parents as case
managers model" and a voucher model that is individual/family controlled as
a method for achieving substantial savings for the HCS program. The commenter
stated that parents often have experience developing a plan and managing a
budget through their previous experience with in-home and family support grants
and might prefer not to have case management. The commenter said that option
for case management should remain available for those who need or prefer that
model. The commenter further suggested that client-managed attendant services
have been successfully piloted by the Texas Department of Human Services,
and that the state has the opportunity through SB 1586 to expand the voucher
model to other programs, including long term care waivers. The commenter stated
that the voucher model would complement the shift of enrollment and initial
IPC development responsibilities to the MRAs. The department appreciates the
commenter's suggestion to explore the two design modifications mentioned.
The department will continue to evaluate and recommend program modifications
that will improve the cost effectiveness of service delivery and enhance the
flexibility of the program to respond to individual needs and capabilities.
Fifteen commenters expressed concerns with the economic and environmental
impact of
Life Safety Code
(LSC) requirements
when a provider implements the "four-bed model." The commenters stated that
the department has not investigated which chapter of the LSC will be applicable
for this model, despite numerous requests to do so. Four commenters observed
that the preamble acknowledges the probable existence of economic costs but
does not provide an estimate of the probable fiscal impact, and stated that
the reimbursement rate for the four-bed model must address the costs of complying
with the LSC requirements. Two commenters stated that numerous requests have
been made of the department to make a determination of which LSC chapter will
apply and the cost of compliance, but the department has not responded. Six
commenters stated that until the department establishes which LSC requirements
apply, providers will not know what environmental changes must be made and
whether they are affordable. One commenter stated that incorporating a sprinkler
system in leased homes to comply with one LSC requirement would be problematic
because the owners will not allow or make the necessary renovations due to
cost. Two commenters stated that individuals who own or lease their homes
will not be able to afford to comply with the LSC requirements, and stressed
that this is the responsibility of the individuals since all room and board
costs belong to the individual, not the provider. The commenter added that
if a landlord does agree to pay for such changes, the resulting increase in
rent might be beyond the means of even four individuals. The commenter further
stated that if the provider assumes the financial responsibility of making
homes LSC compliant, this would be viewed by supplemental social security
and Medicaid authorities as a form of "subsidy" which would reduce the amount
of SSI received by the individual and any reduction would adversely effect
the individual's ability to live in any community setting. Three commenters
stated that complying with the LSC would effectively reclassify HCS homes
as "facilities." One of the three stated that current residential zoning codes
that limit usage to single family homes would also have an adverse effect.
A commenter stated that an individual's right to one-time, lifetime modifications
permitted in the HCS program should not absorb the LSC-related costs. The
department responds that the final rule specifies at §419.178(e) the
LSC requirements that must be met if four individuals live and receive services
in the same residence. These residences must meet LSC requirements applicable
to small residential board and care facilities as contained in the edition
of the LSC most recently adopted by the Texas State Fire Marshal's Office.
Currently, the Texas State Fire Marshal's Office has adopted the 1994 edition
of the LSC. The department emphasizes that these are minimum requirements
and recognizes that enforcement of local building codes and fire safety requirements
are within the jurisdiction of a community's local officials rather than the
department's. The department further responds that, in the associated rate-setting
process for the supervised living and residential support service components,
it is considering the costs of transitioning to the provision of the newly
defined supervised living service component and the re-defined residential
support service component. With regard to the issue that individuals who own
or lease their homes must bear the costs of home renovations necessary to
meet LSC requirements, the department responds that the department's approval
of residences applies to those homes in which the program provider holds a
property interest (i.e., property leased or rented by the program provider).
Additionally, the rules specify that supervised living and residential support
be provided in a residence in which the program provider holds a property
interest and that if four individual's receive services in the same residence
one must receive residential support. Therefore, if a individual owns or leases
a home, the program provider would not hold a property interest in the home,
the home would not be subject to the department's approval under the provisions
of §419.182,and would not qualify as a service site for four individuals.
The department disagrees that the program provider's assumption of financial
responsibility for necessary renovations to a home where four individuals
will live and receive services would be viewed as a "subsidy" and result in
a reduction of an individual's SSI benefits. As the program provider controls
a residence in which supervised living or residential support is provided,
it is the program provider's responsibility to assure that the residence meets
all applicable building and safety standards. With regard to limitations imposed
by zoning restrictions, the federal and state law provide protection against
zoning ordinances that have discriminatory effects on individuals with disabilities
and, therefore, the department does not anticipate homes in which four individuals
live will be significantly impacted by the described zoning provisions. Finally,
the department agrees that an individual's minor home modification benefit
not be used to cover the cost of renovations required to meet LSC requirements.
The intent of the minor home modification benefit is to enhance accessibility
and improve functioning of the individual; not to assure a residential structure
complies with building and safety codes applicable to the residence.
Eleven commenters recommended that the department provide timely and adequate
training to all stakeholders. One of the commenters additionally recommended
that the department convene a workgroup to develop detailed guidelines and
procedures for the transition to and implementation/operation of the program
changes. One of the nine stated that at least six months preparation time
prior to implementation is necessary in addition to training and technical
assistance. Five of the nine stated that what they considered to be the department's
"vague promises of training for MRA staff in January and February" would be
inadequate to prepare MRAs for their new responsibilities. Those five commenters
recommended that department staff provide each MRA with intensive training
on several occasions over a period of time. Two commenters stated that because
local MRAs vary considerably, the transition of case management responsibilities
to local MRAs could be very confusing unless everyone has been properly trained
and roles and responsibilities have been clearly defined for both the MRA
and the providers. Two commenters recommended that the department develop
and disseminate detailed written guidelines to all program providers, with
one of the two recommending that the information should include, at a minimum,
the existing utilization guidelines and any revised guidelines intended for
use by the department in authorizing plans of care above the 100 percent waiver
program eligibility cap. One of the nine commenters stated that training was
essential to avoid the "wide spread disagreement and misunderstanding" that
the commenter contends still exists in the MRLA pilot sites. The department
responds that a task force charged with addressing transition issues began
meeting in early January to assist the department in developing implementation
strategies to include planning for training and ongoing technical assistance
for both MRAs and program providers. The department agrees that training is
essential to properly implement system changes and that the training should
include utilization review guidelines and plan of care authorization processes
in both the initial training and on-going technical assistance.
Two commenters stated that unless the program changes as proposed are modified,
small non-profit providers are endangered. The commenters stated that these
providers have the potential to provide the highest quality of individualized
care in a cost-effective manner. The department responds that each program
provider will have to evaluate its own circumstances to determine what is
best for the future of its business. The changes to the program are significant
and could result in some providers choosing to cease operations.
Six commenters criticized the timing and manner in which individuals receiving
HCS services and their families learned of the proposed changes, and requested
that more timely notification be provided to all stakeholders of planned changes
to the program. One commenter stated that the department postponed issuing
a letter to individuals, LARs, and concerned family members until after the
public comment period on the proposed new subchapter had ended. The commenter
described the October 26, 1999, public hearing as the most critical opportunity
to share comments and stated that the hearing was not sufficiently publicized.
Further, the commenter stated that the department did not adequately address
a written request by a provider association in July that additional notification
mechanisms be used. The commenter recommended that the department utilize
other ways of notifying all stakeholders of major actions in addition to the
required publication of the proposal in the
Texas
Register
. Another commenter stated that all stakeholders should have
been informed of the proposed changes and the opportunity to offer testimony
during the public hearing. One commenter stated that she had learned of the
proposed program changes from her son's program provider and questioned whether
the department was interested in the opinions and concerns of individuals,
LARs, and family members regarding what she described as a "life threatening
issue." Another commenter stated that individuals should be notified in writing
by their provider or the appropriate MRA of imminent changes and given adequate
time to provide comment. A commenter acknowledged that while something must
be done to reduce the average monthly cost per individual, the commenter does
not believe the legislature intended for individuals to be displaced from
current settings or for guardians and family members to be left out of the
process which decided what changes should be made to the HCS program. The
department regrets that certain commenters did not believe they were adequately
informed of the proposed revisions. The department solicited the advice and
insight of program providers, MRA staff, and advocate groups representing
individuals and their families through two workgroups in formulating the recommendations
incorporated in this new subchapter. The department is not able to inform
and confer with each stakeholder and, at the same time, propose changes that
can allow the continuation of services with the potential of extending services
to persons on the waiting list. The department has corresponded with individuals
and their family members and with program providers to provide information
about the changes to the program. The department has responded to questions
and concerns of family members about the proposed program changes, and has
provided information about the possible outcomes.
One commenter stated that changing current residential arrangements to
accommodate the new three or four person group home models will result in
many individuals being uprooted from their homes and moved, sometimes to other
communities. The commenter stated that these provisions of the new subchapter
give no consideration to the choices of individuals and their families. The
commenter stated that if an individual's LON is not sufficiently high, the
individual and family may not be permitted to choose a "four-bed shift model"
even though they would be more comfortable with awake staff or they would
rather have more continuity. Nor may the individual and family be allowed
to choose a "three-bed sleepover model" if the individual is deemed through
utilization review to need only foster care, even though foster care is not
desired. The department responds that provisions of the final rule are intended
to provide a closer match between an individual's demonstrated needs and the
service actually delivered by the program provider. The rule specifies that
when an individual's demonstrated needs warrant the presence of awake staff,
the residential support component is appropriately provided. The department
clarifies that the desire for a service unsupported by identified needs for
that service does not establish a right to choose the service.
Five commenters expressed concerns about the preparation and ability of
local MRAs to complete the processes necessary for the enrollment of an applicant
in the HCS Program. The commenters claimed that many MRAs operating HCS programs
do not now perform these functions well for the HCS programs they operate
and questioned the department's expectation that those MRAs will be able to
perform these functions for all HCS applicants "and recipients" in their local
service area. A commenter stated that the proposed new subchapter does not
clearly delineate standards by which MRAs will be expected to perform enrollment,
initial assessment, development of care plans, and service coordination responsibilities.
The commenter stated a thorough testing of each MRA's readiness to handle
these administrative oversight responsibilities is critical to prevent delays,
disruptions, and inconsistencies in initiating or continuing services. This
commenter stated that, because some MRAs do not appear to have the necessary
expertise to handle these new responsibilities, recommended that extensive
training in this area be provided to MRAs and program providers along with
the development of detailed guidelines, processes, and mechanisms to ensure
immediate resolution to problems and barriers. The commenters believed that
inexperienced MRA service coordination staff can "set a level of need so low"
that a provider cannot keep a stable, well-trained staff and meet an individual's
needs. The commenters further expressed concern that assigning these enrollment
activities to MRAs creates or perpetuates a conflict of interest on the part
of MRAs that also provide HCS Program services. One of the commenters further
stated that without detailed guidelines and effective oversight processes
in place the conflict will be compounded. A commenter stated that having the
MRAs assume these additional responsibilities will result in increased administrative
costs for the MRAs and will result in delayed starts for services and lack
of consistency in how these activities are performed. This commenter expressed
concern that the MRA's involvement in the enrollment process will delay the
start of services and result in a lack of consistency in how these activities
are performed. The commenter questioned what mechanism would be in place to
handle those situations in which the MRA cannot perform these duties in a
timely fashion. The commenter stated that program providers can complain to
the department but asked to whom individuals and family members should complain.
The department responds that the expansion of the MRAs' role in the HCS program
enrollment process is part of the department's long-term efforts to establish
clear distinctions between functions as the mental retardation authority for
an area and functions as a provider of direct services. The department disagrees
that the involvement of the MRA in these processes will delay or result in
inconsistencies in the process. On the contrary, given the current number
of operating HCS programs, the involvement of the MRAs at the point of enrollment
is expected to lead to greater consistency in the processes. The department
does not agree that the current rule action compounds or creates a conflict
of interest for the MRAs and points out that, as has been true for some time,
the capacity of programs operated by MRAs continues to be limited by the department;
MRAs are capable of accepting enrollments of individuals only when the capacity
of their programs fall below the authorized limit. It is the department's
intent to provide training and on-going technical assistance to MRAs as they
assume their expanded role in the enrollment process and to monitor the progress
of enrollments. In response to the commenter's question on how and to whom
individuals and family members should complain, the department notes that
each MRA is required to have a complaint process and to inform individuals
of that process.
Two commenters expressed support for having local MRAs conduct the initial
assessment and develop the initial individual plan of care (IPC) for an individual
enrolling in the HCS program. One of the two recommended revising the provision
at §419.166 to extend this policy to cover those individuals already
receiving HCS services with the MRA responsible for making revisions to the
IPC, the level of care (LOC), and level of need (LON) for each individual
when those elements are due for review. The department responds that the role
of MRAs in the administration of the HCS program will be expanded. The role
recommended by the commenter is currently being evaluated in the department's
pilot project, the Mental Retardation Local Authority Program. The department
believes that increasing the MRA's role as defined in these rules is an appropriate
step at this time.
One commenter stated that MRAs will set the LON as low as possible to save
money and cited a specific example in which a provider was able to substantiate
a higher LON for an individual than that initially established by the local
MRA provider program. The commenter questioned whether a local MRA would "fight"
to change an inappropriately low LON when the MRA must meet a five percent
reduction in costs to be included in the MRLA pilot. The department disagrees
with the commenter's premise that MRAs will set LONs lower than appropriate.
The assigned LON should accurately reflect an individual's service level needs
and should be recommended based upon the provisions of this rule. The department
also notes that under the provisions of this rule, a program provider may
request a revision to an assigned LON. The department further explains that
it has not directed MRAs participating in MRLA to reduce costs by five percent.
With regard to providing the supervised living service component, a commenter
stated that it is uncertain whether a sufficient number of persons are interested
in a live-in job to fill all the positions needed, and therefore, requested
that language be included in the subchapter relieving private program providers
of the current "zero reject policy" when the provider is unable to accommodate
an individual because appropriate staffing cannot be provided. A second commenter
addressed the difficulty of complying with U.S. Department of Labor standards
that apply to a staff person not being paid for time the person is present
but asleep in the home as allowed in the supervised living model. The commenter
further stated that, in the current good economy enjoyed in most areas of
the state, staff for such duty are hard to find. The commenter stated that
the people willing to undertake the job are different from the people currently
staffing HCS residential assistance homes and most do not have families. The
commenter questioned the desirability of this, and anticipated a resulting
high turnover that will be very disruptive to the lives of the individuals
residing in those homes. With regard to the description of conditions under
which the supervised living component is provided, one commenter stated that
a limited employment market would reduce the program provider's ability to
hire direct service providers who are willing to live in homes in which the
program provider holds an interest. The department first explains that the
supervised living component requires the presence of a direct service provider
in the residence during normal sleeping hours but does not require that provider
to live in the residence. Second, the department acknowledges that labor market
characteristics are an important consideration for all program providers but
it declines to allow exception to the current zero reject policy. The department
acknowledges the program provider's obligation to comply with Department of
Labor standards and that the program provider will have different standards
to satisfy if the program provider chooses to change from a staffing pattern
using awake-staff to one using "on-call" asleep staff. The department responds
that the final rule does not stipulate the employment conditions for direct
service providers.
A commenter objected to the requirement for awake staff as provided in
the residential support component and questioned whether the department had
calculated the cost of awake staff for the residential support model, explaining
that this expense will be higher than the cost of complying with
Life Safety Code
requirements. The department responds that the cost
of awake staff was considered in the development of the reimbursement rate
for residential support.
Five commenters predicted that a chaotic setting would result if four individuals
live together, all require extra staff plus awake staff at night, have significantly
involved needs, and individualized behavior plans. The commenters predicted
staff burnout in such a situation resulting in high turnover and inexperienced
staff in need of extensive training. They questioned how the department expects
them to provide habilitation and promote community access under these conditions.
The department responds that it does not expect program providers to arrange
living settings that are chaotic and proscribe the provision of habilitation
and community integration activities. Program providers should work with all
individuals receiving services to assure living settings are responsive to
each individual's needs.
Two commenters recommended that the department "sunset" those provisions
of the new subchapter that permit up to four individuals to live together
in a home before March 1, 2002. One of commenters stated that during the intervening
two-year period, the department should explore all other viable alternatives
and move toward a reimbursement model that is not based on living arrangement.
The department declines to set an expiration date for the referenced portion
of the rule. The department remains committed to an on-going evaluation of
the program to identify methods that will improve service provision and cost
efficiencies. In addition, the department notes that all department rules
are subject to a legislatively mandated review process every four years.
Two commenters stated that individuals and family members are reporting
to advocacy organizations that some providers who currently serve individuals
living in three-bed residences are moving "wholesale" to four-bed residences.
The commenters stated that these providers are not presenting these individuals
and family members with the option of staying in the current setting. The
commenters characterized this as disconcerting, given that the department
has indicated that the HCS program must begin to move away from the residential
model. The department has informed program providers that individuals are
to receive services in the location most appropriate to their needs. In addition,
the department has recommended that program providers not assume that all
individuals currently living in a three person group home should automatically
live in a four-person group home.
Two commenters recommended that the definition of "applicant" in §419.153
be modified to state "a Texas resident or legally authorized representative(LAR)."
The commenters also recommended that the term "LAR" be added each time the
term "applicant" is used in the rule. The department declines to add the term
LAR in the definition of applicant because the term is reserved to denote
the person who is evaluated for HCS program eligibility and who, if found
eligible, is enrolled in the program. Reference to an applicant's LAR was
added at §419.164(a) to indicate that a request for program services
may be submitted applicant by the applicant or by the applicant's LAR on behalf
of an applicant.
One commenter requested that definitions of the four residential assistance
components -- supported home living, foster/companion care, supervised living
and residential support -- be included in the definition section to assist
a reader in locating changes noted in the preamble of the rule proposal. The
commenter also stated that the description of services in §419.174 did
not adequately define the terms and that references to the
HCS Service Definitions and Billing Guidelines
were insufficient for
purposes of the proposed rules. The department declines to restate in the
definitions section the description of program service components stated in §419.174.
The service elements listed for each service component --elements the provider
must assure are available to individuals -- comprise the definition of the
service component. The department will retain the reference to the
HCS Service Definitions and Billing Guidelines
as direction to program
providers on the processes and procedures to be followed in the delivery of
services.
Two commenters requested the department to define the term "interdisciplinary
team" using the language contained in state law. The commenters noted that
the interdisciplinary team makes recommendations rather than decisions which
are made by the individual or individual's legal representative. Similarly,
the commenters requested the term "conclusions" be replaced by the word "recommendations"
in the definition of "individual service plan" stating that individuals and
legal representatives make conclusions, not interdisciplinary teams. The department
responds that the definition of "interdisciplinary team" contained in the
proposed rules is not inconsistent with that contained in the Persons with
Mental Retardation Act. The department notes that, while the Act requires
that individuals and their legal representatives be invited to be members
of an interdisciplinary team, the HCS Program specifically includes an individual
and his or her legal representative as part of the core membership of the
team. The active participation of an individual and the individual's LAR in
the development of the individual service plan is integral to the success
of the planning process and the final plan. The department has revised the
definition of "individual service plan by adding the word "recommendations"
to those factors that are documented in the individual service plan but declines
to remove the word "conclusions." In the department's view the team's conclusions
(based on its consideration of assessment information, identified needs, preferences,
and recommendations) direct the delivery of services to an individual.
Regarding the definition of "person-directed plan" in §419.153(17),
two commenters suggested including the term "legally authorized representative
(LAR)" in reference to the individual's outcomes as identified in the person-directed
plan. The department responds that the person-directed planning process focuses
on identifying outcomes to be achieved for an individual rather than those
of the individual's LAR. The department recognizes the role of the LAR in
identifying outcomes for an individual and has revised the definition to state:
"a plan developed for an applicant ...that describes the supports and services
necessary to achieve the desired outcomes identified by the applicant or the
applicant's LAR on behalf of the applicant."
Two commenters requested the department to revise the definition of "service
coordinator" at §419.153(19) to include assistance provided by a service
coordinator to the LAR. The department has revised the definition to state
that the service coordinator assists the individual, "or the individual's
LAR on behalf of the individual."
Two commenters stated that the definition of "service planning team" at §419.153(20)
be revised to indicate that the inclusion of other individuals on such a team
be based on the choice of an "applicant and/or LAR" rather than on the choice
of an "applicant and LAR." The commenters further questioned the use of a
"service planning team" rather than an interdisciplinary team. The department
responds it believes all individuals, including those who have had a legal
representative appointed, should participate, within their capabilities, in
choosing individuals to assist in the development of their service plans.
The department declines to make the recommended revision but has revised the
definition to clarify the role of an individual's LAR. With regard to the
second recommendation, these rules delineate the role of the Mental Retardation
Authority in facilitating an applicant's enrollment in the HCS Program. The
plan to accomplish an individual's enrollment is developed by a service planning
team convened by an MRA service coordinator. This is a plan separate from
that developed by the interdisciplinary team convened by the HCS Program provider
following an individual's enrollment. The distinction between the two plans
has been retained in the rules.
Regarding §419.154(c)(5), one commenter noted that respite should
be a separately reimbursable service for individuals receiving foster/companion
care. The commenter stated that attempts to increase the use of the foster/companion
care will fail without allowing reimbursement for respite. The department
appreciates the commenter's recommendation and will consider it as the reimbursement
model is reviewed during the coming year. The department notes that the current
reimbursement model for the foster/companion care service component includes
consideration of 30-day respite for relief of the primary service provider.
One commenter supported the rule provisions at §419.155(a)(4) that
describe the eligibility criteria related to annual individual plan of care
costs. The commenter also recommended that service planning incorporate non-program
resources to help the cost of individual plans of care remain under the cost
ceiling. The commenter pointed out that the provisions would allow individuals
with lower levels of need to have plans of care that cost up to the maximum
allowed and recommended the department implement a policy that matches an
individual's "budget (IPC)" to their level of need. The department agrees
that unnecessary services and supports should not be provided through the
program. The department believes that the provisions of §419.157(b) will
promote the incorporation of resources outside the HCS Program to meet individual
needs for services and supports. The department's utilization review process,
which provides for routine review of all individual plans of care exceeding
100% of the average annual cost for ICF/MR services, includes steps to confirm
an individual's need for each program service contained in the plan and that
potential non-program resources are unavailable to meet the needs identified.
Furthermore, the department has considered the policy of establishing different
IPC cost ceilings depending upon assigned level of need as recommended by
the commenter and will continue to evaluate both the potential positive and
negative outcomes for individuals and for the program overall.
Regarding §419.156, one commenter asked the department to clarify
whether or not co-payments might apply to children as well as adults and to
specify who determines the amount of co-payment. The department responds that
the provisions concerning determination of co-payment apply to children as
well as adults. In the case of children, only the child's income is considered
in the determination. The department has revised the rule at §419.156(b)
to indicate that the Texas Department of Human Services determines the amount
of co-payment.
A commenter requested that room and board be included as an allowable expense
in the calculation of an individual's co-payment. The department responds
that the rules of the Texas Department of Human Services govern the definition
of allowable expenses and is, therefore, beyond the scope of this rule.
Two commenters requested that the word "conclusions" be replaced by the
word "recommendations" in §419.157(b)(3) relating to the documentation
supporting the type and amount of services included on an individual plan
of care. It was the commenters' opinion that only individuals or their LARs
make decisions regarding services. The department declines to revise the subsection
as recommended, explaining that the individual and the individual's legal
representative are members of the team that develops the individual's plan
of care and may accept or reject the proposed plan of care but may not override
the team's conclusions.
Two commenters requested that the rule specify at §419.157(c) the
individual or the individual's LAR as separate signatories on the individual
plan of care in order not to "lump" the individual or representative together
with other team members. The department responds the individual and the LAR
are defined as required members of both the service planning and interdisciplinary
teams, and declines to modify the rule as requested.
Regarding §419.158(b), a commenter recommended adding a statement
to more clearly indicate that the department must give special authorization
for individual plans of care having costs exceeding 100% of the estimated
annualized average per capita cost of ICF/MR services. The department declines
to include the additional explanation as recommended because the language
clearly indicates the conditions for obtaining the department's approval of
individual plans of care exceeding 100% of the ICF/MR costs.
One commenter was concerned that the routine review of plans of care exceeding
100% of the estimated annualized average per capita cost of ICF/MR services
would cause unnecessary efforts by the program provider to justify services
in cases where it would be "mathematically inevitable" that an individual's
plan would exceed this cost level because of the individual's assigned level
of need. The commenter recommended that the review occur whenever an IPC cost
exceeds 100% of the average cost of ICF/MR services for a comparable level
of need. The department responds that the recommended revision regarding the
review criteria will not be made at this time. The provision that certain
plans of care will be routinely reviewed by the department should not result
in unnecessary efforts by the program provider to justify services as program
providers must justify all services included on an IPC based upon identified
individual needs.
With regard to the use of the
Inventory for Client
and Agency Planning
in the assignment of levels of need (LON), one
commenter expressed the opinion that the inventory does not allow "very functional
distinctions to be made relative to intensity of care needs." In establishing
an individual's LON assignment, the department considers individual differences
with respect to the need for extraordinary behavioral interventions. Additionally,
the LON assignment does not prescribe the array of services or the amount
of services needed by an individual.
Regarding §419.162(c), one commenter stated that the 21-calendar day
time limit for the department's response to a program provider's request for
an increase in an individual's LON should be reduced to seven calendar days.
The commenter believed that allowing this amount of time for the approval
process would cause an individual to remain in a serious situation unnecessarily.
The department clarifies that a program provider is obligated to safeguard
an individual's health and welfare at all times and to not leave an individual
in a serious situation unnecessarily. Additionally, when an LON assignment
change is approved by the department, the department establishes an effective
date for the change on the date of the request, not on the date of the approval.
One commenter recommended clarifying at §419.163(a) whether it is
possible for an individual or legal representative to request the department
to reconsider an LON assignment. The department responds that the assignment
of an LON determines the amount of reimbursement paid to a program provider
for certain program services and does not prescribe the type or amount of
services needed by an individual. The opportunity to request a reconsideration
of an LON assignment involves the issue of the amount of payment made by the
department to the program provider for certain services. The department believes
the rule clearly indicates that it is the program provider who may request
reconsideration, and, therefore declines to add the recommended language.
One commenter requested the department to specify in §419.164 if an
applicant must submit a written request for HCS Program services or if the
request can be made by telephone. The department agrees that the manner in
which the request is submitted should be specified and has revised the rule
at §419.164(a) to indicate that an applicant or the applicant's legal
representative must submit a written request for HCS Program services to the
MRA.
Two commenters requested the department to specify in §419.164(a)(2)
that when the MRA service coordinator informs an applicant of his/her right
to choose between the HCS Program and the ICF/MR Program, the MRA assure that
the applicant is also informed of the right to choose to receive ICF/MR services
in a state school. The department responds that the provision has been revised
to clarify that the service coordinator will inform the applicant or the applicant's
LAR of the choice of ICF/MR services as provided by a state school or community-based
program.
Two commenters requested the department to revise §419.164(a)(3) to
indicate that the service planning team includes the applicant or the applicant's
LAR, rather than stating both as team members. In addition, it was recommended
that other persons be included as team members based upon the choice of the
applicant or the applicant's LAR, rather than being based upon the choice
of both. The department responds that the person who is or will receive services,
regardless of whether an LAR has been appointed, should be included in and
encouraged to participate all service planning discussions to the greatest
degree possible. Therefore, the department declines to include the recommended
revision.
A commenter asked how MRAs are to be reimbursed for the enrollment services
it performs under §419.164 when an applicant elects to enroll with a
non-MRA-operated program provider. The department responds that the MRAs will
be reimbursed for the enrollment functions it performs for all applicants
irrespective of the type of HCS program provider chosen through the Service
Coordination Program or through Medicaid Administrative Claiming.
A commenter noted that the rule does not address the process for individuals
to transfer between HCS provider programs and asked if there were differences
in the transfer process since the initial enrollment process will be performed
by the MRA. The department responds that the rule revisions do not change
the current processes followed when individuals desire to transfer between
program providers.
With regard to §419.165, two commenters requested the department to
change its current policy of adding individuals to the program waiting list
based on the chronological date of the individual's request to a policy that
recognizes individuals "most in need." The department declines to change the
current "first-come-first-served" policy for offering program services. While
the department has considered defining a different waiting list policy that
will be fair and equitable, resolving this critical issue requires further
consideration.
In regard to the provisions at §419.165(3)(F) governing when an applicant's
name may be removed from the waiting list, two commenters asked that the rule
be modified to indicate that an applicant's name may also be removed when
the applicant's LAR does not respond to notification of a program vacancy
within timelines. The department agrees and has modified the rule as recommended.
A commenter requested that the department clarify the requirement at §419.166(a)(2)(C)
for the service planning team or the interdisciplinary team to provide reasons
why the team concluded an individual requires residential support (which provides
for supervision by awake service providers during normal sleeping hours).
The department agrees with the recommendation and has revised this provision
to state that such reasons may be based upon an individual's demonstrated
need for staff intervention to respond to an individual's medical condition,
to a behavior displayed by the individual that poses a danger to the individual
or to others, or to an individual's need for assistance with activities of
daily living during sleeping hours.
Two commenters requested a revision to the provisions at §419.169
relating to fair hearings to indicate that an individual's LAR is entitled
to a fair hearing. The department responds that S419.169 has been revised
to reflect the department's adoption of a new rule, Chapter 419, Subchapter
G, governing "Medicaid Fair Hearings." Requests for fair hearings and the
conduct of hearings for applicants seeking and individuals receiving HCS Program
services will be governed by this new rule. While only an applicant or individual
receiving services is "entitled" to a fair hearing, the new rule allows an
LAR to request a hearing on behalf of an applicant or individual.
Two commenters suggested that language be added to the certification principles
to include reference to an individual's LAR. At §419.172, the commenters
requested that the program providers' responsibility to ensure the protection
of an individual's rights includes the rights of an LAR and that language
be modified to indicate that family members could assist an individual in
making choices with the consent of the individual's LAR. The commenters also
recommended modification of all principles concerning the rights of individuals
in §419.173 to include reference to the individual's LAR rather than
in just three of the rights. The commenters further recommended that the department
revise the rule language to indicate that an individual be assisted in exercising
the same rights as persons without disabilities "if appropriate" and asked
how persons with a profound level of mental retardation could exercise the
same responsibilities as people without disabilities. The department responds
that the language has been modified to assure that an individual's rights
and the rights of an individual as exercised by the LAR on behalf of the individual
are protected. With respect to the second recommendation, the rule has been
modified to indicate that family members may assist an individual in making
choices about living arrangements, work, etc. with the consent of the individual
or the individual's LAR. The department declines, however, to suggest that
there may be occasions when it is inappropriate to assist an individual to
exercise the same rights and responsibilities as those without disabilities.
It is the department's view that all individuals should be encouraged to and
assisted by both the program provider and by their legal representatives,
when one has been appointed, in exercising as much autonomy as possible regardless
of the degree of disability. Additionally, the department declines to include
reference to an LAR in each right because the department believes the language
at §419.173(39) appropriately conveys the commenters' intent.
With regard to §419.174(49) which describes the supervised living
service component, two commenters stated that the requirement for a service
provider to be present in the residence at all times individuals are present
was too restrictive. The commenters noted that the requirement would not allow
individuals capable of remaining at home without direct support from staff
for some interval of time to do so and may restrict an individual's development
of a greater degree of independence. Another commenter stated that the department's
reimbursement method for supervised living likens the staff person to a housemate
or to not being on duty for purposes of reimbursement. This commenter further
states that, through its proposal to not reimburse program providers for "being
on call" during normal sleeping hours, the department sends a message that
it "doesn't believe it is necessary for a staff person to be in the residence
whenever a resident is present." With regard to the concerns of the first
two commenters, the department first clarifies that it is not the intention
of the department to define a service that will restrict any individual from
developing to or functioning at his or her fullest level of independence.
The department further views the HCS program as a vehicle to closely tailor
each residential assistance service component to an individual's unique strengths
and needs. The department has revised this subsection to state that the service
provider must be present in the residence during normal sleeping hours rather
than whenever an individual is present. In doing so, however, the department
reiterates that the provision of supervision and supports through the supervised
living service component must be based upon the characteristics of each individual
and consideration of the individual's health and welfare. The department states
further that individuals who can safely remain at home without supervision
during sleeping hours are more appropriately served through the supported
home living service component than the supervised living component. With regard
to the commenter's concerns that the department does not recognize, for reimbursement
purposes, the presence of the "on-call" service providers in the supervised
living component, the department responds that the compensation of direct
service providers is a matter of agreement between the program provider agency
and the person hired to provide direct services. The department recognizes
that the direct service provider may be considered by the individuals receiving
services as a live-in companion or roommate. The rule provision, however,
does not require that the service provider not be compensated for being available
to intervene when needed.
One commenter stated the department was unable to provide a clear description
of the supervised living service component because the conditions under which
more than three individuals could share a residence and receive supervised
living was not stated. The commenter noted that the phrase "or other persons
receiving similar services are living at any one time" was particularly vague.
The department responds that in §419.174(49)(B), the rule states that
no more than three individuals receiving supervised living may live in the
residence at any one time. In §419.174(53), the rule requires that if
four individuals will live in a residence, one of the four must require supervision
by awake staff during normal sleeping hours. The department believes these
sections of the rule provide a clear description of the conditions under which
more than three individuals may share a residence. The phrase noted by the
commenter ("or other persons receiving similar services") is intended to provide
for situations in which individuals receiving services through other programs
or sources (e.g., HCS-O program) share a residence with individuals enrolled
in the HCS program. The condition preserves the principle that individuals
living away from their own or family home receive HCS program services in
homes in which the number of residents is limited to three or four.
Referring to the rule's provision at §419.174(51)(D) that the residential
support component "is provided in a residence in which the program provider
holds a property interest," a commenter asked how the provision would affect
situations in which individuals, rather than the program provider, are the
leaseholders of a residence. The department responds that the term "property
interest" denotes the common meaning -- the leaseholder and the owner hold
a property interest in the residence. In the commenter's example, the individuals
hold a property interest in the residence and, therefore, are viewed as living
in their own home. When individuals hold a property interest, residential
assistance would be appropriately provided through the supported home living
service component or companion care service component rather than the residential
support service component.
Two commenters questioned the intent of the provision at §419.174(53)
that states the conditions under which four individuals may live in a single
residence. One of the commenters asked if the program provider would be reimbursed
for providing residential support for each of the individuals (some of whom
may be receiving supervised living) because support by staff who are present
and awake would be available to each of the individuals. In this commenter's
view, it would be problematic if the reimbursement rates for supervised living
and residential support were different as the cost of service would be the
same for all four individuals. The department responds that, at this time,
a differential reimbursement rate based on the number of people served in
a particular residence is not being contemplated. The reimbursement rates
proposed by the department are identical for the residential support and supervised
living components.
A commenter expressed concern that a fourth individual may move into a
residence whose need for the residential support service component is temporary
or cyclical but who would remain "permanently" in the residence when the individual
no longer needs the service. The commenter recommended the addition of provisions
that would accommodate the temporary need for the service. The department
responds that a program provider should not establish a residence for four
individuals in order to meet an individual's temporary need for staff supervision
and support during sleeping hours. It is the department's opinion that the
needs of individuals described by the commenter can be accommodated through
the supervised living component. The department, therefore, declines to add
the recommended revision.
Concerning §419.175(a) and §419.178(b), two commenters recommended
that reference to an individual's LAR be included in the provisions requiring
a program provider's service planning and delivery system to be continually
responsive to changes in an individual's goals and that service delivery on
choices made by individuals. The department has revised the first section
noted by the commenters to state that the provider's service planning and
delivery system be responsive to changes in the individual's condition, abilities,
needs, and to changes in the individual's personal goals as identified by
the individual or the individual's LAR on behalf of the individual. The second
section noted has likewise been revised to state that the service delivery
program is based upon the choices made by each individual or by the individual's
LAR on behalf of the individual.
With regard to §419.175(i) concerning the review of an individual's
status, two commenters requested that the language be revised to state that
the IDT make recommendations to the individual or the individual's LAR rather
than stating the IDT takes action based on its review. The department responds
that the recommended revision will not be made because the stated expectation
that the IDT take action based on its review would include the review and
consideration of recommendations with the individual or LAR.
With regard to the provisions concerning permanent discharge of an individual
from services at §419.176, two commenters asked if the program provider
must have department approval before discharging individuals from the program.
In addition, the commenters asked what could justify an individual being permanently
discharged from the program and questioned whether HCFA would approve of such
discharge. The department responds that the program provider must gain departmental
approval prior to an individual's permanent discharge and that the language
has been revised to more clearly state that the program provider submit the
proposed discharge of an individual to the department for approval. If the
department approves a permanent discharge, the department establishes the
effective date of the discharge. Examples of circumstances under which an
individual may be permanently discharged include the individual's failure
to continue to meet the eligibility criteria (e.g., financial eligibility
is lost or the individual 's plan of care exceeds the cost ceiling), the individual
voluntarily withdraws from the program, or the program provider can no longer
locate the individual. The department notes that federal regulations recognize
that individuals may be discharged from program services and provide that
the individual or the individual's LAR may request a fair hearing if services
are recommended for termination.
Two commenters recommended that the department add the requirement for
program providers to conduct criminal history checks for persons to be employed
by the provider. The department declines to make the recommended revision
as this requirement is included in §419.177(n) of the certification principles
governing personnel operations.
One commenter recommended the department consider strengthening the Life
Safety Code regulations contained in §419.178(e) for four-person facilities
that house persons who need assistance to evacuate. The commenter stated that
the rules do not preclude "a four bed residential unit" from being a manufactured
home, which the commenter pointed out "is not designed to house multiple persons
who cannot self-evacuate." The department responds that it sees no reason
to preclude manufactured housing as a potential residence for four individuals
when all applicable Life Safety Code requirements are met as verified in accordance
with provisions in §419.182 of this rule (relating to Department Approval
of Residences).
One commenter expressed concern over the requirement that the delivery
of direct services be supervised and directed by a person with three years
work experience in planning and providing services to people with mental retardation
or other developmental disabilities. The commenter noted that the individual
currently performing this function for the commenter's program has background
and experience in special education but only five months experience in the
supervision of direct service staff. The commenter questioned if the number
of years of required experience was valid and indicated that providers in
rural locations may have difficulty in employing staff with this amount of
experience. The department responds that the rule requires work experience
in the planning and delivery of services but does not require such experience
to include supervisory functions. Additionally, the department believes the
amount of work experience required is reasonable and will contribute to the
provision of higher quality services for individuals. The department further
responds that the program provider is not restricted in defining this supervisory
relationship as long as the intent of the principle is met. This requirement
parallels that required for the enrollment of new program providers.
One commenter stated that the requirement at §419.178(m) to post the
program provider's name, address, telephone number, effective date of the
program provider's TDMHMR Program Provider Agreement and the legal entity
named on the agreement is contrary to the philosophy of promoting a typical
home environment for individuals. The commenter stated that such a posting
may breach the confidentiality of individuals being served and that foster
or companion care providers may object to such a posting in their own homes.
The department appreciates the commenters concerns but responds that House
Bill 2170 of the 76th Legislature added the requirement to the Texas Human
Resources Code, Chapter 48. This statute governs the conduct of abuse, neglect,
and exploitation investigations by the Texas Department of Protective and
Regulatory Services (TDPRS). To clarify the requirements for the posting,
the department has revised the language at §419.178(m) to indicate that
the posting is required in those residences that are owned or leased by the
program provider or the residential assistance provider.
Two commenters requested that the individual and the individual's LAR be
notified of the findings of TDPRS investigations of abuse, neglect and exploitation
within 10 days of the conclusion of the investigation and that an individual's
LAR be notified of the individual's death as soon as possible but not later
than 24 hours after the death. The department has revised the language at §419.178(n)
to require that the program provider notify the individual and the individual's
LAR that a TDPRS investigation has been concluded and that the individual
or LAR may contact TDPRS to receive a report of the findings and an explanation
of the process to appeal such findings. The department explains that TDPRS
rules govern the disclosure of the findings of its investigations. The department
is currently working with TDPRS to clarify in its rules this department's
authority to direct program providers to release the findings of these investigations.
The department has also revised §419.178(w) to require notification of
an individual's LAR in the event of the individuals death as soon as possible
but no later than 24 hours following the death when the program provider has
reason to believe that the LAR is unaware to the death.
With regard to §419.179, a commenter suggested that the department
consider strengthening the corrective action a program provider must take
when violations related to the provision of health care services are identified.
In this commenter's view, the rules would allow a high number of principles
to be found out of compliance without the application of a sanction against
a program provider. Two other commenters recommended revising the definition
of a hazard to health, safety, or welfare to be a condition that could result
in harm with 24 hours, rather than 48 hours. The department responds that
the provisions of the rule allow the department to apply a sanction when any
number of principles is found to be out of compliance. Subsections 419.179(f)
and (g) provide for the application of sanctions at the department's discretion
when hazardous conditions exist (which would include concerns about health
care services) or when any item of non-compliance is determined to be of a
serious or pervasive nature. The department declines to revise the definition
of a hazard as recommended as this would result in a less stringent standard
and would not improve protection of individuals' safety, health and welfare.
Regarding §419.182, three commenters expressed concerns about the
amount of time required to complete the department's process for the approval
of residences in which four people will live and the potential barriers this
may pose to acquiring residences in a timely manner. One of the commenters
recommended that the program provider be allowed to obtain the department's
approval within 30 days of the initiation of services in the residence while
another requested that the rule state a "turnaround time" frame for the approval.
One commenter stated that the requirement placed the program provider in the
position of leasing property and risking the department's subsequent disapproval
of the lease. The department explains that the purpose of the process to approve
residences where four persons will live and receive services is intended as
a means for the department to verify that a residence meets appropriate fire
safety standards before four individuals occupy a residence and that one of
the four individuals requires assistance of awake staff during normal sleeping
hours. The department recognizes that local inspection processes may be delayed
due to workload or an inspection by the State Fire Marshal's Office may be
required. The department, however, declines to approve such residences in
the absence of documentation of the residences' compliance with stated safety
standards at the time the program provider initiates services in the residence.
To assist in the timely delivery of services, particularly for the transition
period, the department has revised the rules to include a temporary alternative
to a certified inspection report from the fire safety authority having jurisdiction.
The department recommends that program providers become knowledgeable of the
fire safety standards in order to determine if potential residential sites
can be brought into compliance with the requirements. In addition, revisions
have been made at §419.182(a) to clarify that the department's approval
is required if the provider is proposing to serve four individuals living
in the same residence rather than proposing to provide residential support.
The new sections are adopted under the Texas Health and Safety
Code, §532.015(a), which provides the Texas Board of Mental Health and
Mental Retardation 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 delegated to the department the authority to operate the HCS program.
§419.153.Definitions.
The following words and terms, when used in this subchapter, shall
have the following meanings, unless the context clearly indicates otherwise:
(1)
Applicant -- A Texas resident seeking services in the HCS
Program.
(2)
Department -- The Texas Department of Mental Health
and Mental Retardation
(3)
HCS -- The Home and Community-Based Services Program
operated by the department as authorized by the Health Care Financing Administration
(HCFA) in accordance with §1915(c) of the Social Security Act.
(4)
HCS case manager -- An employee of the program provider
who is responsible for the overall coordination and monitoring of services
provided to an individual enrolled in the HCS Program.
(5)
ICF/MR -- The Intermediate Care Facilities Program
for Persons with Mental Retardation or Related Conditions.
(6)
IDT (interdisciplinary team) -- A planning team constituted
by the program provider for each individual consisting of, at a minimum, the
individual and LAR, HCS case manager, and a nurse. Other applicable persons
assigned to provide or who are currently providing direct services to the
individual and, as appropriate, a physician and other professional personnel
may be included as team members as necessary.
(7)
IPC (individual plan of care) -- A document that describes
the type and amount of each HCS program service component to be provided to
an individual and describes medical and other services and supports to be
provided through non-program resources.
(8)
IPC cost -- Estimated annual cost of program services
included on an IPC.
(9)
IPC year -- A 12-month period of time starting on
the date an authorized initial or renewal IPC begins.
(10)
Individual -- A person enrolled in the HCS program.
(11)
ISP (individual service plan) -- A document developed
by the IDT, from which the IPC is derived, which describes the assessments,
recommendations, deliberations, conclusions, justifications and outcomes regarding
the specific services provided to the individual by the program provider.
(12)
LAR (legally authorized representative) -- A person
authorized by law to act on behalf of a person with regard to a matter described
in this subchapter, and may include a parent, guardian, or managing conservator
of a minor, or the guardian of an adult.
(13)
LOC (level of care) -- A determination given to an
individual as part of the eligibility determination process based on data
submitted on the MR/RC Assessment.
(14)
LON (level of need) -- An assignment given by the
department to an individual upon which reimbursement for foster/companion
care, supervised living, residential support and day habilitation is based.
The LON assignment is derived from the service level score obtained from the
administration of the Inventory for Client and Agency Planning (ICAP) to the
individual and from selected items on the MR/RC Assessment.
(15)
MRA (mental retardation authority) -- An entity to
which the Texas Mental Health and Mental Retardation Board delegates its authority
and responsibility within a specified region for planning, policy development,
coordination, and resource development and allocation, and for supervising
and ensuring the provision of mental retardation services to people with mental
retardation in one or more local service areas.
(16)
MR/RC Assessment -- A form used by the department
for LOC determination and LON assignment.
(17)
PDP (person-directed plan) -- A plan developed for
an applicant in accordance with §419.164 of this title (relating to Process
for Enrollment of Applicants) that describes the supports and services necessary
to achieve the desired outcomes identified by the applicant or the applicant's
LAR on behalf of the applicant.
(18)
Program provider -- An entity that provides HCS program
services under a waiver program provider agreement with the department as
defined in Chapter 419, Subchapter O of this title (relating to Enrollment
of Medicaid Waiver Program Providers).
(19)
Service coordinator -- An employee of an MRA responsible
for assisting an individual or the individual's LAR on behalf of the individual
in accessing medical, social, educational, and other appropriate services
including HCS Program services
(20)
Service planning team -- A planning team constituted
by an MRA consisting of an applicant, the applicant's LAR, service coordinator,
and other persons chosen by the applicant and the LAR on behalf of the applicant.
§419.154.Description of the Home and Community-Based Services (HCS) Program.
(a)
The Home and Community-based Services (HCS) program is
a Medicaid waiver program approved by the Health Care Financing Administration
(HCFA) pursuant to §1915(c) of the Social Security Act. It provides community-based
services and supports to eligible individuals as an alternative to the Intermediate
Care Facilities for Persons with Mental Retardation or Related Conditions
(ICF/MR) Program. The HCS program is operated by the Texas Department of Mental
Health and Mental Retardation under the authority of the Texas Health and
Human Services Commission.
(b)
Enrollment in the HCS program is limited to the number
of individuals in specified target groups and to the geographic areas approved
by HCFA.
(c)
HCS program service components, described in §419.174
of this title (relating to Certification Principles: Service Delivery), are
selected for inclusion in an individual's Individual Plan of Care (IPC) to
assure the individual's health and welfare in the community, supplement rather
than replace that individual's natural supports and other community services
for which the individual may be eligible, and prevent the individual's admission
to institutional services. The following service components are available
under the HCS Program:
(1)
case management
(2)
counseling and therapies provided by appropriately
licensed professionals including:
(A)
physical therapy;
(B)
occupational therapy;
(C)
speech and language pathology;
(D)
audiology;
(E)
social work;
(F)
psychology; and
(G)
dietary services;
(3)
nursing care provided by licensed nurses;
(4)
residential assistance, excluding room and board,
provided in one of the following four ways:
(A)
supported home living;
(B)
HCS foster/companion care;
(C)
supervised living; or
(D)
residential support provided in residences serving four
individuals.
(5)
Respite includes room and board when provided
in a setting other than the individual's home. The total amount of reimbursement
for respite available per IPC year cannot exceed an amount equal to 30 multiplied
by the daily reimbursement rate for respite. Respite is not a reimbursable
service for individuals receiving HCS foster/companion care, supervised living,
or residential support.
(6)
Day habilitation is provided exclusive of any other
separately funded service including but not limited to, public school services,
rehabilitative services for persons with mental illness, or programs funded
by the Texas Department of Human Services (TDHS) or the Texas Rehabilitation
Commission (TRC).
(7)
Supported employment may be provided when the service
has been denied or is otherwise unavailable to an individual through a program
operated by a state rehabilitation agency or the public school system. The
maximum reimbursement for supported employment is 150 hourly units per IPC
Year.
(8)
Adaptive aids are provided up to a maximum of $10,000
per IPC year.
(9)
Minor home modifications are provided up to a life-time
maximum of $7,500, after which up to $300 per IPC year is provided for maintenance
or additional modifications.
(10)
Dental services are provided up to a maximum of $1,000
per IPC year.
(d)
The department specifies, through the HCS automated enrollment
and billing system, the counties the program provider is authorized to serve
pursuant to each waiver program provider agreement. The counties specified
for a single provider agreement must be contiguous. The program provider may
enter into more than one provider agreement to provide HCS Program services,
but may have only one provider agreement to provide HCS Program services per
county.
§419.156.Calculation of Co-payment.
(a)
Individuals and eligible couples determined to be financially
eligible based on the special institutional income limit may be required to
share in the cost of HCS Program services. The method for determining the
individual's or couple's co-payment is described in subsections (b) and (c)
of this section and documented on the Texas Department of Human Services (TDHS)
Medical Assistance Only Worksheet.
(b)
The co-payment amount as determined by TDHS is the individual's
or couple's remaining income after all allowable expenses have been deducted.
The co-payment amount is applied only to the cost of home and community-based
services funded through the HCS Program and specified on each individual's
IPC. The co-payment must not exceed the cost of services actually delivered.
The co-payment must be paid by the individual or couple, authorized representative,
or trustee directly to the program provider in accordance with the TDHS determination.
When calculating the co-payment amount for individuals or couples with incomes
that exceed the maximum Personal Needs Allowance the following are deducted:
(1)
the cost of the individual's or couple's maintenance needs
which must be equivalent to the special institutional income limit for eligibility
under the Texas Medicaid program;
(2)
the cost of the maintenance needs of the individual's
or couple's dependent children. This amount is equivalent to the TANF basic
monthly grant for children or a spouse with children, using the recognizable
needs amounts in the TANF Budgetary Allowances Chart; and
(3)
the costs incurred for medical or remedial care which
are necessary but are not subject to payment by Medicare, Medicaid, or any
other third party. These include the cost of health insurance premiums, deductibles,
and co-insurance.
(c)
When calculating the co-payment amount for individuals
with community spouses, TDHS determines the amount of the recipient's income
applicable to payment in accordance with §1924 of the Social Security
Act and 42 CFR 435.726.
§419.157.Individual Plan of Care.
(a)
An initial IPC must be developed for each applicant in
accordance with §419.164 (relating to Process for Enrollment of Applicants)
and reviewed and up-dated for each individual whenever the individual's needs
for services and supports change, but no less than annually, in accordance
with §419.166 (relating to Revisions and Renewals of Individual Plans
of Care (IPCs, Levels of Care (LOCs) and Levels of Need (LONs) for Enrolled
Individuals).
(b)
The IPC must specify the type and amount of each service
component to be provided to the individual, as well as services and supports
to be provided by other sources during the IPC year. The type and amount of
each service component must be supported by:
(1)
documentation that other sources for the service component
are unavailable and the service component does not replace existing supports;
(2)
assessments of the individual that identify specific
service components necessary for the individual to live in the community,
to ensure the individual's health and welfare in the community, and to prevent
the need for institutional services; and
(3)
documentation of deliberations and conclusions of
the service planning team or IDT, as appropriate, that the service components
are necessary for the individual to live in the community, to ensure the individual's
health and welfare in the community, and to prevent the need for institutional
services.
(c)
An individual's IPC must be approved by the department
and is subject to review in accordance with §419.158 (relating to Department
Review of Individual Plan of Care (IPC).
(1)
The IPC must be signed and dated by the required IDT members,
and, for an initial IPC, by the MRA service coordinator indicating concurrence
that the services recommended in the IPC are necessary to prevent institutionalization,
are necessary for the individual to live in the community, and are appropriate
to assure the individual's health and welfare in the community.
(2)
The IPC must be signed and dated in accordance with
subsection (c)(1) of this section prior to submission to the department and
the original must be maintained in the individual's record.
(3)
If the IPC is submitted for approval electronically,
the submitted IPC must contain information identical to that on the signed
copy of the IPC.
(d)
The program provider must provide services in accordance
with an individual's approved IPC.
(e)
The program provider must retain in the individual's record
results and recommendations of individualized assessments that support the
individual's current need for each service component included in the IPC.
§419.158.Department Review of Individual Plan of Care (IPC).
(a)
The department may review supporting documentation specified
in §419.157(b) of this title (relating to Individual Plan of Care) at
any time to determine if the type and amount of HCS program services specified
in an IPC are appropriate. The program provider must submit documentation
supporting the IPC to the department in accordance with the department's request.
The department may modify an IPC based on its review.
(b)
Before approving an IPC having an IPC Cost that exceeds
100% of the estimated annualized average per capita cost for ICF/MR services,
the department will review the IPC to determine if the type and amount of
HCS program services specified in the IPC are appropriate and supported by
documentation specified in §419.157(b) of this title (relating to Individual
of Plan of Care). A recommended IPC with such an IPC Cost must be signed,
dated, and submitted to the department with documentation supporting the IPC,
as described in §419.157 of this title (relating to Individual Plan of
Care) prior to the electronic submission of the IPC. After reviewing the supporting
documentation, the department may request additional documentation. The department
will review any additional documentation submitted in accordance with its
request, and electronically approve the recommended IPC or send written notification
that the recommended IPC has been approved with modifications.
§419.161.Level of Need Assignment.
(a)
LON for an individual must be requested from the department
by electronically transmitting a completed MR/RC Assessment, indicating the
recommended LON and, as appropriate, submitting supporting documentation as
specified §419.162(b) and (c) of this title (relating to Department Review
of Level of Need (LON)).
(b)
Documentation supporting the recommended LON must be maintained
in the individual's record. Such documentation may include but is not limited
to the individual's ISP, including the deliberations and conclusions of the
individual's service planning team or IDT, the individual's ICAP assessment
booklet and PDP, assessments and interventions by qualified professionals,
behavioral intervention plans, and time sheets of program provider staff.
(c)
The department will assign a LON to an individual based
on the individual's ICAP service level score, information reported on the
individual's MR/RC Assessment and required supporting documentation. Documentation
supporting a recommended LON must be submitted to the department in accordance
with department guidelines.
(d)
The department will assign one of five LONs as follows:
(1)
An intermittent LON (LON 1) will be assigned if the individual's
ICAP service level score equals 7, 8 or 9;
(2)
A limited LON (LON 5) will be assigned if the individual's
ICAP service level score equals 4, 5 or 6;
(3)
An extensive LON (LON 8) will be assigned if the individual's
ICAP service level score equals 2 or 3;
(4)
A pervasive LON (LON 6) will be assigned if the individual's
ICAP service level score equals 1; and
(5)
Regardless of an individual's ICAP service level score,
a pervasive plus LON (LON 9) will be assigned if the individual meets the
criteria set forth in subsection (f) of this section.
(e)
A LON 1, 5, or 8, determined in accordance with subsection
(d) of this section, will be increased to the next LON by the department,
due to an individual's dangerous behavior, if supporting documentation submitted
to the department proves that:
(1)
the individual exhibits dangerous behavior that could cause
serious physical injury to the individual or others;
(2)
a written behavior intervention plan has been implemented
that meets department guidelines and is based on ongoing written data, targets
the dangerous behavior with individualized objectives, and specifies intervention
procedures to be followed when the behavior occurs;
(3)
more staff members are needed and available than would
be needed if the individual did not exhibit dangerous behavior;
(4)
staff members are constantly prepared to physically
prevent the dangerous behavior or intervene when the behavior occurs; and
(5)
the individual's MR/RC Assessment is correctly scored
with a "1" in the "Behavior" section.
(f)
A LON 9 will be assigned by the department if supporting
documentation submitted to the department proves that:
(1)
the individual exhibits extremely dangerous behavior that
could be life threatening to the individual or to others;
(2)
a written behavior intervention plan has been implemented
that meets department guidelines and is based on ongoing written data, targets
the extremely dangerous behavior with individualized objectives, and specifies
intervention procedures to be followed when the behavior occurs;
(3)
management of the individual's behavior requires a
staff member to exclusively and constantly supervise the individual during
the individual's waking hours, which must be at least 16 hours per day;
(4)
the staff member assigned to supervise the individual
has no other duties during such assignment; and
(5)
the individual's MR/RC Assessment is correctly scored
with a "2" in the "Behavior" section.
§419.164.Process for Enrollment of Applicants.
(a)
An applicant or the applicant's LAR on behalf of the applicant
must submit a written request for HCS Program services to the MRA serving
the area where the applicant wishes to receive services.
(1)
The MRA must register the applicant on the MRA's waiting
list as specified in §419.165 of this title (relating to Maintenance
of HCS Program Waiting List).
(2)
Upon written notification by the department of a program
vacancy in the MRA's local service area, the MRA notifies the first applicant
on the waiting list of the vacancy and begins the enrollment process by informing
the applicant or the LAR of the applicant's right to choose between participation
in the ICF/MR Program in a state school setting or a community-based setting,
the HCS Program, or other services. The MRA must document the applicant's
choice of programs or the LAR's choice on behalf of the applicant on the HCS
Verification of Choice form. Copies of the HCS Verification of Choice form
are available by contacting the Texas Department of Mental Health and Mental
Retardation, Office of Medicaid Administration, P.O. Box 12668, Austin, Texas
78711-2668.
(3)
If the applicant or the LAR chooses participation
in the HCS Program, the MRA will assign a service coordinator who develops
a person-directed plan (PDP) in conjunction with the service planning team.
The service planning team must include the applicant and the LAR acting on
the applicant's behalf and may include other persons chosen by the applicant
and the LAR. At minimum, the PDP must include the following:
(A)
a description of the applicant's current services and supports,
identifying those that will be available if the applicant is enrolled in the
HCS Program;
(B)
a description of outcomes to be achieved for the applicant
through the HCS Program, including determinations of further service needs
through assessments to be accomplished after enrollment, and justification
for each service component to be included in the IPC;
(C)
documentation that the type and amount of each service
component included in the individual's IPC:
(i)
are necessary for the individual to live in the community,
to ensure the individual's health and welfare in the community, and to prevent
the need for institutional services;
(ii)
do not replace existing natural supports or other non-program
sources for the service components; and
(iii)
when the proposed IPC includes residential support, the
reasons that the team concluded that supervision and assistance from awake
service providers during normal sleeping hours are required to assure the
individual's health and welfare including but not limited to the individual's
demonstrated needs for staff intervention to respond to:
(I)
the individual's medical condition;
(II)
a behavior displayed by the individual that poses a danger
to the individual or to others; or
(III)
the individual's need for assistance with activities
of daily living during normal sleeping hours;
(D)
a description of all determinations needed to establish
the applicant's eligibility for SSI or Medicaid benefits and for a LOC; and
(E)
a description of actions and methods to be used to reach
identified service outcomes, projected completion dates, and person(s) responsible
for completion.
(4)
The MRA compiles and maintains information necessary
to process the applicant's request, or LAR's request on behalf of the applicant,
for enrollment in the HCS Program.
(A)
If the applicant's financial eligibility for the HCS Program
must be established, the MRA initiates, monitors, and supports the processes
necessary to obtain a financial eligibility determination.
(B)
The MRA must complete an MR/RC Assessment if a LOC determination
is necessary, in accordance with §419.159 and §419.161 of this title
(relating to Level of Care (LOC) Determination and Level of Need Assignment,
respectively).
(i)
The MRA must perform or endorse a determination that the
applicant has mental retardation in accordance with Chapter 405, Subchapter
D of this title (relating to Determination of Mental Retardation and Appropriateness
for Admission to Mental Retardation Services); or
(ii)
The MRA must verify that the applicant has been diagnosed
by a licensed physician as having a related condition as defined in §406.202
of this title (relating to Definitions); and
(iii)
The MRA must administer the ICAP and recommend a LON
assignment to the department in accordance with §§419.161 and 419.162
of this title (relating Level of Need Assignment and Department Review of
Level of Need (LON), respectively).
(C)
The MRA must develop a proposed IPC with the applicant
or the LAR based on the PDP and in accordance with this subchapter.
(5)
The service coordinator must inform the applicant
or the LAR of all available HCS program providers in the local service area.
The service coordinator must:
(A)
provide information to the applicant or the LAR regarding
program providers in the MRA's local service area;
(B)
review the proposed IPC with potential program providers
as requested by the applicant or the LAR;
(C)
arrange for meetings/visits with potential program providers
as desired by the applicant or the LAR;
(D)
assure that the applicant's or LAR's choice of a program
provider is documented, signed by the applicant or the LAR, and retained by
the MRA in the applicant's record; and
(E)
negotiate/finalize the proposed IPC and the date services
will begin with the selected program provider. If the service coordinator
and the selected program provider are unable to agree on the proposed IPC,
the service coordinator and program provider will consult jointly with the
department to achieve resolution.
(b)
When the proposed IPC is finalized and the selected program
provider has agreed to deliver the services delineated on the IPC, the MRA
will submit the enrollment information to the department. When appropriate,
the MRA will also submit supporting documentation as required in §419.158(b)
of this title (relating to Department Review of Individual Plan of Care (IPC))
and §419.162(b) of this title (relating to Department Review of Level
of Need (LON)).
(c)
The department will notify the applicant or the LAR, the
selected program provider, and the MRA of its approval or denial of the applicant's
enrollment. When enrollment is approved, the department must authorize the
applicant's enrollment in the HCS Program through the automated enrollment
and billing system and issue an enrollment letter that includes the effective
date of the applicant's enrollment in the HCS Program.
(d)
Upon notification of an applicant's enrollment approval,
the MRA must provide the selected program provider copies of all enrollment
documentation, and associated supporting documentation including relevant
assessment results and recommendations and the applicant's PDP.
(e)
The selected program provider must not initiate services
until notified of the department's approval of the individual's enrollment.
(f)
The selected program provider must develop an initial ISP
in accordance with §419.174 of this title (relating to Certification
Principles: Service Delivery) based on the PDP and IPC as developed by the
service planning team.
(g)
When the department assigns a program vacancy to an applicant
who is a member of a specific target group identified in the approved waiver,
the MRA must assist the applicant with the enrollment process in accordance
with this section.
§419.165.Maintenance of HCS Program Waiting List.
The local MRA must maintain an up-to-date waiting list of applicants
living in and waiting to receive HCS Program services in the MRA's local service
area.
(1)
The MRA must assign an applicant's placement on the waiting
list chronologically by date of request for HCS Program services.
(2)
The MRA must provide written notification to HCS program
providers in its local service area of the process that program providers
should use to refer applicants who wish to be placed on the HCS Program waiting
list.
(3)
The MRA must remove an applicant's name from the waiting
list only if it is documented that:
(A)
written permission has been obtained from of the applicant
or the LAR to remove the individual's name from the waiting list;
(B)
the applicant is deceased;
(C)
the applicant moved out of the local service area;
(D)
the department has denied the applicant enrollment and
the applicant or the LAR has had an opportunity to exercise the applicant's
right to appeal the decision according to §419.169 of this title (relating
to Fair Hearing);
(E)
the applicant's name has been transferred in accordance
with subparagraph (4) of this section;
(F)
the applicant or the applicant's LAR has not responded
to the MRA's notification of a program vacancy within sixty calendar days
of the date of the MRA's notification;
(G)
the applicant or the applicant's LAR chooses participation
in the ICF/MR Program instead of in the HCS Program when offered this choice
in accordance with §419.164(a) of this title (relating to Process for
Enrollment of Applicants) or;
(H)
the applicant or the applicant's LAR refuses HCS services.
(4)
At the written request of an applicant or the
LAR of an applicant who moves to the local service area of a different MRA,
the original MRA must provide the applicant's name and date of request for
HCS Program services to the MRA in the local service area where the applicant
has moved. The MRA receiving the information must add the applicant's name
to its waiting list using the date of the request for HCS Program services
provided by the transferring MRA.
§419.166.Revisions and Renewals of Individual Plans of Care (IPCs), Levels of Care (LOCs) and Levels of Need (LONs) for Enrolled Individuals.
(a)
At least annually, and prior to the expiration of an individual's
IPC, the individual's IDT must review the ISP and IPC to determine whether
individual outcomes and services previously identified remain relevant.
(1)
The IDT must initiate revisions to the IPC in response
to changes in the individual's needs as documented in the current ISP.
(2)
The ISP must include documentation that the type and
amount of each service component included in the individual's IPC:
(A)
are necessary for the individual to live in the community,
to ensure the individual's health and welfare in the community, and to prevent
the need for institutional services;
(B)
do not replace existing natural supports or other non-program
sources for the service components; and
(C)
when the proposed IPC includes residential support, the
reasons that the team concluded that supervision and assistance from awake
service providers during normal sleeping hours are required to assure the
individual's health and welfare including but not limited to the individual's
demonstrated needs for staff intervention to respond to:
(i)
the individual's medical condition;
(ii)
a behavior displayed by the individual that poses a danger
to the individual or to others; or
(iii)
the individual's need for assistance with activities
of daily living during normal sleeping hours.
(3)
The program provider must submit annual
reviews and necessary revisions of the IPC to the department for approval.
(4)
The program provider must submit supporting documentation
in accordance with §419.158 (relating to Department Review of Individual
Plan of Care (IPC)).
(b)
Prior to the expiration date of an individual's LOC determination,
the program provider must request department approval to renew an individual's
LOC and LON by submitting an MR/RC Assessment to the department.
(1)
The program provider must re-administer the ICAP to an
individual under the following circumstances and must submit an MR/RC Assessment
to the department recommending a revision of the individual's LON assignment
if the ICAP results and MR/RC Assessment indicate a revision of the individual's
LON assignment may be appropriate. The ICAP must be re-administered:
(A)
at least three years after the individual's enrollment
and every third year thereafter;
(B)
if changes in an individual's functional skills or behavior
occur that are not expected to be of short duration or cyclical in nature
or;
(C)
if the individual's skills and behavior are inconsistent
with individual's assigned LON.
(2)
As appropriate, the program provider must submit
supporting documentation to the department in accordance with §419.162(b)
(relating to Department Review of Level of Need (LON)).
(3)
The provider must retain in the individual's record
results and recommendations of individualized assessments and other pertinent
records documenting the recommended LON assignment
§419.169.Fair Hearing.
Any individual whose request for eligibility for the HCS Program is
denied or is not acted upon with reasonable promptness, or whose services
have been terminated, suspended or reduced by the department is entitled to
a fair hearing in accordance with Chapter 419, Subchapter G of this title
(relating to Medicaid Fair Hearings).
§419.172.Certification Principles: Mission, Development, and Philosophy of Program Operations.
The program provider must:
(1)
implement a teaching and training philosophy that emphasizes
improved, independent functioning for each individual;
(2)
ensure that each individual's humanity and dignity
is respected;
(3)
ensure that the rights of the individual or the individual's
rights as exercised by the LAR on behalf of the individual are protected;
(4)
ensure that the individual, the individual's LAR,
and family members, with the consent of the individual or the individual's
LAR, participate in making choices about where the individual will live, attend
school, work, and take part in leisure activities.
§419.173.Certification Principles: Rights of Individuals.
(a)
The program provider shall assist the:
(1)
individual, or the LAR on behalf of the individual, in
exercising the same rights and responsibilities exercised by people without
disabilities; and
(2)
individual's LAR or family members in encouraging
the individual to exercise the same rights and responsibilities exercised
by people without disabilities.
(b)
The program provider shall protect and promote the following
rights of the individual:
(1)
to manage, be trained to manage or have assistance in managing
financial affairs upon documentation of the individual's written request for
assistance;
(2)
to access public accommodations;
(3)
to be informed of requirements for participation;
(4)
to be informed both orally and in writing of all the
HCS Program services available and rules pertaining to the individual's enrollment
and participation in the program provider's program as well as any changes
in these that occur;
(5)
to be informed of the individual's ISP and IPC including
any restrictions affecting the individual's rights;
(6)
to participate in decisions and be informed of the
reasons for decisions regarding plans for enrollment, service termination,
transfer, relocation, or denial of HCS Program services;
(7)
to be informed about the individual's own health,
mental condition, and related progress;
(8)
to be informed of the name and qualifications of any
person serving or treating the individual and to choose among various available
service providers;
(9)
to receive visitors without prior notice to the program
provider unless such rights are contraindicated by the individual's rights
or the rights of other individuals;
(10)
to have privacy in visitation with family and other
visitors;
(11)
to make and receive telephone calls;
(12)
to send and to receive sealed and uncensored mail;
(13)
to attend religious activities of choice;
(14)
to participate in developing a pre-discharge plan
that addresses assistance for the individual after he or she leaves the program;
(15)
to be free from restraints;
(16)
to live in a normative residential living environment;
(17)
to access free public schooling according to the
Texas Education Code;
(18)
to live where the individual is within proximity
of and can access treatment and services that are best suited to meet the
individual's needs and abilities and enhance that individual's strengths;
(19)
to have a personalized ISP and IPC based on individualized
assessments that meet the individual's needs and abilities and enhance that
individual's strengths;
(20)
to help decide what the ISP will be;
(21)
to be informed as to the progress and/or lack of
progress being made in the execution of the ISP;
(22)
to choose from the same services that are available
to all community members;
(23)
to be evaluated as needed, but at least annually,
to determine the individual's strengths, needs, preferences, and appropriateness
of the ISP;
(24)
to complain at any time to any member of the program
provider's personnel;
(25)
to receive appropriate support and encouragement
from any member of the program provider's personnel if the individual dislikes
or disagrees with the services being rendered or thinks that his or her rights
are being violated;
(26)
to live free from abuse, neglect or exploitation
in a healthful, comfortable, and safe environment;
(27)
to participate in decisions regarding the individual's
living environment including location, furnishings, other individuals residing
in the residence, and moves to other residential locations;
(28)
to have personnel who are accountable to the individual
and, at the same time, are responsible to the overall functioning of the HCS
Program;
(29)
to have active personal assistance in exercising
civil and self-advocacy rights attainment by provisions for:
(A)
complaints,
(B)
voter's registration,
(C)
citizenship information and education,
(D)
advocacy services, and
(E)
guardianship;
(30)
to receive counseling concerning the use of
money;
(31)
to possess and to use money in personal and individualized
ways or be learning to do so;
(32)
to access all financial records regarding the individual's
funds;
(33)
to have privacy during treatment and care of personal
needs;
(34)
to have privacy during visits by his or her spouse
if living apart;
(35)
to share a room when both the husband and wife are
living in the same residence;
(36)
to be free from serving as a source of labor when
residing with persons other than family members;
(37)
to communicate, associate and to meet privately with
individuals of his or her choice, unless this violates the rights of another
individual;
(38)
to participate in social, recreational, and community
group activities;
(39)
to have his or her LAR involved in activities including
but not limited to:
(A)
being informed of all rights and responsibilities when
the individual is enrolled in the program provider's program as well as of
any changes in rights or responsibilities before they become effective;
(B)
participating in the planning for HCS Program services;
and
(C)
advocating for all rights of the individual;
(40)
to be informed of the individual's option to
transfer to other HCS Programs as chosen by the individual or LAR as often
as desired;
(41)
to be informed orally and in writing of any charges
assessed by the provider against the individual's personal funds, the purpose
of those charges, and effects of the charges in relation to the individual's
financial status;
(42)
to complain to the department when the provider's
resolution of a complaint is unsatisfactory to the individual or LAR, and
to be informed of the TDMHMR telephone number to initiate complaints (1-800-252-8154).
(c)
The program provider shall provide the individual, the
individual's LAR, or family member, with a written copy of those rights listed
in subsection (b) of this section.
(d)
The program provider shall document that the individual,
LAR, or family member is informed orally of the rights described in subsection
(b) of this section and is presented with a current copy of those rights:
(1)
upon enrollment of the individual in the program provider's
program;
(2)
upon revisions of subsection (b) of this section by
the department; and
(3)
upon request.
(e)
The documentation required in subsection (d) of this section
shall be signed by:
(1)
the individual or the individual's LAR;
(2)
the program provider or employee who explained the
rights to the individual, LAR, or family member; and
(3)
a third-party witness.
§419.174.Certification Principles: Service Delivery.
The program provider shall:
(1)
serve eligible applicants who have chosen the program provider
on a zero-reject basis;
(2)
serve eligible applicants without regard to age, sex,
race or level of disability;
(3)
provide or obtain as needed and without delay all
HCS Program services;
(4)
ensure that each applicant or individual, or LAR on
behalf of the applicant or individual, has chosen where the individual or
applicant is to reside from available options consistent with the individual's
needs;
(5)
encourage involvement of the individual's LAR or family
members and friends in all aspects of the individual's life and provide as
much assistance and support as is possible and constructive;
(6)
ensure that a minor individual who is unable to live
in the natural or adoptive family home is supported in a family-like environment,
such as a foster family;
(7)
justify the reasons for serving a minor individual
outside the natural or adoptive family home;
(8)
make every possible effort to return a minor individual
being served outside his or her natural or adoptive family home to his or
her family home as soon as possible;
(9)
allow the individual's family members and friends
access to an individual without arbitrary restrictions unless exceptional
conditions are justified by the individual's IDT, documented in the ISP, and
approved by program provider's chief executive officer;
(10)
ensure that an individual's residential, educational,
and work settings are changed as necessitated by changes in the individual's
age, skills, attitudes, likes, dislikes, and conditions;
(11)
ensure that the individual who is living outside
the family home is living in a residence that maximizes opportunities for
interaction with community members to the greatest extent possible;
(12)
ensure that each individual has a current:
(A)
IPC;
(B)
ISP; and
(C)
LOC and LON;
(13)
ensure that the ISP of each individual is different
from others and reflects the results of assessments of the individual's and
his or her family's strengths, the individual's personal goals and the family's
goals for the individual, and the individual's needs rather than what services
are available;
(14)
ensure that the ISP of each individual includes objectives
derived from assessments of the individual's strengths, personal goals, and
needs and are described in observable, measurable, or outcome-oriented terms;
(15)
ensure that the ISP and IPC for each individual is
reviewed and completed at least annually by the:
(A)
individual;
(B)
individual's LAR or members of the individual's family,
as appropriate; and
(C)
other members of the IDT, as described in §419.175
of this title (relating to Certification Principles: Interdisciplinary Team
Operations);
(16)
ensure that each individual's progress or lack
of progress toward goals and objectives is documented in observable, measurable,
or outcome-oriented terms;
(17)
ensure that each individual has opportunities to
develop relationships with peers with and without disabilities and receives
support when the individual chooses to develop such relationships;
(18)
unless contraindications are documented with justification
by the IDT, ensure that a school-age individual receives educational services
in a six-hour-per-day program five days a week provided by the local school
district and that no individual receives educational services at a state school/state
center educational setting;
(19)
unless contraindications are documented with justification
by the IDT, ensure that an adult individual under retirement age is participating,
based on choice, in a day activity which promotes achievement of ISP outcomes
for at least six hours per day, five days per week;
(20)
ensure that individuals who perform work for the
program provider are paid on the basis of their production or performance
and at a wage level commensurate with that paid to persons who are without
disabilities and who would otherwise perform that work. Compensation is based
on local, state and federal regulations, including Department of Labor regulations,
as applicable;.
(21)
ensure that individuals who produce marketable goods
and services in habilitation training programs are paid at a wage level commensurate
with that paid to persons who are without disabilities and who would otherwise
perform that work. Compensation is based on requirements contained in the
Fair Labor Standards Act which include:
(A)
accurate recordings of individual production or performance;
(B)
valid and current time studies or monitoring as appropriate;
and
(C)
prevailing wage rates;
(22)
ensure that individuals provide no training,
supervision or care to other individuals unless they are qualified and compensated
in accordance with local, state and federal regulations, including Department
of Labor regulations;
(23)
unless contraindications are documented with justification
by the IDT, ensure that a pre-school-age individual receives an early childhood
education with appropriate activities and services, including but not limited
to small group and individual play with peers without disabilities;
(24)
unless contraindications are documented with justification
by the IDT, ensure that an individual's routine provides opportunities for
leisure time activities, vacation periods, religious observances, holidays,
and days-off, consistent with the individual's choice and the routines of
other members of the community;
(25)
unless contraindications are documented with justification
by the IDT, ensure that an individual of retirement age has opportunities
to participate in day activities appropriate to individuals of the same age
and consistent with an individual's or his or her LAR's choice;
(26)
unless contraindications are documented with justification
by the IDT, ensure that each individual is offered choices and opportunities
for accessing and participating in community activities and experiences available
to peers without disabilities;
(27)
assist the individual to meet as many of his or her
needs as possible by using generic community services and resources in the
same way and during the same hours as these generic services are used by the
community at large;
(28)
ensure that each individual lives in a home that
is a typical residence within the community;
(29)
ensure that the residence, neighborhood and community
meet the needs and choices of each individual and provide an environment that
assures the health, safety, comfort and welfare of the individual;
(30)
unless contraindications are documented with justification
by the IDT, assist an individual to live near family and friends and needed
or desired community resources consistent with the individual's choice, if
possible;
(31)
ensure that an individual experiences residential
relocation in a planned manner as indicated by his or her needs;
(32)
provide adaptive aids including the full range of
lifts, mobility aids, control switches/pneumatic switches and devices, environmental
control units, medically necessary supplies, and communication aids and repair
and maintenance of the aids as determined by the individual's needs and in
compliance with the definition in the
HCS Service
Definitions and Billing Guidelines
;
(33)
ensure that adaptive aids costing less than $500
each are authorized by the IDT and that adaptive aids costing more than $500
each are authorized by the IDT based on written evaluations and recommendations
by the individual's physician, a licensed occupational or physical therapist,
a psychologist, a licensed nurse, a licensed dietician, or a licensed speech
and language pathologist qualified to assess the individual's need for the
specific adaptive aid;
(34)
ensure that the HCS case manager is employed by the
program provider, serves no more than 30 individuals, and that case management
is available as determined by individual need;
(35)
provide case management in compliance with the definition
in the
HCS Service Definitions and Billing Guidelines
including:
(A)
coordinating the development and implementation of the
individual's ISP;
(B)
coordinating the delivery of the individual's IPC;
(C)
coordinating and monitoring the delivery of HCS Program
services and services from other sources;
(D)
integrating various aspects of services delivered under
the HCS Program and through other sources;
(E)
recording each individual's progress or lack of progress;
(F)
developing a pre-discharge plan;
(G)
record keeping; and
(H)
arranging transportation;
(36)
ensure that the HCS case manager provides only
case management and that the provision of such is exclusive of any other assignments
or services pertaining to an individual;
(37)
ensure that the primary purpose of case management
is to provide a single identified person accountable to the individual and
his or her LAR for coordinating the individual's overall program;
(38)
ensure that the individual and his or her LAR are
informed of the name and telephone number of the HCS case manager and are
informed whenever there is a change in the case manager or the case manager's
telephone number;
(39)
ensure that the HCS case manager informs the individual
and his or her LAR about the individual's ISP, the individual and his or her
LAR agree to changes in the individual's ISP prior to implementing the changes,
and the HCS case manager is available to answer questions asked by the individual
or by his or her LAR about the ISP;
(40)
provide the following counseling and therapy services
in compliance with the definition in the
HCS Service
Definitions and Billing Guidelines
as determined by individual needs:
(A)
audiology services;
(B)
speech/language pathology services;
(C)
occupational therapy services;
(D)
physical therapy services;
(E)
dietary services;
(F)
social work services; and
(G)
psychology services;
(41)
provide day habilitation, which may not include
services funded by other sources such as §110 of the Rehabilitation Act
of 1973 or §602(16) and (17) of the Individuals with Disabilities Education
Act, as determined by the individual's needs and in compliance with the definition
in the
HCS Service Definitions and Billing Guidelines
including:
(A)
assisting individuals in acquiring, retaining, and improving
self-help, socialization, and adaptive skills necessary to reside successfully
in the community;
(B)
providing individuals with age-appropriate activities that
enhance self-esteem and maximize functional level;
(C)
complementing any counseling and therapies listed in the
IPC;
(D)
reinforcing skills or lessons taught in school, therapy,
or other settings;
(E)
training and support activities which promote the individual's
integration and participation in the community;
(F)
providing assistance for the individual who cannot manage
his or her personal care needs during day habilitation activities; and
(G)
providing transportation during day habilitation activities
as necessary for the individual's participation in day habilitation activities;
(42)
ensure that dental treatment is provided as
determined by individual needs and is delivered in compliance with the
(A)
emergency dental treatment;
(B)
preventive dental treatment;
(C)
therapeutic dental treatment; and,
(D)
orthodontic dental treatment, excluding cosmetic orthodontia;
(43)
provide minor home modifications when determined
necessary by the IDT for the health and safety of the individual and in compliance
with the
HCS Service Definitions and Billing Guidelines
including:
(A)
purchase and repair of wheelchair ramps;
(B)
modifications to bathroom facilities;
(C)
modifications to kitchen facilities; and
(D)
specialized accessibility and safety adaptations/additions,
including repair and maintenance;
(44)
provide nursing services as determined by individual
needs and in compliance with the
HCS Service Definitions
and Billing Guidelines
and ensure that nursing services consist of
performing health care procedures and monitoring the individual's health conditions,
including:
(A)
administering medication;
(B)
monitoring the individual's use of medications;
(C)
monitoring health data and information;
(D)
assisting the individual to secure emergency medical services;
(E)
making referrals for appropriate medical services;
(F)
performing health care procedures ordered or prescribed
by a physician or medical practitioner and required by standards of professional
practice or law to be performed by licensed nursing personnel; and
(G)
delegating and monitoring of tasks assigned to other service
providers by a registered nurse in accordance with state law;
(45)
ensure that supported home living is available
to an individual living in his or her own home or the home of his or her natural
or adoptive family members, or to an individual receiving foster care services
from TDPRS;
(46)
ensure that supported home living is provided in
accordance with the definition in the
HCS Service
Definitions and Billing Guidelines
and includes the following elements:
(A)
direct personal assistance with activities of daily living
(grooming, eating, bathing, dressing, and personal hygiene);
(B)
assistance with meal planning and preparation;
(C)
securing and providing transportation;
(D)
assistance with housekeeping;
(E)
assistance with ambulation and mobility;
(F)
reinforcement of counseling and therapy activities;
(G)
assistance with medications and the performance of tasks
delegated by a Registered Nurse;
(H)
supervision of individuals' safety and security;
(I)
facilitating inclusion in community activities, use of
natural supports, social interaction, participation in leisure activities,
and development of socially valued behaviors; and
(J)
habilitation, exclusive of day habilitation;
(47)
ensure that HCS foster/companion care is provided:
(A)
by a foster/companion care provider who lives in the residence
in which no more than three individuals or other persons receiving similar
services are living at any one time; and
(B)
in a residence in which the program provider does not hold
a property interest;
(48)
ensure that HCS foster/companion care is provided
in accordance with the definition in the
HCS Service
Definitions and Billing Guidelines
and includes:
(A)
direct personal assistance with activities of daily living
(grooming, eating, bathing, dressing, and personal hygiene);
(B)
assistance with meal planning and preparation;
(C)
securing and providing transportation;
(D)
assistance with housekeeping;
(E)
assistance with ambulation and mobility;
(F)
reinforcement of counseling and therapy activities;
(G)
assistance with medications and the performance of tasks
delegated by a Registered Nurse;
(H)
supervision of individuals' safety and security;
(I)
facilitating inclusion in community activities, use of
natural supports, social interaction, participation in leisure activities,
and development of socially valued behaviors; and
(J)
habilitation, exclusive of day habilitation;
(49)
ensure that supervised living is provided:
(A)
by a supervised living provider who provides services and
supports as needed by individuals and is present in the residence and able
to respond to the needs of individuals during normal sleeping hours;
(B)
in a residence in which no more than three individuals
receiving supervised living or other persons receiving similar services are
living at any one time; and
(C)
in a residence in which the program provider holds a property
interest;
(50)
ensure that supervised living is provided in
accordance with the definition contained in the
HCS Service Definitions and Billing Guidelines
and includes:
(A)
direct personal assistance with activities of daily living
(grooming, eating, bathing, dressing, and personal hygiene);
(B)
assistance with meal planning and preparation;
(C)
securing and providing transportation;
(D)
assistance with housekeeping;
(E)
assistance with ambulation and mobility;
(F)
reinforcement of counseling and therapy activities;
(G)
assistance with medications and the performance of tasks
delegated by a Registered Nurse;
(H)
supervision of individuals' safety and security;
(I)
facilitating inclusion in community activities, use of
natural supports, social interaction, participation in leisure activities,
and development of socially valued behaviors; and
(J)
habilitation, exclusive of day habilitation.
(51)
ensure that residential support is provided:
(A)
by a residential support provider who is present in the
residence and awake whenever an individual is present in the residence;
(B)
by residential support providers assigned on a daily shift
schedule that includes at least one complete change of provider staff each
day;
(C)
in a residence in which no more than four individuals and
other persons receiving similar services are living at any one time and which
is approved in accordance with §419.182 of this subchapter (relating
to Department Approval of Residences); and
(D)
in a residence in which the program provider holds a property
interest;
(52)
ensure that residential support is provided
in accordance with the definition contained in the
HCS Service Definitions and Billing Guidelines
and includes the following
elements:
(A)
direct personal assistance with activities of daily living
(grooming, eating, bathing, dressing, and personal hygiene);
(B)
assistance with meal planning and preparation;
(C)
securing and providing transportation;
(D)
assistance with housekeeping;
(E)
assistance with ambulation and mobility;
(F)
reinforcement of counseling and therapy activities;
(G)
assistance with medications and the performance of tasks
delegated by a Registered Nurse;
(H)
supervision of individuals' safety and security;
(I)
facilitating inclusion in community activities, use of
natural supports, social interaction, participation in leisure activities,
and development of socially valued behaviors; and
(J)
habilitation, exclusive of day habilitation;
(53)
if four individuals and other persons receiving
similar services live in a residence at any one time, ensure that residential
support is justified and provided as specified on the approved IPC for at
least one of the individuals;
(54)
ensure that respite is available on a 24-hour increment
or any part of that increment to individuals living in their family homes
and are provided as determined by individual needs;
(55)
ensure that respite is provided in compliance with
the definition contained in the
HCS Service Definitions
and Billing Guidelines
and includes:
(A)
training in self-help and independent living skills;
(B)
provision of room and board when respite is provided in
a setting other than the individual's normal residence;
(C)
support for individuals who are eligible for respite and
who are in need of emergency or planned short-term care;
(D)
assistance with on-going provision of needed waiver services,
excluding supported home living; and
(E)
assistance with securing and providing transportation;
(56)
provide respite in the residence of an individual
or in other locations, including residences in which HCS foster/companion
care, supervised living, or residential support is provided or in a respite
facility, that meet HCS programmatic requirements and afford an environment
that ensures the health, safety, comfort, and welfare of the individual;
(A)
If respite is provided in the residence of another individual,
the program provider must obtain permission from that individual or the individual's
LAR and ensure that the interdisciplinary team for each individual makes a
determination that the respite visit will cause no threat to the health, safety
and welfare, or rights and needs of that individual;
(B)
If respite is provided in the residence of another individual,
the provider must ensure that:
(i)
no more than three individuals receiving HCS program services
and persons receiving similar services for which the provider is reimbursed
are served in a residence in which HCS foster/companion care is provided;
(ii)
no more than three individuals receiving HCS program services
and persons receiving similar services for which the provider is reimbursed
are served in a residence in which only supervised living is provided; and
(iii)
no more than four individuals receiving HCS program services
and persons receiving similar services for which the provider is reimbursed
are served in a residence in which residential support is provided;
(C)
If respite is provided in a respite facility, the provider
must:
(i)
ensure that the facility is not a residence,
(ii)
ensure that no more than six individuals receive services
in the facility at any one time and,
(iii)
obtain written approval from the local fire authority
having jurisdiction stating that the facility and its operation meet the local
fire ordinances before initiating services in the facility when more than
three individuals receive services in the facility at any one time;
(D)
The provider must not provide respite services in an institution;
(57)
provide supported employment (employment in
an integrated work setting -- generally a setting where no more than one employee
or 3% of the work force members have disabilities) as determined by individual
needs and ensure that supported employment, provided away from the individual's
residence, is delivered in compliance with the definition contained in the
(A)
on-going individualized support services needed to sustain
paid work by the individual, including supervision and training;
(B)
compensation by the employer to the individual in accordance
with the Fair Labor Standards Act;
(C)
provision of services not available or funded through the
state education agency or a state rehabilitation agency.
§419.175.Certification Principles: Interdisciplinary Team Operations.
(a)
The program provider must maintain a system of service
planning and service delivery that is continuously responsive to changes in
the individual's condition, abilities, needs, and personal goals as identified
by the individual or the individual's LAR on behalf of the individual.
(b)
The program provider must ensure that, at minimum, the
individual's IDT consists of the individual and his or her LAR or family member,
the HCS case manager, and a nurse; and, when necessary to the service planning
process, the team includes other persons who may be assigned to provide or
who are currently providing direct services to the individual, a physician
and other professional personnel, and other persons chosen by the individual
or LAR.
(c)
The program provider must ensure that IDT members necessary
to address the needs of the individual attend or have verifiable input into
any meetings regarding the individual's ISP or IPC.
(d)
The program provider must maintain current information
about the individual that includes a description of the individual's service
needs and justification for the service components included in the individual's
IPC.
(e)
The program provider must maintain current service information
that clearly communicates appropriate changes as they occur pertaining to
the development and delivery of the individual's IPC and ISP.
(f)
The individual's IDT must use objective, observable, or
measurable criteria to define the need for services included in the individual's
IPC.
(g)
The program provider shall promote the development and
maintenance of effective communication among its personnel, service providers
and the individual's IDT.
(h)
The program provider must assess the legal status of an
individual at least annually and take actions as necessary based on the assessment
to support the individual in accessing appropriate resources for assistance.
(i)
The IDT must review at least annually the individual's
physical condition, health status and other assessments and take actions based
on the results of each review.
§419.176.Certification Principles: Discharge from Services.
(a)
Within ten calendar days of a proposed permanent discharge
of an individual, the program provider must submit the following to TDMHMR
for approval:
(1)
Request for Permanent Discharge Form, copies of which are
available by contacting the Texas Department of Mental Health and Mental Retardation,
Office of Medicaid Administration, P.O. Box 12668, Austin, Texas 78711-2668;
(2)
written justification for the discharge; and
(3)
a written discharge plan documenting, as appropriate:
(A)
that the individual or his or her LAR was informed of the
individual's option to transfer to another program provider and the consequence
of permanent discharge for receiving future HCS Program services; and
(B)
the service linkages that are in place following the individual's
discharge from the HCS Program.
(b)
The program provider must review the status of an individual
who is temporarily discharged at least every 90 calendar days following the
effective date of the temporary discharge and document in the individual's
record the reasons for continuing the discharge. If the temporary discharge
continues 270 calendar days, the program provider must submit written documentation
of the 90, 180, and 270 calendar day reviews to the department for review
and approval to continue the temporary discharge status.
(c)
At least annually the program provider shall review the
reasons for any discharges to identify any implications for improvement of
the program provider's service delivery.
§419.177.Certification Principles: Personnel Operations.
(a)
The program provider must ensure the continuous availability
of trained and qualified employees and/or contractual service providers to
deliver the required services as determined by the individual's needs.
(b)
The program provider must comply with each applicable regulation
required by the State of Texas in ensuring that its operations and personnel
or subcontractors meet state certification, licensure or regulation for any
tasks performed or services delivered in part or in entirety for the HCS Program.
(c)
The program provider must implement and maintain a plan
for initial and continuous training of personnel with periodic updates as
required or indicated by the needs of the individuals.
(d)
The program provider must implement and maintain personnel
practices that safeguard individuals against infectious and/or communicable
diseases.
(e)
The program provider's operations must prevent:
(1)
conflicts of interest between program provider personnel
and individuals;
(2)
financial impropriety toward individuals;
(3)
abuse, neglect, or exploitation of an individual;
or
(4)
threats of harm or danger toward an individual's possessions.
(f)
No later than September 1, 2000, the program provider must
employ or contract with a person who has a minimum of three years work experience
in planning and providing direct services to people with mental retardation
or other developmental disabilities as verified by written professional references
to oversee the provision of direct services to individuals.
(g)
In evaluating the qualifications of personnel for positions
requiring the equivalent of a high school education, the program provider
shall assure that the personnel or service provider involved is at least age
18 and either possesses a General Equivalency Degree (GED) or successfully
completes a proficiency evaluation of experience and competence to perform
the job tasks. The evaluation of experience and competency shall include:
(1)
a written competency-based assessment of the applicant's
ability to document service delivery and observations of the individuals to
be served; and,
(2)
at least three personal references from persons not
related by blood which indicate the applicant's ability to provide a safe,
healthy environment for the individuals being served.
(h)
The program provider must ensure that the HCS case manager
is currently qualified by having a:
(1)
bachelor's degree with major specialization in social,
behavioral or human services or related fields;
(2)
high school diploma or GED with related volunteer
experience comparable to two years full-time work in a social, behavioral,
or human services or related fields;
(3)
high school diploma or GED with a minimum of two years
full-time work experience in social, behavioral, human services or related
work; or
(4)
license by the State of Texas as an LVN or RN with
one year of experience in human services.
(i)
The program provider shall ensure that each provider of
counseling and therapies is currently qualified by being licensed and/or certified
by the State of Texas in the specific area for which services are delivered
or be providing services in accordance with state law. Psychologists employed
by State Operated Community Service Divisions and Community MHMR Centers are
required to be licensed in accordance with State law or certified as described
in Chapter 405 Subchapter D (relating to Determination of Mental Retardation
and Appropriateness for Admission to Mental Retardation Services).
(j)
The program provider shall ensure that the provider of
day habilitation or supported employment is currently qualified by having
a high school diploma or its equivalent as described in subsection (g) of
this section, that transportation is provided in accordance with applicable
state laws, and that tasks delegated by a Registered Nurse are performed in
accordance with state law.
(k)
The program provider must ensure that dental treatment
is provided by a dentist currently qualified by being licensed in the State
of Texas by the Texas State Board of Dental Examiners in accordance with Texas
Revised Civil Statutes Article 4543.
(l)
The program provider must ensure that nursing services
are provided by a nurse who is currently qualified by:
(1)
being licensed as a registered nurse in Texas by the Board
of Nurse Examiners for the State of Texas; or
(2)
being licensed as a licensed vocational nurse in Texas
by the Board of Vocational Nurse Examiners for the State of Texas.
(m)
The program provider must ensure that supported home living,
HCS foster/companion care, supervised living, residential support and respite
services providers are currently qualified by having a high school diploma
or its equivalent as described in subsection (g) of this section, that transportation
is provided in accordance with applicable state laws, and that tasks delegated
to the provider by a Registered Nurse are performed in accordance with state
law.
(n)
The program provider shall comply with Texas Health and
Safety Code, Chapter 250, Nurse Aide Registry and Criminal History Checks
of Employees and Applicants for Employment in Certain Facilities Serving the
Elderly or Persons with Disabilities.
§419.178.Certification Principles: Quality Assurance.
(a)
The program provider must pursue and promote the active
and maximum cooperation with generic service agencies, other service providers,
individuals and advocates in planning and developing a full range of services
and resources to match the needs of the individual as those needs are identified.
(b)
The program provider must ensure a personalized service
delivery program based upon the choices made by each individual, or the individual's
LAR on behalf of the individual, and those choices that are available to persons
without mental retardation and other disabilities.
(c)
The program provider shall:
(1)
conduct an initial on-site inspection prior to initiating
services in a residence and, thereafter, at least an annual on-site inspection
of all residences in which foster/companion care, supervised living, or residential
support is provided to assure that, based on the individual's needs, the environment
is healthy, comfortable, safe, appropriate and typical of other residences
in the community, suited for the individual's abilities, and is in compliance
with applicable federal, state, and local regulations for the community in
which the individual lives; and
(2)
ensure that the individual's IDT reviews the results
of the on-site inspection conducted prior to the individual residing in the
residence and each inspection conducted at least annually thereafter; and
takes action as required to assure that the residence is appropriate and meets
the needs of the individual.
(d)
The program provider must ensure that:
(1)
emergency plans are maintained for each residence in which
foster/companion care, supervised living or residential support is provided;
(2)
the emergency plans address relevant emergencies appropriate
for the type of service, geographic location and the individuals living in
the residence; and
(3)
the individuals and service provider staff follow
the plans during drills and actual emergencies.
(e)
The program provider must assure that a residence in which
four individuals live:
(1)
is in continuous compliance with applicable provisions
concerning Residential Board and Care Occupancies -- Small Facilities of the
edition of the NFPA 101
Life Safety Code
,
published by the National Fire Protection Association and most recently adopted
by the Texas State Fire Marshal's Office as certified by the fire safety authority
having jurisdiction for the location of the residence (e.g., the local fire
marshal or building official) at the time the residence is approved by the
department and at least annually thereafter;
(2)
is approved by the department in accordance with §419.182
of this title (relating to Department Approval of Residences); and
(3)
is in continuous compliance with all applicable health
and safety laws, ordinances, and regulations.
(f)
The program provider shall establish an on-going consumer/advocate
advisory committee composed of individuals, individuals' LARs, community representatives,
and family members that will meet at least quarterly. The committee will assist
the program provider to perform the following activities at least annually:
(1)
evaluating and addressing the satisfaction of individuals
or individuals' LARs with the program provider's services;
(2)
soliciting, addressing, and reviewing complaints from
individuals or their LARs about the operations of the program provider; and
(3)
participating in a continuous quality improvement
review of the program provider's operations and offering recommendations for
improvement of program operations for action by the program provider as necessary.
(g)
The program provider shall make available all records,
reports and other information related to the delivery of HCS Program services
as requested by the department, other authorized agencies, or HFCA and deliver
such items, as requested, to a specified location.
(h)
The program provider shall conduct at least annually, a
satisfaction survey of individuals and their LARs and take action regarding
any areas of dissatisfaction.
(i)
The program provider shall publicize and make available
a process for eliciting complaints and maintain a record of verifiable resolutions
of complaints received from:
(1)
individuals, their families or LARs
(2)
program provider's personnel or service providers;
and
(3)
the general public.
(j)
The program provider must ensure that:
(1)
the individual and the LAR are informed of how to report
allegations of abuse, neglect, or exploitation to the Texas Department of
Protective and Regulatory Services (DPRS) and are provided with the DPRS toll-free
telephone number (1-800-647-7418) in writing; and
(2)
all service provider personnel are instructed to immediately
report suspected abuse, neglect, or exploitation to DPRS and are provided
with the DPRS toll-free telephone number (1-800-647-7418) in writing; and
(3)
all service provider personnel report suspected abuse,
neglect or exploitation as instructed.
(k)
If the program provider suspects or is notified of an allegation
of abuse, neglect or exploitation, the program provider shall take necessary
actions to secure the safety of the alleged victim(s) involved in the allegation,
including but not limited to:
(1)
obtaining immediate and on-going medical or psychological
services for the alleged victim as necessary;
(2)
securing the safety of the alleged victim and, if
necessary, restricting access by the alleged perpetrator of the abuse, neglect
or exploitation to the alleged victim pending investigation of the allegation;
and
(3)
notifying the alleged victim and the individual's
LAR;.
(l)
The program provider personnel shall cooperate with the
DPRS investigation of an allegation of abuse, neglect, or exploitation, including
but not limited to:
(1)
providing complete access to all HCS Program service sites
owned, operated, or controlled by the program provider; and
(2)
providing complete access to individuals and program
provider personnel.
(m)
In all respite facilities and all residences in which the
residential assistance provider or the program provider hold a property interest,
the program provider must post in a conspicuous location:
(1)
the name, address and telephone number of the program provider;
(2)
the effective date of the TDMHMR Waiver Program Provider
Agreement; and
(3)
the name of the legal entity named on the Waiver Program
Provider Agreement.
(n)
The program provider must:
(1)
report the program provider's response to the finding of
all DPRS investigations of abuse, neglect, or exploitation to the department
in accordance with department procedures within 10 calendar days of the program
provider's receipt of the investigation findings; and
(2)
notify the individual and the individual's LAR that
the TDPRS investigation has been completed and that the individual or LAR
may contact TDPRS regarding the results of the investigation and the process
for appealing the findings within 10 calendar days of the program provider's
receipt of the investigation findings.
(o)
If abuse, neglect, or exploitation is confirmed by the
DPRS investigation, the program provider shall take appropriate action to
prevent the reoccurrence of abuse, neglect or exploitation including, when
warranted, disciplinary action against or termination of the employment of
program provider personnel confirmed by the DPRS investigation to have committed
abuse, neglect, and exploitation.
(p)
At least annually, the program provider must review incidents
of confirmed abuse, neglect, or exploitation, complaints, and unusual incidents
to identify program operations modifications that will prevent the reoccurrence
of such incidents and improve service delivery.
(q)
The program provider shall ensure that all personal information
concerning an individual, such as lists of names, addresses and records obtained
by the program provider is kept confidential, that the use or disclosure of
such information and records is limited to purposes directly connected with
the administration of the HCS Program, and is otherwise neither directly nor
indirectly used or disclosed unless the consent of the individual to whom
the information applies or his or her LAR is obtained beforehand.
(r)
The program provider shall apply a consistent method in
assessing charges against the individual's personal funds that ensures that
charges for items or services, including but not limited to room and board,
are reasonable and comparable to the costs of similar items and services generally
available in the community.
(s)
The program provider shall assure the individual or his
or her LAR has agreed in writing to all charges assessed by the program provider
against the individual's personal funds prior the charges being assessed.
(t)
The program provider shall not assess charges against the
individual's personal funds for costs for items or services reimbursed through
the HCS Program.
(u)
At the written request of an individual or his or her LAR,
the program provider:
(1)
must manage the individual's personal funds entrusted to
the program provider;
(2)
must not commingle the individual's personal funds
with the program provider's funds; and
(3)
must maintain a separate, detailed record of all deposits
and expenditures for the individual.
(v)
When behavior management techniques involving restriction
of individual rights or intrusive techniques are used, the program provider
shall ensure that the implementation of such techniques includes:
(1)
approval by the individual's IDT;
(2)
written consent of the individual or LAR;
(3)
written notification to the individual or LAR of the
right to discontinue participation at any time;
(4)
assessment of the individual's needs and current level/severity
of the targeted behavior(s);
(5)
use of techniques appropriate to the level/severity
of the targeted behavior(s);
(6)
a written program developed by a psychologist with
input from the individual, LAR, the individual's IDT, and other professional
personnel;
(7)
collection and monitoring of behavioral data concerning
the targeted behavior(s);
(8)
allowance for the decrease in the use of intervention
based on behavioral data;
(9)
allowance for revision of the program when desired
behavior(s) are not displayed or techniques are not effective;
(10)
consideration of the effects of the techniques in
relation to the individual's physical and psychological well-being; and
(11)
at least an annual review by the IDT to determine
the effectiveness of the program and the need to continue the techniques.
(w)
The program provider shall report the death of an individual
to the department by the end of the next business day following the death
and, if the program provider reasonably believes that the individual's LAR
does not know of the death, to the individual's LAR as soon as possible, but
not later than 24 hours after the death.
§419.179.Corrective Action and Program Provider Sanctions.
(a)
If the department determines that the program provider
is in compliance with all certification principles at the end of the review
exit conference, the department certifies the program provider and no action
by the program provider is required.
(b)
If the department determines that the program provider
is out of compliance with ten percent or fewer of the certification principles
at the end of the review exit conference, but the program provider is in compliance
with all principles found out of compliance in the previous review, the program
provider must submit a corrective action plan to the department within 14
calendar days after the program provider receives the department's certification
report.
(1)
The corrective action plan must specify a date by which
corrective action will be completed, and such date must be no later than 90
calendar days after the certification review exit conference.
(2)
If the program provider submits a corrective action
plan in accordance with this subsection and the plan is approved by the department,
the department certifies the program provider. The department evaluates the
program provider's required corrective action during the department's first
review of the program provider after the corrective action completion date.
(3)
If the program provider does not submit a corrective
action plan in accordance with this subsection or the plan is not approved
by the department, the department initiates termination of the program provider's
Waiver Program Provider Agreement, implements vendor hold against the program
provider and, in conjunction with the local MRA, coordinates the provision
of alternate services for the individuals receiving HCS program services from
the program provider.
(c)
If the department determines that the program provider
is out of compliance with ten percent or fewer of the certification principles
at the end of the review exit conference, including any principles found out
of compliance in the previous review, the department:
(1)
certifies the program provider, if the program provider:
(A)
presents evidence before the end of the current certification
period that it is in compliance with all principles found out of compliance
in the previous review; and
(B)
submits a corrective action plan in accordance with subsection
(b) of this section addressing any new principles found out of compliance;
or
(2)
does not certify the program provider and initiates
termination of the program provider's Waiver Program Provider Agreement, if
the provider does not:
(A)
present evidence before the end of the current certification
period that it is in compliance with all principles found out of compliance
in the previous review; and
(B)
submit a corrective action plan in accordance with subsection
(b) of this section addressing any new principles found out of compliance.
(d)
If the department determines that the program provider
is out of compliance with between ten and twenty percent of the certification
principles at the end of the review exit conference, including any principles
found out of compliance in the previous review, the department does not certify
the program provider and applies Level I sanctions against the program provider.
(1)
Under Level I sanctions, the program provider must complete
corrective action within 30 calendar days after the review exit conference;
and the department conducts an on-site follow-up review within 30 to 45 calendar
days after the review exit conference.
(2)
Based on the results of the follow-up review, the
department:
(A)
certifies the program provider, if the department determines
that the program provider is in compliance, by the end of the follow-up review
exit conference, with the principles found out of compliance; or
(B)
denies certification of and implements vendor hold against
the program provider if the department determines that the program provider
is not in compliance, by the end of the follow-up review exit conference,
with the principles found out of compliance.
(3)
If the department implements vendor hold against
the provider, the department conducts a second on-site follow-up review between
30 and 45 calendar days from the effective date of the vendor hold. Based
on the results of the review, the department:
(A)
certifies the program provider and removes the vendor hold
if the department determines that the program provider is in compliance, by
the end of the follow-up review exit conference, with the principles found
out of compliance; or
(B)
denies certification of the program provider and initiates
termination of the program provider's Waiver Program Provider Agreement if
the department determines that the program provider is not in compliance,
by the end of the follow-up review exit conference, with the principles found
out of compliance.
(e)
If the department determines that the program provider
is out of compliance, at the end of the review exit conference, with twenty
or more percent of the certification principles, including any principles
found out of compliance in the previous review, the department does not certify
the program provider, implements vendor hold, and applies Level II sanctions
against the program provider.
(1)
Under Level II sanctions:
(A)
the program provider must complete corrective action within
30 calendar days after the review exit conference; and
(B)
the department conducts an on-site follow-up review within
30 to 45 calendar days after the required correction date.
(2)
Based on the results of the follow-up review,
the department:
(A)
certifies the program provider and removes the vendor hold,
if the department determines that the program provider is in compliance, by
the end of the follow-up review exit conference, with all principles found
out of compliance; or
(B)
denies certification of the program provider and initiates
termination of the program provider's Waiver Program Provider Agreement if
the department determines that the program provider is not in compliance,
by the end of the follow-up review exit conference, with all principles found
out of compliance.
(f)
Notwithstanding subsections (b)-(e) of this section, if
the department determines that a hazard to the health, safety, or welfare
of one or more individuals exists and the hazard is not eliminated before
the end of the review exit conference, the department denies certification
of the program provider, initiates termination of the program provider's Waiver
Program Provider Agreement, implements vendor hold against the program provider,
and, in conjunction with the local MRA, coordinates the provision of alternate
services for individuals receiving HCS program services from the program provider.
A hazard to health, safety or welfare is any condition which could result
in life-threatening harm, serious injury, or death of an individual or other
person within 48 hours. If hazards are identified by the department during
a review and the program provider corrects the hazards before the end of the
review exit conference, the correction will be designated in the department's
report of the review.
(g)
Notwithstanding subsections (b)-(e) of this section, if
the department determines that a program provider's failure to comply with
one or more of the certification principles is of a serious or pervasive nature,
the department may, at its discretion, take any action described in this section
against the program provider. Serious or pervasive failure to comply includes
but is not limited to conditions that have potentially dangerous consequences
for individuals served by the program provider or conditions that affect a
large percentage of individuals served by the program provider.
§419.180.Program Provider's Right to Administrative Hearing.
(a)
A program provider may request an administrative hearing
in accordance with Chapter 409, Subchapter B of this title (relating to Adverse
Actions), if the department takes or proposes to take the following action:
(1)
vendor hold;
(2)
termination of the provider agreement;
(3)
recoupment of payments made to the program provider;
or
(4)
denial of a program provider's claim for payment,
including denial of a retroactive LOC and denial of a proposed LON.
(b)
If the basis of an administrative hearing requested this
section is a dispute regarding a LON assignment, the program provider may
receive an administrative hearing only if reconsideration was requested by
the program provider in accordance with §419.163 of this title (relating
to Reconsideration of Level of Need Assignment).
§419.182.Department Approval of Residences.
(a)
The program provider must request and obtain the department's
approval of a residence in which four individuals or other persons receiving
similar services will live.
(b)
To receive approval of a residence described in subsection
(a) of this section, the program provider must submit the following documentation
to the department:
(1)
the address of the residence at which the program provider
intends to provide residential support;
(2)
written certification from the program provider that
the program provider is providing or intends to provide residential support
for one or more individuals who will live in the residence;
(3)
written certification by the fire safety authority
having jurisdiction for the location for the residence (e.g., local fire marshal
or building official) that, based upon inspection of the residence, the residence
complies with the provisions of §419.178(e)((1) of this title (relating
to Certification Principles: Quality Assurance);
(4)
written certification from the program provider that
the residence to be approved is not the residence of any direct service provider.
(c)
Pending the department's receipt of documentation of the
certification inspection required by subsection (b)(3) of this section, the
department may grant temporary approval of a residence described in subsection
(a) of this section if the program provider submits the documentation required
by subsection (b)(1), (2), and (4) of this section and the following dated
documentation to the department:
(1)
a copy of the Contractor's Material and Test Certificate
for Above Ground Piping (Form 85A) and the Contractor's Material and Test
Certification for Underground Piping (Form 85B) as issued by the Texas State
Fire Marshal's Office certifying the automatic fire sprinkler system complies
with minimum installation requirements signed by an installer licensed by
the State of Texas or documentation evidencing a "prompt" evacuation capability,
as defined in the NFPA 101
Life Safety Code
;
(2)
a copy of the Fire Alarm Installation Certificate
(Form FML009) certifying the fire alarm system complies with minimum installation
requirements and applicable provisions of the NFPA 101
Life Safety Code
signed by an installer licensed by the State of Texas;
(3)
a copy of the written correspondence from the fire
safety authority having jurisdiction for the location of the residence that
an inspection of the residence by that authority will be conducted within
30 calendar days of the effective date of the department's approval of the
residence as established in accordance with subsection (e) of this section;
and
(4)
written certification from the program provider that
all other NFPA 101
Life Safety Code
requirements
applicable to the residence have been met.
(d)
Temporary approval granted in accordance with subsection
(d) of this section:
(1)
is effective as of the date of the latest date of the documentation
specified in subsection (c)(1)-(4) of this section; and
(2)
expires 45 calendar days from the effective date of
the temporary approval or on the date the department approves the residence
based on the program provider's submission of the written certification required
in subsection (b)(3) of this section, whichever is earlier.
(e)
The department notifies the program provider of its approval
or disapproval of the residence within 10 working days of its receipt of the
documentation specified in subsection (b) or (c) of this section.
(f)
Services in a residence described in subsection (a) of
this section may not be initiated until the program provider has met the provision
of subsections (c) or (d) of this section.
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 February 7, 2000.
TRD-200000947
Charles Cooper
Chair, Texas MHMR Board
Texas Department of Mental Health and Mental Retardation
Effective date: March 1, 2000
Proposal publication date: October 1, 1999
For further information, please call: (512) 206-5232
25 TAC §§419.651 - 419.662, 419.665 - 419.678
The Texas Department of Mental Health and Mental Retardation
(department) adopts new §§419.653-419.654, 419.656-419.658, 419.661,
419.665-419.666, 419.668-419.675, and 419.678 of new Chapter 419, Subchapter
P, concerning home and community-based services -- OBRA (HCS-O) program, with
changes to the text as published in the October 1, 1999, issue of the
The new subchapter replaces existing Chapter 409, Subchapter E, concerning
home and community-based services -- OBRA (HCS-O), the repeal of which is
adopted contemporaneously in this issue of the
Texas
Register
. The new subchapter is part of a comprehensive reorganization
of chapters and subchapters within the department's portion of the Texas Administrative
Code in conjunction with the sunset review of agency rules required by Texas
Government Code, §2001.039 (as added by Senate Bill 178, Section 1.11,
76th Legislature).
Included in the new subchapter are provisions that are responsive to the
76th Legislature's direction to reduce the average cost of the department's
home and community-based waiver program services, including the HCS-O program,
during the current biennium (Appropriations Act, Article II, Texas Department
of Mental Health and Mental Retardation, Rider 7, page II-73). The department's
appropriation included funding for those individuals currently receiving waiver
program services, with the requirement that the average monthly expenditure
per individual be reduced to $3,846 from the FY 1999 figure of $4,000-$4,206.
The legislature further directed that the average monthly expenditure per
individual be reduced to $3,706 by the end of FY 2000 and $3,511 by the end
of FY 2001.
In the spring and summer of 1998, the department developed its legislative
appropriation request (LAR) for the 2000-2001 biennium. An analysis by department
staff of cost trends in the waiver programs projected a budget deficit based
on the number of individuals expected to be enrolled. To obtain input for
the development of a plan to achieve cost savings in the waiver programs and
to assure an appropriate level of service for individuals, the commissioner
charged a workgroup with studying the utilization of the waiver programs and
Intermediate Care Facilities for Persons with Mental Retardation (ICF/MR)
resources and making recommendations regarding the future of these Medicaid
programs. The workgroup was composed of consumers, family members, advocates,
providers, and staff from local mental retardation authorities (MRAs), and
presented its final report to the board in March 1999.
The department's plan for improving the cost effectiveness of the waiver
programs and ICF/MR programs was discussed with legislative representatives
during the 76th legislative session. After the appropriation was known the
department immediately began to develop proposed changes that would implement
the recommendations from the workgroup and allow the department to continue
to provide services within the appropriated funds. The changes proposed in
this new subchapter have been carefully developed to safeguard the waiver
programs for those individuals currently receiving services and those who
are waiting for services. The department's vision of a system of community-based
services and supports that is affordable, flexible, and consumer-driven is
reflected in the new subchapter.
Provisions from the subchapter have been revised and extensively reorganized
in the new subchapter and new requirements have been added. Rules related
to cost reporting by program providers were previously administratively transferred
to the Texas Health and Human Services Commission and, therefore, are being
removed from the new subchapter.
The new subchapter describes a fundamental change in the process for the
initial enrollment of individuals in the HCS-O program. The role of local
mental retardation authorities (MRAs) is expanded to include responsibility
for developing an individual's initial person-directed plan and recommending
an individual's level of care and initial plan of care to the department for
approval. Currently, HCS-O program providers are responsible for completing
these initial enrollment activities.
Under the current rules, no more than three individuals receiving HCS-O
services or similar services for which the service provider is reimbursed
may live in a residence at any one time. In recognition of those instances
in which an individual living outside his or her family home lives with individuals
receiving Home and Community-based Services (HCS) program services, the new
subchapter contains a provision, consistent with those contemporaneously adopted
for the HCS program that, under certain circumstances, allows up to four individuals
to live in a residence at any one time. This provision is included to prevent
the potential disruption of services to individuals that would occur if the
rules for the HCS and HCS-O program relating to the maximum number of individuals
who may share a residence were inconsistent.
The new subchapter adds provisions clarifying the department's process
for reviewing an individual plan of care (IPC) and evaluating the appropriateness
of the type and amount of services included in the IPC. In addition, the new
subchapter provides that the department will review documentation supporting
an individual's service needs if the individual's annual plan of care cost
exceeds 100% of the estimated annualized average per capita cost for ICF/MR
services.
The new subchapter revises the provider sanctions process to reduce the
levels of sanctions from three to two, revises the criteria for application
of program provider sanctions, and reduces the number of follow-up visits
conducted by the department prior to placing the program provider on vendor
hold.
The HCS-O Consumer Principles for Evidentiary Certification have been incorporated
into the subchapter as §419.669-419.674. The principles have been revised
to conform to the format and style requirements of the
Texas Register
and to incorporate minor clarifications to the existing
language. Principles have been added which relate to program provider operations,
including requirements to assure direct service delivery is supervised and
managed by an individual with previous experience in planning and delivering
services to the program population, requirements related to residential settings
serving four persons, and requirements related to alleged abuse, neglect,
and exploitation.
In addition, the new subchapter includes updated and detailed provider
payment procedures and limitations, documentation requirements for billing
for minor home modifications, and new procedures related to disputed enrollment
effective dates.
Several definitions in §419.652 have been revised: the definition
of ISP (individual service plan) is revised to specify that the ISP also describes
recommendations considered by the interdisciplinary team. The definition of
PDP (person-directed plan) is revised to include reference to the involvement
of an individual's legally authorized representative (LAR) in establishing
the outcomes identified in the PDP. The definition of service coordinator
is revised to specify that a service coordinator assists an individual's LAR
to access services on behalf of the individual.
Section 419.156(b) is revised to clarify that the Texas Department of Human
Services determines if an individual is required to pay a co-payment for HCS-O
program services.
A provision is added in §419.657(b)(3) requiring the service planning
or interdisciplinary team to document that a service component specified on
the individual plan of care (IPC) is necessary to ensure an individual's health
and welfare in the community. Subsection (c)(1)-(2) of that same section is
revised to clarify who must sign the (IPC), with language added to subsection
(c)(1) specifying that the services recommended by team members are necessary
for the individual to live in the community. Language in subsection (e) is
revised to specify that individualized assessments must support, rather than
document, the individual's need for the services included in the individual's
IPC.
Section 419.658(a) is revised to clarify that the department may review
documentation supporting the services included in an individual's IPC and
that the program provider must submit such documentation as requested by the
department.
Language is added in §419.661(a) specifying that the MRA must assist
the LAR of applicant when program services are desired. Subsection(b) is revised
to specify that the MRA must inform applicants or their LARs that, when choosing
between ICF/MR services and HCS-O services, the applicant or LAR is made aware
that the choice includes ICF/MR services in a state school or community-based
setting, as well as other services and to indicate that, as a service planning
team member, the LAR acts on behalf of the applicant. Section 419.665 is revised
to indicate that fair hearings are available to individuals under the Chapter
419, Subchapter G, concerning Medicaid Fair Hearings.
Section 419.666(i) is revised to require proof of the denial of claims
for adaptive aids from only those sources for which an individual may be eligible
to receive services and to require that the documentation of denial include
evidence that the request for payment submitted to another source was not
only proper and timely, but also complete. Subsection (j) is revised to require
that claims for adaptive aids costing $500 or more or minor home modifications
costing $1,000 or more be supported by an individualized assessment conducted
by a professional qualified to assess whether the adaptive aid or home modification
is appropriate to meet an individual's specific needs. In the same section,
subsections (k)(4) and (5) are combined as revised subsection (k)(4) and new
subsection (k)(5) added to permit the department to deny or recover payment
made to a program provider if a provider serves four individuals living in
the same residence without the department's approval of the residence. Subsection
(k)(8) is revised to clarify that written documentation supporting the need
for a minor home modification or adaptive aid must conform to provisions of §419.666(j)
to avoid denial of a claim for these services. Subsection (k)(9) is revised
to also indicate the requirement that a denial of payment from another source
is based upon a complete request, as well as one that is proper and timely,
for payment for the service component from another source.
Revisions to §419.668(3) and (4) and §419.669(a)(1) require the
program provider's recognition of the role of an individual's LAR in protecting
and exercising the individual's rights. In recognition of the role of MRAs
in completing the enrollment process for applicants, §419.670(1) and
(2) is revised to substitute "serve" for "enroll." In addition, §419.670(49)(B)(i)-(iii)
is revised to clarify the maximum number of individuals who may receive respite
services in the same location at any one time.
The language of §419.671(a) is revised to indicate the program provider's
responsibility to assure its service system is responsive to the goals identified
by an individual's LAR on behalf of the individual. Language is added to §419.672(a)
specifying that program providers must submit a proposed permanent discharge
request to the department and subsection (a)(3) is modified to indicate that
a discharge plan may not be required if it is inappropriate to the circumstances
of an individual's recommended discharge from services, e.g., death of the
individual. The language of §419.673(f) is revised to clarify that the
experience requirements described in the subsection apply only to a person
working for program provider and to service providers engaged to provide a
specific service component to an individual.
Language is modified in §419.674(b) to require that the program provider's
service delivery system recognize choices made by an individual's LAR on the
individual's behalf. In the same section, subsection (c) is revised to clarify
that the program provider's initial inspection of the residence of an individual
living outside the family home is conducted prior to the individual receiving
services in the residence and that the initial inspection and each annual
inspection is reviewed by the individual's IDT. Subsection (e) of this section
is modified to specify the
Life Safety Code
provisions a residence must satisfy if four individuals will live and receive
services in the residence and that the department must approve the residence.
Modifications are made to §419.674(f) to clarify that the program provider's
advisory committee meets at least quarterly and assists the provider in completing
the enumerated activities at least annually. Subsection (j) of this section
is revised to clarify that service provider personnel report suspected abuse,
neglect or exploitation, rather than reporting "allegations" of such, as instructed.
Subsection (k) is modified to require that a program provider take necessary
actions if the provider suspects abuse, neglect, or exploitation, as well
as when notified of such. Subsection (k)(3) of this section is also modified
to remove the reference to the program provider's notification of an individual's
"correspondent" of an allegation of abuse, neglect, or exploitation. Subsection
(m) of this section is revised to clarify that posting of information regarding
the program provider is required only in residences in which the direct service
provider or the program provider holds a property interest. Subsection (n)
of this section is revised to require the program provider to notify an individual
or an individual's LAR of the completion of an investigation of abuse, neglect,
or exploitation by Texas Department of Protective and Regulatory Services.
Subsection (w) of this section is revised to require a program provider to
notify an individual's LAR of the individual's death within 24 hours when
the provider believes the LAR is unaware of the death.
In §419.675(a), the phrase "including all principles found out of
compliance in the previous review" is removed as redundant. Subsection (b)(3)
of this section is revised to be consistent with other portions of this section
regarding sanctions. Revisions are made at §419.675(b)(3) and (f) to
indicate that, when necessary, individuals receiving services are assisted
in relocation by the department in conjunction with the local MRA. Language
is added in §419.675(g) to define conditions, which would represent a
program provider's "serious or pervasive" failure to comply with certification
principles.
Extensive revisions to §419.678 clarify that residences must be approved
when a program provider proposes to serve four individuals in a single residence,
specify the written documentation that must be submitted to the department
for approval of the residence, add requirements and conditions under which
a temporary approval of such a residence may be made, set forth the timeframe
for notification of the department's approval, and specify the minimum provisions
that must be met prior to a program provider initiating services in the residence.
A public hearing was held on October 26, 1999, in Austin, to accept oral
and written testimony concerning the proposal. Some of those who testified
also submitted written comments. Comments were received from three family
members and/or guardians of consumers receiving waiver program services. Those
commenters are from The Woodlands and Houston. Comments also were submitted
by the parent/guardian of a state school resident, Garland.
Comments were received from the Private Providers Association of Texas
and six private providers of waiver program services: Ability House, Corpus
Christi; Bethesda Lutheran Homes & Services, Cypress; Community Options,
Inc., Austin; Concept Six, Austin; Educare, Austin; Empowerment Options, Inc.,
Austin; Vita-Living Inc., Houston. Comments were also submitted by Willand
Inc. Advisory Committee, White Oak, an advisory committee to a private HCS
program providers.
Six advocacy and consumer organizations submitted comments: Advocacy Inc.,
Austin; Parent Association for the Retarded of Texas (PART), Austin; Texas
Association for Mental Retardation (TAMR), Austin; Texas Respite Resource
Network, Austin; The Arc of Texas, Austin; and The Disability Policy Consortium,
Austin.
The Texas Department of Human Services, Long Term Care Policy division,
also submitted comments.
Ten commenters expressed their concerns about or opposition to the provisions
that permit four individuals to live in the same residence. Two of the commenters
expressed concern that the proposed changes in the program represent the first
step toward dismantling the program because the same logic used to eliminate
the three-bed model can be used to eliminate the four-bed model and all future
models for residential living until all consumers are housed in institutional
settings. Nine commenters stated their opposition to the provision. Three
of those commenters stated that increasing the number of individuals residing
together infringes on the privacy of each of those individuals. Two of the
eleven commenters stated that this change limits an individual's choice and
control and undermines the original intent of the program, which is to give
individuals the option of living in the community. Two commenters opposed
the provision and suggested that the provision be withdrawn so that the waiver
programs are not used as a vehicle for the "group home model". One commenter
stated that the provision is inconsistent with the department's principles
and values as set forth in the Quality of Life Project, August 94;
Values and Supports: A Vision for Mental Retardation Community Services in
Texas
, June 98; the final report of the ad hoc committee on mental
retardation and managed care --
MR System for the
Future
, April 96 and with Texas Association on Mental Retardation's
principle of "achieving full societal inclusion and participation of people
with intellectual disabilities." The commenter summarized the principles and
values as: smaller versus larger facilities; not regulating an individual's
home in same way services are regulated; a service system that is available,
easily accessed, and used by other members of the community. The department
agrees with the commenters' concern to retain the waiver system of services
that recognizes individual needs and encourages each individual's fullest
development and participation in the community. The department replies that
the changes contained in the new subchapter achieve a balance between the
values voiced by the commenters and budgetary limitations. The department
disagrees that the provision will "dismantle" the program or end the opportunity
for individuals to live in homes serving three individuals. The department
also disagrees that the provision permitting four individuals to share a residence
will necessarily result in the restriction of individual rights or compromise
an individual's access to or participation in community life. The provisions
do not relieve the program provider from the responsibility to protect and
promote the individual's rights as enumerated in §419.669 of the subchapter.
One commenter expressed reluctant support for the provisions permitting
up to four individuals to live together in a home. The commenter stated that
no other viable alternative existed to achieve the budgetary goals established
by the 76th Legislature for this biennium. However, the commenter stated that
the support was contingent upon the department developing an approval process
for any provider wishing to add a fourth person to a home. The commenter suggested
the approval process must, at a minimum, require the provider to submit documentation
that person-directed planning involving all members of the household was used
to arrive at the decision to add a fourth person and clearly describe efforts
that have been made and will continue to be made to move individuals to a
less restrictive, in-home support, or foster/companion care model. The department
appreciates the commenter's support but declines to adopt the standards for
approval of a residence as recommended. In implementing the changes to the
residential assistance array, program providers must continue to assure that
individuals and their LARs are informed of feasible alternatives and that
individuals and their representatives participate fully in decisions regarding
where the individual lives and receives services. The department notes that
person-directed planning is a part of the enrollment process.
Two commenters stated that "small" providers and families with a strong
stake in the current waiver residential model were underrepresented on the
two workgroups convened by the department to provide input on the redesign
of the waiver program. The commenters stated that families of consumers currently
being served in three-person residences will work hard to make it viable for
the long haul. The department responds that the composition of both the Utilization
of Resources and the Access to Services workgroups was balanced with representation
from family members of individuals receiving waiver program services, program
providers who have a large percentage of three-person residences as well as
those who have very few, advocacy organizations, and local MRAs. The department
believes that the viability of waiver program group homes depends on individuals
and families working with providers to reassess an individual's needs and
prioritize those needs within budgetary allocations.
Two commenters stated that many parents of consumers have said they thought
placing their adult children in a setting to receive residential assistance
ensured that the individuals were appropriately and permanently placed and
that the state could be trusted to take care of those individuals after the
parents died. The department responds that the current changes to the HCS-O
program are intended to ensure that the department will be able to continue
providing community-based services that are both effective and affordable.
One commenter expressed concern about the impact of the changes on the
department's Quality Improvement and Assurance System (QAIS) for community-based
mental retardation services. The commenter suggested that allowing four person
group homes would make it more difficult for providers to achieve compliance
with the 1997
Personal Outcome Measures
from
The Council on Quality and Leadership in Supports for People with Disabilities
which are the basis of QAIS. The commenter stated that increasing the number
of residents in a home by 33% automatically makes supporting personal choices
and, ultimately, achieving personal goals more difficult. The commenter further
stated that four of the seven categories of personal outcome measures -- identity,
autonomy, affiliation, and attainment -- will be more difficult to achieve
in a larger residential setting. The commenter also suggested that the remaining
three categories -- safeguards, rights, and health and wellness -- also may
be adversely affected. The department disagrees that the changes to the program
make attainment of certain outcomes more difficult. Further, the department
notes that the size of a residential setting should not dictate whether or
not personal outcomes are achieved. Achievement of personal outcomes is rather
a result of the values and philosophy adopted by the program provider and
its focus on assisting individuals in realizing their goals.
Three commenters recommended that the department establish incentives to
make the foster/companion care model a more viable option in the waiver program.
One of the three commenters said the department, at a minimum, should develop
overall program guidelines based on successful foster/companion programs and
provide training and ongoing technical assistance. The other two commenters
stated that the department should prioritize the expansion of foster/companion
care. They acknowledged that this model may not meet the needs of all waiver
consumers and will not work in all communities, but stated that this model
is cost effective and ensures a high quality of life for consumers. The department
agrees with the commenters that foster/companion care can be cost effective
and provide a high quality of life for some individuals, and will continue
to evaluate strategies for increasing the availability of these options. However,
to realize the necessary cost savings during the current biennium, the department
is using available resources to implement the program changes described in
the new subchapter. The department adds that the HCS-O reimbursement model
does not distinguish among service settings, e.g., foster/companion care home
vs. small group home.
Two commenters recommended that the department should fully examine all
possible options before adopting the proposed new structure for the waiver
programs. The commenters stated that the department's Utilization of Resources
workgroup was not allowed to examine all possible alternatives for achieving
cost efficiencies in the waiver programs, and suggested that the following
five alternatives should be studied: transferring persons between the ICF/MR
and waiver programs; creating incentives for foster care; returning to a flat
rate reimbursement system for HCS; analysis of cost savings related to enforcement
of current caps; and other utilization review activities. The commenters further
stated that the workgroup was never presented with complete information about
the amount of savings needed, nor was a thorough cost analysis presented to
the workgroup of the savings that would be achieved either with the proposed
changes or other possible actions and/or options. The commenters recommended
that the proposed subchapter not be adopted and that the workgroup should
be reconvened and attempt to develop a more viable alternative. The department
responds that each of the alternatives addressed by the commenters was considered
by the workgroup, and that information available at the time concerning estimated
costs savings and the relative impacts of different alternatives was presented
to the workgroup. After the appropriation was known, changes to the waiver
programs incorporating the workgroup's recommendations were proposed in this
subchapter. The workgroup considered both short and long-term strategies,
some of which continue to be evaluated as the department considers future
program modifications that will improve the cost effectiveness of service
delivery and enhance the flexibility of the program to respond to individual
needs and capabilities.
Three commenters stated that the workgroup never developed a vision for
the future of waiver programs, which is critical in any planning process and
would have served as useful guide in the workgroup's exploration of appropriate
and sequential steps necessary to achieve the vision. One of the commenters
questioned whether the department would respond to future cost issues by increasing
the residential model to permit even more individuals in a single residence.
The commenter stated that the integrity of the program shouldn't be sacrificed
based on the budget, and that values must dictate the budget not the other
way around. The commenter also stated that the workgroup was informed that
proposed changes, especially with regard to residential models, were only
interim. The commenters stated that if this is true, all stakeholders will
be adversely affected should further program changes be imminent. The department
states that its vision for the waiver program as a system of community-based
services and supports that is effective, affordable, flexible, and consumer-drive
remains unchanged. The department explains that to maintain a balance of quality
of services within budgetary constraints, the department is committed to continuously
assessing the system of services and making appropriate changes. Maintaining
this balance preserves the vision and integrity of the program and the values.
Seven commenters expressed concerns about the short timeline projected
by the department for implementation of the waiver program changes on March
1, 2000. The commenters stated that this transition period is unrealistic
and doesn't permit adequate time for consumers, family members, and providers
to make plans, and recommended that the department establish a more reasonable
and adequate transition period. Three commenters identified three broad areas
of difficulty: providers having to cancel leases and locate different property
to accommodate the four individuals, necessary and potentially costly renovations
to comply with
Life Safety Code
requirements,
and consumers and families working with providers to make choices about where
the consumer wants to live and the type of services desired. Four commenters
stated that the proposed transition period doesn't allow sufficient time for
consumers and family members to exercise true choice. One of those four commenters
stated that to ignore input from and the wishes of consumers and family members
to meet an unnecessary deadline sets a "terrible precedent" for the program.
Two commenters expressed serious concern that some providers will be forced
out of business as a result of the proposed changes and the short transition
period, thus reducing the options for consumer/family choice of providers
and settings. Those two commenters suggested that more time be allowed to
transition consumers to alternative arrangements if their providers elect
to leave the program. Four commenters recommended extending the transition
phase by periods varying from three to 12 months. Another commenter stated
that a projected two-month transition period with less than a year of forethought
is insufficient for the proposed radical changes to the program and compared
that with the year of preparation that preceded implementation of the MRLA
pilot. That commenter supported this assertion with references to "significant
and unresolved issues relating to service coordination, utilization control,
provider reimbursement, enrollment and certification, client transfers, separation
of authority and provider functions and many others." Two commenters stated
that while the department has been discussing and planning the proposed changes
for years, providers and parents have just begun to understand the implications
of the changes. One commenter asked what timelines the department anticipated
for the transition. The department responds that the projected effective date
for the new subchapter is March 1, 2000. The department acknowledges that
the period between adoption of the new subchapter and the effective date is
brief; however, the department explains that, unlike with the HCS program,
a new service component is not defined and the department has not proposed
an associated rate change for the HCS-O program. The department further states
that the provision allowing up to four individuals to live together does not
mean that individuals currently sharing a home with two other individuals
must "transition" to a home serving four individuals and adds that this provision
has been included in the HCS-O program rules to accommodate those individuals
who may live with individuals served through the HCS-O program.
Three commenters stated that the department's stated intent to allow providers
to begin transition activities before the Health Care Financing Administration
(HCFA) approves the associated waiver amendment and before the projected effective
date of the new rules places providers and consumers at risk. The commenters
recommended that implementation of the proposed new rules be suspended until
HCFA has approved the amendment. Two of those commenters recommended that
the transition period should begin only after all approvals are obtained,
with one of the two also recommending that sufficient training be provided
to all affected parties before transition begins. Two commenters suggested
that implementing the program changes before receiving HCFA's approval could
result in a situation similar to that with the Mental Retardation Local Authority
(MRLA) pilot waiver when implementation of the program had to be delayed pending
revision of the waiver to meet HCFA's objections. The department responds
that those portions of the waiver that must be amended do not deviate from
the types of services approved under §1915(c) of the Social Security
Act. Therefore, the department will proceed with adoption and implementation
of the program change contemporaneously with the submission of the waiver
amendment to HCFA. The department explains that the MRLA program required
approval of a new waiver request rather than an amendment to an existing,
approved waiver, which allows services to proceed pending HCFA's approval.
Implementation of the program changes will not occur prior to the projected
March 1, 2000, effective date of the new subchapter.
One commenter suggested piloting the proposed restructuring of the HCS
and the Home and Community-based Services -- OBRA (HCS-O) programs. The commenter
stated that this would provide an opportunity for the department and stakeholders
to fully evaluate the feasibility of the proposed changes. The department
responds that the need to meet the projected budget projections for savings
in the waiver programs during this biennium makes the piloting of these changes
an impossibility. Therefore, the department declines to implement the commenter's
suggestion.
A commenter suggested that the department explore the "parents as case
managers model" and a voucher model that is consumer/family controlled as
a method for achieving substantial savings. The commenter stated that parents
often have experience developing a plan and managing a budget through their
previous experience with in-home and family support grants and might prefer
not to have case management. The commenter said that option for case management
should remain available for those who need or prefer that model. The commenter
further suggested that client-managed attendant services have been successfully
piloted by the Texas Department of Human Services, and that the state has
the opportunity through Senate Bill 1586 of the 76th Legislature to expand
the voucher model to other programs, including long term care waivers. The
commenter stated that the voucher model would complement the shift of enrollment
and initial IPC development responsibilities to the MRAs. The department appreciates
the commenter's suggestion to explore the two design modifications mentioned.
The department will continue to evaluate and recommend program modifications
that will improve the cost effectiveness of service delivery and enhance the
flexibility of the program to respond to individual needs and capabilities.
Three commenters expressed concerns with the economic and environmental
impact of
Life Safety Code
(LSC) requirements
when a provider implements the "four-bed model." The commenters stated that
the department has not fully investigated which chapter of the LSC will be
applicable for this model, despite numerous requests to do so. The commenters
observed that the preamble acknowledges the probable existence of economic
costs but does not provide an estimate of the probable fiscal impact. Two
commenters stated that numerous requests have been made of the department
to make a determination of which LSC chapter will apply and the cost of compliance,
but the department has not responded. Three commenters stated that complying
with the LSC would effectively reclassify HCS-O homes as "facilities." The
commenters stated that current residential zoning codes that limit usage to
single family homes would also have an adverse effect. The department responds
that the final rule specifies at §419.674(e) the LSC requirements that
must be met if four individuals live and receive services in the same residence.
These residences must meet LSC requirements applicable to small residential
board and care facilities as contained in the 1994 edition of the LSC, which
has been adopted by the Texas State Fire Marshal's Office. The department
emphasizes that these are minimum requirements and recognizes that enforcement
of local building codes and fire safety requirements are within the jurisdiction
of a community's local officials rather than the department's. With regard
to limitations imposed by zoning restrictions, federal and state law provides
protection against zoning ordinances that have discriminatory effects on individuals
with disabilities and, therefore, the department does not anticipate homes
in which four individuals live will be significantly impacted by the described
zoning provisions.
Three commenters recommended that the department provide timely and adequate
training to all stakeholders. One of the commenters additionally recommended
that the department convene a workgroup to develop detailed guidelines and
procedures for the transition to and implementation/operation of the program
changes. One commenter stated that at least six months preparation time prior
to implementation was necessary in addition to training and technical assistance.
Two commenters stated that because local MRAs vary considerably, the transition
of case management responsibilities to local MRAs could be very confusing
unless everyone has been properly trained and roles and responsibilities have
been clearly defined for both the MRA and the providers. Two commenters recommended
that the department develop and disseminate detailed written guidelines to
all program providers, with one of the two recommending that the information
should include, at a minimum, the existing utilization guidelines and any
revised guidelines intended for use by the department in authorizing plans
of care above the 100% waiver program eligibility cap. The department responds
that a task force charged with addressing transition issues began meeting
in early January to assist the department in developing implementation strategies
to include planning for training and ongoing technical assistance for both
MRAs and program providers. The department agrees that training is essential
to properly implement significant systems changes and will include a review
of utilization review guidelines and plan of care authorization processes
in both the initial training and ongoing technical assistance.
Two commenters stated that unless the program changes as proposed are modified,
small non-profit providers are endangered. The commenters stated that these
providers have the potential to provide the highest quality of individualized
care in a cost-effective manner. The department responds that each program
provider will have to evaluate its own circumstances to determine what is
best for the future of its business. The changes to the program are significant
and could result in some providers choosing to cease operations.
Two commenters criticized the timing and manner in which individuals and
their families learned of the proposed changes, and requested that more timely
notification be provided to all stakeholders of planned changes to the program.
The commenter stated that the department postponed issuing a letter to individuals,
LARs, and concerned family members until after the public comment period on
the proposed new subchapter had ended. The commenter described the October
26, 1999, public hearing as the most critical opportunity for stakeholders
to share comments and stated that the hearing was not sufficiently publicized.
Further, the commenter stated that the department did not adequately address
a written request by a provider association in July that additional notification
mechanisms be used. The commenter recommended that the department utilize
other ways of notifying all stakeholders of major actions in addition to the
required publication of the proposal in the
Texas
Register
. Another commenter stated that individuals should be notified
in writing by their provider or the appropriate MRA of imminent changes and
given adequate time to provide comment. The department regrets that certain
commenters did not believe they were adequately informed of the proposed revisions.
The department solicited the advice and insight of program providers, MRA
staff, and advocate groups representing individuals and their families through
two workgroups in formulating the recommendations incorporated in this new
subchapter. The department is not able to inform and confer with each stakeholder
and, at the same time, propose changes that can allow the continuation of
services with the potential of extending services to persons on the waiting
list. The department has corresponded with individuals and their family members
to provide information about the changes to the program. The department has
responded to questions and concerns of family members about the program changes
and has provided information about the possible outcomes.
Two commenters expressed concern about the preparation and ability of local
MRAs to complete the processes necessary for the enrollment of an applicant
in the program. The commenter stated that the proposed new subchapter does
not clearly delineate standards by which MRAs will be expected to perform
enrollment, initial assessment, development of care plans, and service coordination
responsibilities. The commenter stated a thorough testing of each MRA's readiness
to handle these administrative oversight responsibilities is critical to prevent
delays, disruptions, and inconsistencies in initiating or continuing services.
This commenter recommended that, because some MRAs do not appear to have the
necessary expertise to handle these new responsibilities, extensive training
in this area be provided to MRAs and program providers along with the development
of detailed guidelines, processes, and mechanisms to ensure immediate resolution
to problems and barriers. The commenter expressed further concern that assigning
these enrollment activities to MRAs creates or perpetuates a conflict of interest
on the part of MRAs that also provide waiver program services and that without
detailed guidelines and effective oversight processes the conflict will be
compounded. The other commenter stated that having the MRAs assume these additional
responsibilities will result in increased administrative costs for the MRAs
and will result in delayed starts for services and lack of consistency in
how these activities are performed. This commenter expressed concern that
the MRA's involvement in the enrollment process will delay the start of services
and result in a lack of consistency in how these activities are performed.
The commenter questioned what mechanism would be in place to handle those
situations in which the MRA cannot perform these duties in a timely fashion.
The commenter stated that program providers can complain to the department
but asked to whom individuals and family members should complain. The department
responds that the expansion of the MRAs' role in the waiver program enrollment
process is part of the department's long-term efforts to establish clear distinctions
between functions as the mental retardation authority for an area and functions
as a provider of direct services. The department disagrees that the involvement
of the MRA in these processes will delay or result in inconsistencies in the
process. On the contrary, given the current number of operating waiver program
providers, the involvement of the MRAs at the point of enrollment may lead
to greater consistency in the processes. The department does not agree that
the current rule action compounds or creates a conflict of interest for the
MRAs and points out that, as has been true for some time, the capacity of
programs operated by MRAs continues to be limited by the department. It is
the department's intent to provide training and on-going technical assistance
to MRAs as they assume their expanded role in the enrollment process and to
monitor the progress of enrollments. In response to the commenter's question
on how and to whom individuals and family members should complain, the department
notes that each MRA is required to have a consumer complaint process and to
inform consumers of that process.
Two commenters expressed support for having local MRAs conduct the initial
assessment and develop the initial individual plan of care (IPC) for an individual
enrolling in a waiver program. One of the two recommended revising the provision
at §419.661 extend this policy to cover those individuals already receiving
HCS-O services with the MRA responsible for making revisions to the IPC and
the level of care (LOC) for each individual when those elements are due for
review. The department responds that the role of MRAs in the administration
of the program will be expanded. The role recommended by the commenter is
currently being evaluated in the department's pilot project, the Mental Retardation
Local Authority Program. The department believes that increasing the MRA's
role as defined in these rules is an appropriate step at this time.
Two commenters recommended that the department "sunset" those provisions
of the new subchapter that permit up to four individuals to live together
in a home before March 1, 2002. One of commenters stated that during the intervening
two-year period, the department should explore all other viable alternatives
and move toward a reimbursement model that is not based on living arrangement.
The department responds that it declines to set an expiration date for the
referenced portion of the rule. The department remains committed to an on-going
evaluation of the program to identify methods that will improve service provision
and cost efficiencies. In addition, the department notes that all department
rules are subject to a legislatively mandated review process every four years.
Two commenters stated that individuals and family members are reporting
to advocacy organizations that some providers who currently serve individuals
living in three-bed residences are moving wholesale to four-bed residences.
The commenters stated that these providers are not presenting these individuals
and family members with the option of staying in the current setting. The
commenters characterized this as disconcerting, given that the department
has indicated that the HCS program must begin to move away from the residential
model. The department has informed program providers that individuals are
to receive services in the location most appropriate to their needs. In addition,
the department has recommended that program providers not assume that all
individuals currently living in three person group homes should automatically
live in four-person group homes.
Two commenters recommended that the definition of "applicant" in §419.653(1)
be modified to state "a Texas resident or legally authorized representative
(LAR)." The commenters also recommended that the term "LAR" be added each
time the term "applicant" is used in the rule. The department declines to
add the term LAR in the definition of applicant because the term is reserved
to denote the person who is evaluated for HCS program eligibility and who,
if found eligible, is enrolled in the program.
Two commenters requested the department to define the term "interdisciplinary
team" using the language contained in state law. The commenters noted that
the interdisciplinary team makes recommendations rather than decisions which
are made by the individual or individual's legal representative. Similarly,
the commenters requested the term "conclusions" be replaced by the word "recommendations"
in the definition of "individual service plan" stating that individuals and
legal representatives make conclusions, not interdisciplinary teams. The department
responds that the definition of "interdisciplinary team" contained in the
proposed rules at §419.651 is not inconsistent with that contained in
the Persons with Mental Retardation Act. The department notes that, while
the Act requires that individuals and their legal representatives be invited
to be members of an interdisciplinary team, the HCS-O program specifically
includes an individual and his or her legal representative as part of the
core membership of the team. The active participation of an individual and
the individual's LAR in the development of the individual service plan is
integral to the success of the planning process and the final plan. The department
has revised the definition of "individual service plan" in this section by
adding the word "recommendations" to those factors that are documented in
the individual service plan but declines to remove the word "conclusions."
In the department's view the team's conclusions (based on its consideration
of assessment information, identified needs, preferences, and recommendations)
direct the provision of services to an individual.
Regarding the definition of "person-directed plan" in §419.653 (16),
two commenters suggested including the term "legally authorized representative
(LAR)" in reference to the individual's outcomes as identified in the person-directed
plan. The department responds that the person-directed planning process focuses
on identifying outcomes to be achieved for an individual rather than those
of the individual's LAR. The department recognizes the role of the LAR in
identifying outcomes for an individual and has revised the definition to state:
"a plan developed for an applicant ...that describes the supports and services
necessary to achieve the desired outcomes identified by the applicant or the
applicant's LAR on behalf of the applicant."
Two commenters requested the department to revise the definition of "service
coordinator" at §419.653 (18) to include assistance provided by a service
coordinator to the LAR. The department has revised the definition to state
that the service coordinator assists the individual, "or the individual's
LAR on behalf of the individual."
Two commenters stated that the definition of "service planning team" at §419.653
(19) be revised to indicate that the inclusion of other individuals on such
a team be based on the choice of an "applicant and/or LAR" rather than on
the choice of an "applicant and LAR." The commenters further questioned the
use of a "service planning team" rather than an interdisciplinary team. The
department responds it believes all individuals, including those who have
had a legal representative appointed, should participate, within their capabilities,
in choosing individuals to assist in the development of their service plans.
The department declines to make the recommended revision but has revised the
definition to clarify the role of an individual's LAR. With regard to the
second recommendation, these rules delineate the role of the Mental Retardation
Authority in facilitating an applicant's enrollment in the HCS-O program.
The plan to accomplish an individual's enrollment is developed by a service
planning team convened by an MRA service coordinator. This is a plan separate
from that developed by the interdisciplinary team convened by the HCS-O program
provider following an individual's enrollment. The distinction between the
two plans has been retained in the rules.
Regarding §419.658(b), a commenter recommended adding a statement
to more clearly indicate that the department must give special authorization
for individual plans of care having costs exceeding 100% of the estimated
annualized average per capita cost of ICF/MR services. The department declines
to include the additional explanation as recommended because the proposed
language clearly indicates the conditions for obtaining the department's approval
of individual plans of care exceeding 100% of the ICF/MR costs.
Two commenters stated that §419.665(a)(3) should be revised to specify
that an individual, or an individual's LAR, has a right to choose "continued
placement in a nursing home per HCFA ruling." The department declines to make
the revision as recommended because this portion of the rule speaks to the
eligibility criteria for HCS-O program services rather than the applicant's
right to choose between services for which he or she may be eligible. The
department has, however, revised §419.661(b) of the rule to address the
alternate choices presented to the applicant or the applicant's LAR during
the enrollment process.
Two commenters requested that the word "conclusions" be replaced by the
word "recommendations" in §419.657(b)(3) relating to the documentation
supporting the type and amount of services included on an individual plan
of care. It was the commenters' opinion that only individuals or their legally
authorized representatives make decisions regarding services. The department
declines to revise the subsection as recommended The individual and the individual's
legal representative are members of the team that develops the individual's
plan of care and may accept or reject the proposed plan of care but may not
override the team's conclusions.
Two commenters requested that the rule specify at §419.657(c)(2) the
individual or the individual's legally authorized representative as separate
signatories on the individual plan of care in order not to "lump" the individual
or representative together with other team members. Because the individual
and the individual's legally authorized representative are defined as required
members of both the service planning and interdisciplinary teams, the department
declines to modify the rule as requested.
With regard to the provisions concerning fair hearings at §419.665
and §419.666(g), two commenters asked how TDMHMR can terminate or discharge
a person "who is retarded" and asked if the Health Care Financing Administration
would approve of such action. The department notes that federal regulations
recognize that individuals may be discharged from program services and that
federal regulations require that the individual or the individual's LAR may
request a fair hearing if services are terminated. Examples of circumstances
under which an individual may be permanently discharged include the individual's
failure to continue to meet the eligibility criteria (e.g., financial eligibility
is lost or the individual 's plan of care exceeds the cost ceiling), the individual
voluntarily withdraws from the program, or the program provider can no longer
locate the individual.
Regarding §419.658(b), a commenter recommended adding a statement
to more clearly indicate that the department must give special authorization
for individual plans of care having costs exceeding 100% of the estimated
annualized average per capita cost of ICF/MR services. The department declines
to include the additional explanation as recommended because the proposed
language clearly indicates the conditions for obtaining the department's approval
of individual plans of care exceeding 100% of the ICF/MR costs.
Two commenters suggested that language be added to the certification principles
to include reference to an individual's LAR. At §419.668, the commenters
requested that the program providers' responsibility to ensure the protection
of an individual's rights includes the rights of an LAR and that language
be modified to indicate that family members could assist an individual in
making choices with the consent of the individual's LAR. The commenters also
recommended modification of all principles concerning the rights of individuals
in §419.669 to include reference to the individual's LAR rather than
in just three of the rights. The commenters further recommended that the department
revise the rule language at 419.669(a)(1) to indicate that an individual be
assisted in exercising the same rights as persons without disabilities "if
appropriate" and asked how persons with a profound level of mental retardation
could exercise the same responsibilities as people without disabilities. The
department responds that the language has been modified to assure that an
individual's rights and the rights of an individual as exercised by the LAR
on behalf of the individual are protected. With respect to the second recommendation,
the rule has been modified to indicate that family members may assist an individual
in making choices about living arrangements, work, etc. with the consent of
the individual or the individual's LAR. The department declines, however,
to suggest that there may be occasions when it is inappropriate to assist
an individual to exercise the same rights and responsibilities as those without
disabilities. It is the department's view that all individuals should be encouraged
to and assisted by both the program provider and by their legal representatives,
when one has been appointed, in exercising as much autonomy consistent with
their abilities as possible. Additionally, the department declines to include
reference to an LAR in each right because the department believes the language
at §419.669(38) appropriately conveys the commenters' intent.
Two commenters suggested that provisions at §419.670 (7) requiring
the program provider's assurance that children live in a family environment
such as with an adoptive or foster family may not always meet the needs of
the individual and recommended that the LAR rather than the program provider
determine that such an arrangement best meets the individual's needs. The
department replies that this provision is responsive to the TDMHMR Board's
stated value that all children should have the opportunity to live in a stable
family environment. The department explains that the principle directs the
program provider to ensure that all options for the provision of services
are presented for the consideration of the LAR of a minor child.
Two commenters requested the department to revise §419.670(9) to indicate
that any restriction of an individual's access to family or friends be approved
by the individual's LAR in addition to the IDT and the program provider's
chief executive officer. The commenters also recommended a similar revision
to numerous other portions of this section, which relates to service delivery,
stating that the rule had left out the areas where the LAR has the right to
make decisions. The department disagrees that the revision at the subsection
cited is necessary because as an LAR is a member of the IDT, the LAR must
approve any restriction of an individual's rights and that §419.674 (v)
requires the written informed consent of the individual or the individual's
LAR if restrictive procedures are used including when an individual's rights
are restricted. The department further believes that the decision-making authority
of an LAR is recognized by requirements at §419.670(15), which requires
the participation of an LAR in the review of the individual service plan and
individual plan of care and at §419.669(38), which states an individual's
right to have his or her LAR involved in planning for HCS-O program services.
Therefore, the department declines to revise each of the certification principles
enumerated by the commenters.
Concerning §419.671(a) and §419.674(b), two commenters recommended
that reference to an individual's LAR be included in the provisions requiring
a program provider's service planning and delivery system to be continually
responsive to changes in an individual's goals and that service delivery be
based upon choices made by individuals. The department has revised the first
section noted by the commenters to state that the provider's service planning
and delivery system be responsive to changes in the individual's condition,
abilities, needs, and to changes in the individual's personal goals as identified
by the individual or the individual's LAR on behalf of the individual. The
second section noted has likewise been revised to state that the service delivery
program is based upon the choices made by each individual or by the individual's
LAR on behalf of the individual.
With regard to §419.671(i) concerning the review of an individual's
status, two commenters requested that the language be revised to state that
the IDT make recommendations to the individual or the individual's LAR rather
than stating the IDT takes action based on its review. The department responds
that the recommended revision will not be made because the stated expectation
that the IDT take action based on its review would include the review and
consideration of recommendations with the individual or LAR.
With regard to the provisions concerning permanent discharge of an individual
from services at §419.672(a), two commenters asked if the program provider
must have department approval before discharging individuals from the program.
The commenters asked what the MRAs role is in the discharge process. In addition,
they questioned what could justify an individual being permanently discharged
from the program and if the Health Care Financing Administration would approve
of such discharge. The department responds that the program provider must
gain departmental approval prior to an individual's permanent discharge and
that the language has been revised to more clearly state that program providers
submit the proposed discharge of an individual to the department for approval.
If the department approves a permanent discharge, the department establishes
the effective date of the discharge. Examples of circumstances under which
an individual may be permanently discharged include the individual's failure
to continue to meet the eligibility criteria (e.g., financial eligibility
is lost or the individual 's plan of care exceeds the cost ceiling), the individual
voluntarily withdraws from the program, or the program provider can no longer
locate the individual. The department notes that federal regulations recognize
that individuals may be discharged from program services and that federal
regulations require that the individual or the individual's LAR may request
a fair hearing if services are proposed for terminated. The MRA does not have
a role in the processing or approval of discharge requests.
Two commenters requested that the individual and the individual's LAR be
notified of the findings of TDPRS investigations of abuse, neglect and exploitation
within 10 days of the conclusion of the investigation and that an individual's
LAR be notified of the individual's death as soon as possible but not later
than 24 hours after the death. The department has revised the language at §419.674(n)
to require that the program provider notify the individual and the individual's
LAR that a TDPRS investigation has been concluded and that the individual
or LAR may contact TDPRS to receive a report of the findings and an explanation
of the process to appeal such findings. The department explains that TDPRS
rules govern the disclosure of the findings of its investigations. The department
is currently working with TDPRS to clarify in its rules this department's
authority to direct program providers to release the findings of these investigations.
The department has also revised §419.674(w) to require notification of
an individual's LAR in the event of the individuals death as soon as possible
but no later than 24 hours following the death when the program provider has
reason to believe that the LAR is unaware to the death.
With regard to §419.675, a commenter suggested that the department
consider strengthening the corrective action a program provider must take
when violations related to the provision of health care services are identified.
In this commenter's view, the rules would allow a high number of principles
to be found out of compliance without the application of a sanction against
a program provider. Regarding §419.675(f), two other commenters stated
that a hazard to health, safety, and welfare-- a condition that could result
in life-threatening harm within 48 hours-- should not have to be so serious
before immediate action occurs to protect the individuals and recommended
this be addressed in policy. The department responds that the provisions of
the rule allow the department to apply a sanction when any number of principles
is found to be out of compliance. Subsections 419.675(f) and (g) provide for
the application of sanctions at the department's discretion when hazardous
conditions exist (which would include concerns about health care services)
or when any item of non-compliance is determined to be of a serious or pervasive
nature. With regard to the commenters' concern that the rule provide for immediate
action to protect individuals if "less serious" hazards exist, the department
responds that the rule does address such circumstances under the provisions
of §419.657(g) of the rule. This subsection authorizes the department
to apply any sanction provided under the rules, including those stated in
the §419.675(f), if a program provider's failure to comply with any certification
principle is determined to be of a serious or pervasive nature. The department
further explains that the provisions of §419.667(e), which authorizes
the department to conduct an unannounced review of the program provider at
any time, allows the department to exercise actions which may be necessary
to protect individuals. The department, therefore, declines to modify the
rule.
One commenter recommended the department consider strengthening the Life
Safety Code regulations for four-person facilities that house persons who
need assistance to evacuate. The commenter stated that the rules do not preclude
"a four bed residential unit" from being a manufactured home, which the commenter
pointed out "is not designed to house multiple persons who cannot self-evacuate."
The department responds that it sees no reason to preclude manufactured housing
as a potential residence for four individuals when all applicable Life Safety
Code requirements are met as verified in accordance with provisions in §419.678
of this rule (relating to Department Approval of Residences).
One commenter recommended that §419.670, regarding the authorization
of adaptive aids by the interdisciplinary team, be revised to require documentation
of "medical necessity" for adaptive aids costing less than $500. The department
declines to revise the provision as recommended because the necessity for
an adaptive aid of any cost must be based upon documented needs as derived
from assessments of an individual's specific needs as required in §419.657,
Individual Plan of Care.
The new rules are adopted under the Texas Health and Safety Code, §532.015(a),
which provides the Texas Board of Mental Health and Mental Retardation 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 delegated to the department the authority to operate the HCS-O program.
§419.653.Definitions.
The following words and terms, when used in this subchapter, shall
have the following meanings, unless the context clearly indicates otherwise:
(1)
Applicant -- A Texas resident seeking services in the HCS-O
program.
(2)
Department -- The Texas Department of Mental Health
and Mental Retardation
(3)
HCS-O -- The Home and Community-Based Services --
OBRA program operated by the department as authorized by the Health Care Financing
Administration (HCFA) in accordance with §1915(c) of the Social Security
Act.
(4)
HCS-O case manager -- An employee of the program provider
who is responsible for the overall coordination and monitoring of services
provided to an individual enrolled in the HCS-O program.
(5)
ICF/MR -- The Intermediate Care Facilities Program
for Persons with Mental Retardation or Related Conditions.
(6)
IDT (interdisciplinary team) -- A planning team constituted
by the program provider for each individual consisting of, at a minimum, the
individual and LAR, HCS-O case manager, and a nurse. Other applicable persons
assigned to provide or who are currently providing direct services to the
individual and, as appropriate, a physician and other professional personnel
may be included as team members as necessary.
(7)
IPC (individual plan of care) -- A document that describes
the type and amount of each HCS-O program service component to be provided
to an individual and describes medical and other services and supports to
be provided through non-program resources.
(8)
IPC cost -- Estimated annual cost of program services
included on an IPC.
(9)
IPC year -- A 12-month period of time starting on
the date an authorized initial or renewal IPC begins.
(10)
Individual -- A person enrolled in the HCS-O program.
(11)
ISP (individual service plan) -- A document developed
by the IDT, from which the IPC is derived, which describes the assessments,
recommendations, deliberations, conclusions, justifications and outcomes regarding
the specific services provided to the individual by the program provider.
(12)
LAR (legally authorized representative) -- A person
authorized by law to act on behalf of a person with regard to a matter described
in this subchapter, and may include a parent, guardian, or managing conservator
of a minor, or the guardian of an adult.
(13)
LOC (level of care) -- A determination given to an
individual as part of the eligibility determination process based on data
submitted on the MR/RC Assessment.
(14)
MRA (mental retardation authority) -- An entity to
which the Texas Mental Health and Mental Retardation Board delegates its authority
and responsibility within a specified region for planning, policy development,
coordination, and resource development and allocation, and for supervising
and ensuring the provision of mental retardation services to people with mental
retardation in one or more local service areas.
(15)
MR/RC Assessment -- A form used by the department
for LOC determination and LON assignment.
(16)
PDP (person-directed plan) -- A plan developed for
an applicant in accordance with §419.661 of this title (relating to Process
for Enrollment of Applicants) that describes the supports and services necessary
to achieve the desired outcomes identified by the applicant or the applicant's
LAR on behalf of the applicant.
(17)
Program provider -- An entity that provides HCS-O
program services under a waiver program provider agreement with the department
as defined in Chapter 419, Subchapter O of this title (relating to Enrollment
of Medicaid Waiver Program Providers)
(18)
Service coordinator -- An employee of an MRA responsible
for assisting an individual, or the LAR on behalf of the individual, in accessing
medical, social, educational, and other appropriate services including HCS-O
program services
(19)
Service planning team -- A planning team constituted
by an MRA consisting of an applicant, the applicant's LAR, service coordinator,
and other persons chosen by the applicant and the LAR.
§419.654.Description of the Home and Community-Based Services-OBRA (HCS-O) Program.
(a)
The Home and Community-based Services -- OBRA (HCS-O) program
is a Medicaid waiver program approved by the Health Care Financing Administration
(HCFA) pursuant to §1915(c) of the Social Security Act. It provides community-based
services and supports to eligible individuals as an alternative to the Intermediate
Care Facilities for Persons with Mental Retardation or Related Conditions
(ICF/MR) Program. The HCS-O program is operated by the Texas Department of
Mental Health and Mental Retardation under the authority of the Texas Health
and Human Services Commission.
(b)
Enrollment in the HCS-O program is limited to the number
of individuals in specified target groups and to the geographic areas approved
by HCFA.
(c)
HCS-O program service components, described in §419.670
of this title (relating to Certification Principles: Service Delivery), are
selected for inclusion in an individual's Individual Plan of Care (IPC) to
assure the individual's health and welfare in the community, supplement rather
than replace that individual's natural supports and other community services
for which the individual may be eligible, and prevent the individual's admission
to institutional services. The following service components are available
under the HCS-O program:
(1)
case management
(2)
counseling and therapies provided by appropriately
licensed professionals including:
(A)
physical therapy;
(B)
occupational therapy;
(C)
speech and language pathology;
(D)
social work;
(E)
psychology; and
(F)
dietary services;
(3)
nursing care provided by licensed nurses;
(4)
habilitation, including:
(A)
supported living, excluding room and board;
(B)
habilitation training;
(C)
pre-vocational training; and
(D)
supported employment, if the service has been denied or
is otherwise unavailable to an individual through a program operated by a
state rehabilitation agency or the public school system;
(5)
Respite is available up to a maximum of 30 days
per IPC year.
(6)
Adaptive aids are provided up to a maximum of $5,000
per IPC year.
(7)
Minor home modifications are provided up to a life-time
maximum of $7,500, after which up to $300 per IPC year is provided for maintenance
or additional modifications.
(d)
The department specifies, through the HCS-O automated enrollment
and billing system, the counties the program provider is authorized to serve
pursuant to each waiver program provider agreement. The counties specified
for a single provider agreement must be contiguous. The program provider may
enter into more than one provider agreement to provide HCS-O program services,
but may have only one provider agreement to provide HCS-O program services
per county.
§419.656.Calculation of Co-payment.
(a)
Individuals and eligible couples determined to be financially
eligible based on the special institutional income limit may be required to
share in the cost of HCS-O program services. The method for determining the
individual's or couple's co-payment is described in subsections (b) and (c)
of this section and documented on the Texas Department of Human Services (TDHS)
Medical Assistance Only Worksheet.
(b)
The co-payment amount as determined by TDHS is the individual's
or couple's remaining income after all allowable expenses have been deducted.
The co-payment amount is applied only to the cost of home and community-based
services funded through the HCS-O program and specified on each individual's
IPC. The co-payment must not exceed the cost of services actually delivered.
The co-payment must be paid by the individual or couple, authorized representative,
or trustee directly to the program provider in accordance with the TDHS determination.
When calculating the co-payment amount for individuals or couples with incomes
that exceed the maximum Personal Needs Allowance the following are deducted:
(1)
the cost of the individual's or couple's maintenance needs
which must be equivalent to the special institutional income limit for eligibility
under the Texas Medicaid program;
(2)
the cost of the maintenance needs of the individual's
or couple's dependent children. This amount is equivalent to the TANF basic
monthly grant for children or a spouse with children, using the recognizable
needs amounts in the TANF Budgetary Allowances Chart; and
(3)
the costs incurred for medical or remedial care which
are necessary but are not subject to payment by Medicare, Medicaid, or any
other third party. These include the cost of health insurance premiums, deductibles,
and co-insurance.
(c)
When calculating the co-payment amount for individuals
with community spouses, TDHS determines the amount of the recipient's income
applicable to payment in accordance with §1924 of the Social Security
Act and 42 CFR 435.726.
§419.657.Individual Plan of Care.
(a)
An initial IPC must be developed for each applicant in
accordance with §419.661 (relating to Process for Enrollment of Applicants)
and reviewed and up-dated for each individual whenever the individual's needs
for services and supports change, but no less than annually, in accordance
with §419.662 (relating to Revisions and Renewals of Individual Plans
of Care (IPCs) and Levels of Care (LOCs) for Enrolled Individuals).
(b)
The IPC must specify the type and amount of each service
component to be provided to the individual, as well as services and supports
to be provided by other sources during the IPC year. The type and amount of
each service component must be supported by:
(1)
documentation that other sources for the service component
are unavailable and the service component does not replace existing supports;
(2)
assessments of the individual that identify specific
service components necessary for the individual to live in the community,
to ensure the individual's health and welfare in the community, and to prevent
the need for institutional services; and
(3)
documentation of deliberations and conclusions of
the service planning team or IDT, as appropriate, that the service components
are necessary for the individual to live in the community, to ensure the individual's
health and welfare in the community, and prevent the need for institutional
services.
(c)
An individual's IPC must be approved by the department
and is subject to review in accordance with §419.658 (relating to Department
Review of Individual Plan of Care (IPC)).
(1)
The IPC must be signed and dated by the required IDT members,
and, for an initial IPC, by the MRA service coordinator indicating concurrence
that the services recommended in the IPC are necessary to prevent institutionalization,
are necessary for the individual to live in the community, and are appropriate
to assure the individual's health and welfare in the community.
(2)
The IPC must be signed and dated in accordance with
paragraph (1) of this subsection prior to submission to the department and
the original must be maintained in the individual's record.
(3)
If the IPC is submitted for approval electronically,
the submitted IPC must contain information identical to that on the signed
copy of the IPC.
(d)
The program provider must provide services in accordance
with an individual's approved IPC.
(e)
The program provider must retain in the individual's record
results and recommendations of individualized assessments that support the
current need for each service component included in the IPC.
§419.658.Department Review of Individual Plan of Care (IPC).
(a)
The department may review supporting documentation specified
in §419.657(b) of this title (relating to Individual Plan of Care) to
determine if the type and amount of HCS-O program services specified in an
IPC are appropriate. The program must submit documentation supporting the
IPC to the department in accordance with the department's request. The department
may modify an IPC based on its review.
(b)
Before approving an IPC having an IPC Cost that exceeds
100% of the estimated annualized average per capita cost for ICF/MR services,
the department will review the IPC to determine if the type and amount of
HCS-O program services specified in the IPC are appropriate and supported
by documentation specified in §419.657(b) of this title (relating to
Individual of Plan of Care). A recommended IPC with such an IPC Cost must
be signed and dated by the IDT and submitted to the department with documentation
supporting the IPC, as described in §419.657(b) of this title (relating
to Individual Plan of Care) prior to the electronic submission of the IPC.
After reviewing the supporting documentation, the department may request additional
documentation. The department will review any additional documentation submitted
in accordance with its request, and electronically approve the recommended
IPC or send written notification that the recommended IPC has been approved
with modifications.
§419.661.Process for Enrollment of Applicants.
(a)
The MRA will assist an applicant for HCS-O program services,
or the LAR on behalf of the applicant, in accordance with §402.155 of
this title (relating to Provision of Specialized Services and Alternate Placement
Services).
(b)
The service coordinator will inform the applicant or the
LAR of the applicant's right to choose between participation in the ICF/MR
program in a state school setting or a community-based setting, the HCS-O
program, or other services. The MRA must document the applicant's choice of
programs or the LAR's choice on behalf of the applicant on the HCS-O Verification
of Choice form. Copies of the HCS-O Verification of Choice form are available
by contacting the Texas Department of Mental Health and Mental Retardation,
Office of Medicaid Administration, P.O. Box 12668, Austin, Texas 78711-2668.
(1)
If the applicant, or the LAR on behalf of the applicant,
chooses participation in the HCS-O program, the MRA will assign a service
coordinator who develops a person-directed plan (PDP) in conjunction with
the service planning team. The service planning team must include the applicant
and the LAR acting on the applicant's behalf and may include other persons
chosen by the applicant and the LAR. At minimum, the PDP must include the
following:
(A)
a description of the applicant's current services and supports,
identifying those that will be available if the applicant is enrolled in the
HCS-O program;
(B)
a description of outcomes to be achieved for the applicant
through the HCS-O program, including determinations of further service needs
through assessments to be accomplished after enrollment, and justification
for each service component to be included in the IPC;
(C)
documentation that the type and amount of each service
component included in the individual's IPC:
(i)
are necessary for the individual to live in the community,
to ensure the individual's health and welfare in the community, and to prevent
the need for institutional services; and
(ii)
do not replace existing natural supports or other non-program
sources for the service components.
(D)
a description of all determinations needed to establish
the applicant's eligibility for SSI or Medicaid benefits and for an LOC; and
(E)
a description of actions and methods to be used to reach
identified service outcomes, projected completion dates, and person(s) responsible
for completion.
(2)
The MRA compiles and maintains information necessary
to process the applicant's request, or LAR's request on behalf of the applicant,
for enrollment in the HCS-O program.
(A)
If the applicant's financial eligibility for the HCS-O
program must be established, the MRA initiates, monitors, and supports the
processes necessary to obtain a financial eligibility determination.
(B)
The MRA must complete an MR/RC Assessment if a LOC determination
is necessary, in accordance with §419.659 of this title (relating to
Level of Care (LOC) Determination).
(C)
The MRA must develop a proposed IPC with the applicant
or the LAR based on the PDP and in accordance with this subchapter.
(3)
The service coordinator must inform the applicant
or the LAR of all available HCS-O program providers in the local service area.
The service coordinator must:
(A)
provide information to the applicant or the LAR regarding
program providers in the MRA's local service area;
(B)
review the proposed IPC with potential program providers
as requested by the applicant or the LAR;
(C)
arrange for meetings/visits with potential program providers
as desired by the applicant or the LAR;
(D)
assure that the applicant's or LAR's choice of a program
provider is documented, signed by the applicant or the LAR, and retained by
the MRA in the applicant's record; and
(E)
negotiate/finalize the proposed IPC and the date services
will begin with the selected program provider. If the service coordinator
and the selected program provider are unable to agree on the proposed IPC,
the service coordinator and program provider will consult jointly with the
department to achieve resolution.
(c)
When the proposed IPC is finalized and the selected program
provider has agreed to deliver the services delineated on the IPC, the MRA
will submit the enrollment information to the department. When appropriate,
the MRA will also submit supporting documentation as required in §419.658
(b) (relating to Department Review of Individual Plan of Care (IPC)).
(d)
The department will notify the applicant or the LAR, the
selected program provider, and the MRA of its approval or denial of the applicant's
enrollment. When enrollment is approved, the department must authorize the
applicant's enrollment in the HCS-O program through the automated enrollment
and billing system and issue an enrollment letter that includes the effective
date of the applicant's enrollment in the HCS-O program.
(e)
Upon notification of an applicant's enrollment approval,
the MRA must provide the selected program provider copies of all enrollment
documentation, and associated supporting documentation including relevant
assessment results and recommendations and the applicant's PDP.
(f)
The selected program provider must not initiate services
until notified of the department's approval of the individual's enrollment.
(g)
The selected program provider must develop an initial ISP
in accordance with §419.670 of this title (relating to Certification
Principles: Service Delivery) based on the PDP and IPC as developed by the
service planning team.
§419.665.Fair Hearing.
Any individual whose request for eligibility for the HCS-O program
is denied or is not acted upon with reasonable promptness, or whose services
have been terminated, suspended or reduced by the department is entitled to
a fair hearing in accordance with Chapter 419, Subchapter G of this title
(relating to Medicaid Fair Hearings).
§419.666.Provider Reimbursement.
(a)
The department will pay the program provider for service
components as follows:
(1)
case management, habilitation, counseling and therapies,
nursing, and respite are paid for in accordance with the reimbursement rate
for the specific service component; and
(2)
adaptive aids and minor home modifications are paid
for based on the actual cost of the item.
(b)
The program provider must accept the department's payment
for a service component as payment in full for the service component.
(c)
If the program provider disagrees with the enrollment date
of an individual as determined by the department, the program provider must
notify the department in writing of its disagreement, including the reasons
for the disagreement, within 180 days after the end of the month in which
the provider receives the enrollment letter. If the program provider disagrees
with an enrollment date of which the program provider received notice prior
to March 1, 2000, the program provider must notify the department in writing
of its disagreement, including the reasons for the disagreement, by September
1, 2000. The department will review the information submitted by the program
provider and notify the program provider of its determination regarding the
individual's enrollment date.
(d)
The program provider must prepare and submit claims for
service components in accordance with this subchapter, the HCS-O Provider
Agreement and the HCS-O Provider Manual.
(e)
The program provider must submit an initial claim for a
service component as follows:
(1)
habilitation, respite care, case management, counseling
and therapies, and nursing must be electronically transmitted to the department
via the HCS-O automated enrollment and billing system; and
(2)
adaptive aids and minor home modifications must be
submitted in writing to the department for entry into the automated enrollment
and billing system.
(f)
The program provider must submit a claim for a service
component with the department by the latest of the following dates:
(1)
within 95 calendar days after the end of the month in which
the service component was provided;
(2)
within 45 calendar days after the date of the enrollment
approval letter issued by the department; or
(3)
within 95 calendar days after the end of the month
in which the program provider receives a dated response from a source other
than the HCS-O program to a correctly submitted request for payment for the
service component.
(g)
If an individual is temporarily or permanently discharged
from the HCS-O program the program provider may submit a claim for habilitation,
respite care, case management, counseling and therapies, and nursing for the
day of the individual's discharge.
(h)
If the department rejects a claim for adaptive aids or
minor home modifications, the program provider may submit a corrected claim
to the department. The corrected claim must be received by the department
within 180 days after the end of the month in which the service component
was provided or within 45 days after the date of the notification of the rejected
claim, whichever is later.
(i)
If the program provider submits a claim for an adaptive
aid, the program provider must submit documentation that sources of payment
other than the HCS-O program for which the individual may be eligible, including
Medicare, Medicaid (such as Texas Health Steps and Home Health), TRC, the
public school system, and private insurance, denied the submitted claim. Such
documentation includes evidence that a proper, complete, and timely request
for payment was made to the other payment source and that payment was not
made.
(j)
If the program provider submits a claim for an adaptive
aid that costs $500 or more or for a minor home modification that costs $1000
or more, the program provider must submit an individualized assessment conducted
by a professional qualified to assess whether the aid or modification is necessary
and appropriate to address the individual's specific needs.
(k)
The department will not pay the program provider for a
service component or will recoup any payments made to the program provider
for a service component if:
(1)
the individual receiving the service component is, at the
time the service component was provided, ineligible for the HCS-O program
or Medicaid benefits, or was an inpatient of a hospital, nursing facility,
or ICF-MR;
(2)
the service component is provided to an individual
during a period of time for which the program provider does not provide a
signed and dated IPC for the individual;
(3)
the service component is not included on the signed
and dated IPC of the individual in effect at the time the service component
was provided;
(4)
the service component does not meet the service definition
in or is not provided in accordance with the HCS-O Provider Manual;
(5)
the program provider provides service in a residence
in which four individuals or other persons receiving similar services live
without the department's approval as required in §419.678 of this title
(relating to Department Approval of Residences);
(6)
the service component is not documented in accordance
with the HCS-O Provider Manual;
(7)
the claim for the service component is not prepared
and submitted in accordance with the HCS-O Provider Manual;
(8)
written documentation of an individualized assessment
as required by subsection (j) of this section is not submitted by the program
provider;
(9)
the department determines that the service component
would have been paid for by a source other than the HCS-O program if the program
provider had submitted to the other source a proper, complete, and timely
request for payment for the service component;
(10)
the service component is provided during a period
of time for which the program provider does not provide a signed and dated
MR/RC Assessment for the individual;
(11)
the service component is provided during a period
of time for which the individual did not have a LOC determination;
(12)
the service component is provided by a service provider
who does not meet the qualifications to provide the service component as delineated
in the HCS-O Provider Manual and the approved HCS-O Waiver;
(13)
the service component is not provided in accordance
with a signed and dated IPC meeting the requirements set forth in §419.657
of this title (relating to Individual Plan of Care);
(14)
the service component is not provided in accordance
with the plan for services described in the individual's ISP or PDP; or
(15)
the service component is provided prior to the individual's
enrollment date into the HCS-O program.
(l)
The program provider must keep any records necessary to
disclose the extent of the service components provided by the program provider
and, on request, provide the department any such records and any information
regarding claims filed by the program provider.
(m)
The program provider must refund to the department any
overpayment made to the program provider within 60 days after the program
provider's discovery of the overpayment or receipt of a notice of such discovery
from the department, whichever is earlier.
§419.668.Certification Principles: Development and Philosophy of Program Operations.
The program provider must:
(1)
implement a teaching and training philosophy that emphasizes
improved, independent functioning for each individual;
(2)
ensure that each individual's humanity and dignity
is respected;
(3)
ensure that the rights of the individual or the individual's
rights as exercised by the LAR on behalf of the individual are protected;
(4)
ensure that the individual, the individual's LAR,
and family members, with the consent of the individual or the individual's
LAR, participate in making choices about where the individual will live, attend
school, work, and take part in leisure activities.
§419.669.Certification Principles: Individual's Rights.
(a)
The program provider shall assist the:
(1)
individual, or the LAR on behalf of the individual in exercising
the same rights and responsibilities exercised by people without disabilities;
and
(2)
individual's LAR or family members in encouraging
the individual to exercise the same rights and responsibilities exercised
by people without disabilities.
(b)
The program provider shall protect and promote the following
rights of the individual:
(1)
to manage, be trained to manage or have assistance in managing
financial affairs upon documentation of the individual's written request for
assistance;
(2)
to access public accommodations;
(3)
to be informed of requirements for participation;
(4)
to be informed both orally and in writing of all the
HCS-O program services available and rules pertaining to the individual's
enrollment and participation in the program provider's program as well as
any changes in these that occur;
(5)
to be informed of the individual's ISP and IPC including
any restrictions affecting the individual's rights;
(6)
to participate in decisions and be informed of the
reasons for decisions regarding plans for enrollment, service termination,
transfer, relocation, or denial of HCS-O program services;
(7)
to be informed about the individual's own health,
mental condition, and related progress;
(8)
to be informed of the name and qualifications of any
person serving or treating the individual and to choose among various available
service providers;
(9)
to receive visitors without prior notice to the program
provider unless such rights are contraindicated by the individual's rights
or the rights of other individuals;
(10)
to have privacy in visitation with family and other
visitors;
(11)
to make and receive telephone calls;
(12)
to send and to receive sealed and uncensored mail;
(13)
to attend religious activities of choice;
(14)
to participate in developing a pre-discharge plan
that addresses assistance for the individual after he or she leaves the program;
(15)
to be free from restraints;
(16)
to live in a normative residential living environment;
(17)
to access free public schooling according to the
Texas Education Code;
(18)
to live where the individual is within proximity
of and can access treatment and services that are best suited to meet the
individual's needs and abilities and enhance that individual's strengths;
(19)
to have a personalized ISP and IPC based on individualized
assessments that meet the individual's needs and abilities and enhance that
individual's strengths;
(20)
to help decide what the ISP will be;
(21)
to be informed as to the progress and/or lack of
progress being made in the execution of the ISP;
(22)
to choose from the same services that are available
to all community members;
(23)
to be evaluated as needed, but at least annually,
to determine the individual's strengths, needs, preferences, and appropriateness
of the ISP;
(24)
to complain at any time to any member of the program
provider's personnel;
(25)
to receive appropriate support and encouragement
from any member of the program provider's personnel if the individual dislikes
or disagrees with the services being rendered or thinks that his or her rights
are being violated;
(26)
to live free from abuse, neglect or exploitation
in a healthful, comfortable, and safe environment;
(27)
to participate in decisions regarding the individual's
living environment including location, furnishings, other individuals residing
in the residence, and moves to other residential locations;
(28)
to have personnel who are accountable to the individual
and, at the same time, are responsible to the overall functioning of the HCS-O
program;
(29)
to have active personal assistance in exercising
civil and self-advocacy rights attainment by provisions for:
(A)
complaints,
(B)
voter's registration,
(C)
citizenship information and education,
(D)
advocacy services, and
(E)
guardianship;
(30)
to receive counseling concerning the use of
money;
(31)
to possess and to use money in personal and individualized
ways or be learning to do so;
(32)
to access all financial records regarding the individual's
funds;
(33)
to have privacy during treatment and care of personal
needs;
(34)
to have privacy during visits by his or her spouse
if living apart;
(35)
to share a room when both the husband and wife are
living in the same residence;
(36)
to be free from serving as a source of labor when
residing with persons other than family members;
(37)
to communicate, associate and to meet privately with
individuals of his or her choice, unless this violates the rights of another
individual;
(38)
to participate in social, recreational, and community
group activities;
(39)
to have his or her LAR involved in activities including
but not limited to:
(A)
being informed of all rights and responsibilities when
the individual is enrolled in the program provider's program as well as of
any changes in rights or responsibilities before they become effective;
(B)
participating in the planning for HCS-O program services;
and
(C)
advocating for all rights of the individual;
(40)
to be informed of the individual's option to
transfer to other HCS-O programs as chosen by the individual or LAR as often
as desired;
(41)
to be informed orally and in writing of any charges
assessed by the provider against the individual's personal funds, the purpose
of those charges, and effects of the charges in relation to the individual's
financial status;
(42)
to complain to the department when the provider's
resolution of a complaint is unsatisfactory to the individual or LAR, and
to be informed of the TDMHMR telephone number to initiate complaints (1-800-252-8154).
(c)
The program provider shall provide the individual, the
individual's LAR, or family member, with a written copy of those rights listed
in subsection (b) of this section.
(d)
The program provider shall document that the individual,
LAR, or family member is informed orally of the rights described in subsection
(b) of this section and is presented with a current copy of those rights:
(1)
upon enrollment of the individual in the program provider's
program;
(2)
upon revisions of subsection (b) of this section by
the department; and
(3)
upon request.
(e)
The documentation required in subsection (d) of this section
shall be signed by:
(1)
the individual or the individual's LAR;
(2)
the program provider or employee who explained the
rights to the individual, LAR, or family member; and
(3)
a third-party witness.
§419.670.Certification Principles: Service Delivery
The program provider shall:
(1)
serve eligible applicants who have chosen the program provider
on a zero-reject basis;
(2)
serve eligible applicants without regard to age, sex,
race or level of disability;
(3)
provide or obtain as needed and without delay all
HCS-O program services;
(4)
ensure that each applicant or individual, or LAR on
behalf of the applicant or individual, has chosen where the individual or
applicant is to reside from available options consistent with the individual's
needs;
(5)
encourage involvement of the individual's LAR or family
members and friends in all aspects of the individual's life and provide as
much assistance and support as is possible and constructive;
(6)
ensure that a minor individual who is unable to live
in the natural or adoptive family home is supported in a family-like environment,
such as a foster family;
(7)
justify the reasons for serving a minor individual
outside the natural or adoptive family home;
(8)
make every possible effort to return a minor individual
being served outside his or her natural or adoptive family home to his or
her family home as soon as possible;
(9)
allow the individual's family members and friends
access to an individual without arbitrary restrictions unless exceptional
conditions are justified by the individual's IDT, documented in the ISP, and
approved by program provider's chief executive officer;
(10)
ensure that an individual's residential, educational,
and work settings are changed as necessitated by changes in the individual's
age, skills, attitudes, likes, dislikes, and conditions;
(11)
ensure that the individual who is living outside
the family home is living in a residence that maximizes opportunities for
interaction with community members to the greatest extent possible;
(12)
ensure that each individual has a current:
(A)
IPC;
(B)
ISP; and
(C)
LOC;
(13)
ensure that the ISP of each individual is different
from others and reflects the results of assessments of the individual's and
his or her family's strengths, the individual's personal goals and the family's
goals for the individual, and the individual's needs rather than what services
are available;
(14)
ensure that the ISP of each individual includes objectives
derived from assessments of the individual's strengths, personal goals, and
needs and are described in observable, measurable, or outcome-oriented terms;
(15)
ensure that the ISP and IPC for each individual is
reviewed and completed at least annually by the:
(A)
individual;
(B)
individual's LAR or members of the individual's family,
as appropriate; and
(C)
other members of the IDT, as described in §419.671
of this title (relating to Certification Principles: Interdisciplinary Team
Operations);
(16)
ensure that each individual's progress or lack
of progress toward goals and objectives is documented in observable, measurable,
or outcome-oriented terms;
(17)
ensure that each individual has opportunities to
develop relationships with peers with and without disabilities and receives
support when the individual chooses to develop such relationships;
(18)
unless contraindications are documented with justification
by the IDT, ensure that a school-age individual receives educational services
in a six-hour-per-day program five days a week provided by the local school
district and that no individual receives educational services at a state school/state
center educational setting;
(19)
unless contraindications are documented with justification
by the IDT, ensure that an adult individual under retirement age is participating,
based on choice, in a day activity which promotes achievement of ISP outcomes
for at least six hours per day, five days per week;
(20)
ensure that individuals who perform work for the
program provider are paid on the basis of their production or performance
and at a wage level commensurate with that paid to persons who are without
disabilities and who would otherwise perform that work. Compensation is based
on local, state and federal regulations, including Department of Labor regulations,
as applicable;
(21)
ensure that individuals who produce marketable goods
and services in habilitation training programs are paid at a wage level commensurate
with that paid to persons who are without disabilities and who would otherwise
perform that work. Compensation is based on requirements contained in the
Fair Labor Standards Act which include:
(A)
accurate recordings of individual production or performance;
(B)
valid and current time studies or monitoring as appropriate;
and
(C)
prevailing wage rates;
(22)
ensure that individuals provide no training,
supervision or care to other individuals unless they are qualified and compensated
in accordance with local, state and federal regulations, including Department
of Labor regulations;
(23)
unless contraindications are documented with justification
by the IDT, ensure that a pre-school-age individual receives an early childhood
education with appropriate activities and services, including but not limited
to small group and individual play with peers without disabilities;
(24)
unless contraindications are documented with justification
by the IDT, ensure that an individual's routine provides opportunities for
leisure time activities, vacation periods, religious observances, holidays,
and days-off, consistent with the individual's choice and the routines of
other members of the community;
(25)
unless contraindications are documented with justification
by the IDT, ensure that an individual of retirement age has opportunities
to participate in day activities appropriate to individuals of the same age
and consistent with an individual's or his or her LAR's choice;
(26)
unless contraindications are documented with justification
by the IDT, ensure that each individual is offered choices and opportunities
for accessing and participating in community activities and experiences available
to peers without disabilities;
(27)
assist the individual to meet as many of his or her
needs as possible by using generic community services and resources in the
same way and during the same hours as these generic services are used by the
community at large;
(28)
ensure that each individual lives in a home that
is a typical residence within the community;
(29)
ensure that the residence, neighborhood and community
meet the needs and choices of each individual and provide an environment that
assures the health, safety, comfort and welfare of the individual;
(30)
unless contraindications are documented with justification
by the IDT and, if possible, assist an individual to live near family and
friends and needed or desired community resources consistent with the individual's
choice;
(31)
ensure that an individual experiences residential
relocation in a planned manner as indicated by his or her needs;
(32)
provide adaptive aids including the full range of
lifts, mobility aids, control switches/pneumatic switches and devices, environmental
control units, medically necessary supplies, and communication aids and repair
and maintenance of the aids as determined by the individual's needs and in
compliance with the definition in the approved waiver request;
(33)
ensure that adaptive aids costing less than $500
each are authorized by the IDT and that adaptive aids costing more than $500
each are authorized by the IDT based on written evaluations and recommendations
by the individual's physician, a licensed occupational or physical therapist,
a psychologist, a licensed nurse, a licensed dietician, or a licensed speech
and language pathologist qualified to assess the individual's need for the
specific adaptive aid;
(34)
ensure that the HCS-O case manager is employed by
the program provider, serves no more than 30 individuals, and that case management
is available as determined by individual need;
(35)
provide case management in compliance with the definition
in the approved waiver request including:
(A)
coordinating the development and implementation of the
individual's ISP;
(B)
coordinating the delivery of the individual's IPC;
(C)
coordinating and monitoring the delivery of HCS-O program
services and services from other sources;
(D)
integrating various aspects of services delivered under
the HCS-O program and through other sources;
(E)
recording each individual's progress;
(F)
developing the pre-discharge plan;
(G)
record keeping; and
(H)
arranging transportation.
(36)
ensure that the HCS-O case manager provides
only case management and that the provision of such is exclusive of any other
assignments or services pertaining to an individual;
(37)
ensure that the primary purpose of case management
is to provide a single identified person accountable to the individual and
his or her LAR for coordinating the individual's overall program;
(38)
ensure that the individual and his or her LAR are
informed of the name and telephone number of the HCS-O case manager and are
informed whenever there is a change in the case manager or the case manager's
telephone number;
(39)
ensure that the HCS-O case manager informs the individual
and his or her LAR about the individual's ISP, the individual and his or her
LAR agree to changes in the individual's ISP prior to implementing the changes,
and the HCS-O case manager is available to answer questions asked by the individual
or by his or her LAR about the ISP;
(40)
provide the following counseling and therapy services
in compliance with the definition in the approved waiver request as determined
by individual needs:
(A)
speech/language pathology services;
(B)
occupational therapy services;
(C)
physical therapy services;
(D)
dietary services;
(E)
social work services; and
(F)
psychology services;
(41)
provide supported living services in compliance
with the definition in the approved waiver request including:
(A)
direct assistance with daily living and personal adjustment;
(B)
attendant care;
(C)
assistance with medications that are normally self-administered;
(D)
reporting changes in the individual's condition and needs;
(E)
reinforcement of counseling and therapy activities;
(F)
assistance with ambulation and exercise;
(G)
household services essential to health care at home; and
(H)
assistance with activities of daily living (grooming, bathing,
and dressing) and;
(42)
provide habilitation training services in compliance
with the definition in the approved waiver request including instruction and
support in:
(A)
self-care and personal hygiene;
(B)
self-administration of medication;
(C)
household tasks;
(D)
money management;
(E)
interpersonal communication;
(F)
socialization and development of relationships;
(G)
community integration;
(H)
mobility;
(I)
use of adaptive equipment or augmentative communication
devices;
(J)
self-advocacy;
(K)
accessing leisure time and recreational activities and
other community resources;
(L)
behavior management;
(M)
consumer management of service providers; and
(N)
assistance with personal problem-solving and decision-making;
(43)
provide pre-vocational services when these services
are not available to the individual through a state rehabilitation agency
or public school and in compliance with the definition in the approved waiver
request including:
(A)
individualized assessment;
(B)
individualized and group counseling;
(C)
training in related skills essential to obtaining and retaining
employment, such as the effective use of community resources and break or
lunch areas, transportation, and mobility training;
(D)
training in the use of adaptive equipment or augmentative
communication devices;
(E)
transportation between the individual's place of residence
and workplace when other forms of transportation are unavailable or inaccessible;
(44)
provide supported employment (employment in
an integrated work setting -- generally a setting where no more than one employee
or 3% of the work force members have disabilities) as determined by individual
needs and ensure that supported employment is provided away from the individual's
residence, is delivered in compliance with the definition in the approved
waiver request and includes:
(A)
on-going individualized support services needed to sustain
paid work by the individual, including supervision and training;
(B)
compensation by the employer to the individual in accordance
with the Fair Labor Standards Act;
(C)
individualized assessment;
(D)
individualized and group counseling;
(E)
individualized job placement services that produce an appropriate
job match for the individual's employer;
(F)
on-the-job training in work and work-related skills required
to perform the job;
(G)
on-going supervision and monitoring of the individual's
job performance;
(H)
transportation between the individual's place of residence
and workplace when other forms of transportation are unavailable or inaccessible;
(45)
ensure that supported employment services are
provided only when these services are not available to an individual through
the state education agency or a state rehabilitation agency and that documentation
of the unavailability of the service is maintained in the individual's record;
(46)
provide minor home modifications when determined
necessary by the IDT for the health and safety of the individual and in compliance
with definition in the approved waiver request, including:
(A)
purchase and repair of wheelchair ramps;
(B)
modifications to bathroom facilities;
(C)
modifications to kitchen facilities; and
(D)
specialized accessibility and safety adaptations/additions,
including repair and maintenance;
(47)
provide nursing services as determined by individual
needs and in compliance with the definition in the approved waiver request
and ensure that nursing services consist of performing health care procedures
and monitoring the individual's health conditions, including:
(A)
administering medication;
(B)
monitoring the individual's use of medications;
(C)
monitoring health data and information;
(D)
assisting the individual to secure emergency medical services;
(E)
making referrals for appropriate medical services;
(F)
performing health care procedures ordered or prescribed
by a physician or medical practitioner and required by standards of professional
practice or law to be performed by licensed nursing personnel; and
(G)
delegating and monitoring of tasks assigned to other service
providers by a registered nurse in accordance with state law;
(48)
ensure that respite is provided on a 24 hour
increment or any part of that increment as determined by individual needs
and is provided in compliance with the approved waiver request including:
(A)
training in self-help and independent living skills;
(B)
provision of room and board when respite is provided in
a setting other than the individual's normal residence;
(C)
support for individuals who are in need of emergency or
planned short-term care;
(D)
assistance with on-going provision of needed waiver services,
excluding supported home living; and,
(E)
assistance with securing and providing transportation;
(49)
provide respite in the residence of an individual
or in other locations that meet HCS-O programmatic requirements and afford
an environment that ensures the health, safety, comfort, and welfare of the
individual;
(A)
If respite is provided in the residence of another individual,
the program provider must obtain permission from that individual or the individual's
LAR and ensure that the interdisciplinary team for each individual makes a
determination that the respite visit will cause no threat to the health, safety
and welfare, or rights and needs of that individual;
(B)
If respite is provided in the residence of another individual,
the provider must ensure that:
(i)
no more than three individuals receiving HCS-O program
services and persons receiving similar services for which the provider is
reimbursed are served in a foster/companion care arrangement;
(ii)
no more than three individuals receiving program services
or other persons receiving similar services for which the provider is reimbursed
are served in a residence;
(iii)
no more than four individuals receiving HCS-O program
services or other persons receiving similar services for which the provider
is reimbursed are served in a residence if the department has approved the
residence in accordance with §419.678 of this title (relating to Department
Approval of Residences);
(C)
If respite is provided in a respite facility, the provider
must:
(i)
ensure that the facility is not a residence,
(ii)
ensure that no more than six individuals receive services
in the facility at any one time and,
(iii)
obtain written approval from the local fire authority
having jurisdiction stating that the facility and its operation meet the local
fire ordinances before initiating services in the facility when more than
three individuals receive services in the facility at any one time;
(D)
The provider must not provide respite services in an institution.
§419.671.Certification Principles: Interdisciplinary Team Operations.
(a)
The program provider must maintain a system of service
planning and service delivery that is continuously responsive to changes in
the individual's condition,, abilities, needs, and personal goals as identified
by the individual or the individual's LAR on behalf of the individual.
(b)
The program provider must ensure that, at minimum, the
individual's IDT consists of the individual and his or her LAR or family member,
the HCS-O case manager, and a nurse; and, when necessary to the service planning
process, the team includes other persons who may be assigned to provide or
who are currently providing direct services to the individual, a physician
and other professional personnel, and other persons chosen by the individual
or LAR.
(c)
The program provider must ensure that IDT members necessary
to address the needs of the individual attend or have verifiable input into
any meetings regarding the individual's ISP or IPC.
(d)
The program provider must maintain current information
about the individual that includes a description of the individual's service
needs and justification for the service components included in the individual's
IPC.
(e)
The program provider must maintain current service information
that clearly communicates appropriate changes as they occur pertaining to
the development and delivery of the individual's IPC and ISP.
(f)
The individual's IDT must use objective, observable, or
measurable criteria to define the need for services included in the individual's
IPC.
(g)
The program provider shall promote the development and
maintenance of effective communication among its personnel, service providers,
and the individual's IDT.
(h)
The program provider must assess the legal status of an
individual at least annually and take actions as necessary based on the assessment
to support the individual in accessing appropriate resources for assistance.
(i)
The IDT must review at least annually the individual's
physical condition, health status and other assessments and take actions based
on the results of each review.
§419.672.Certification Principles: Discharge from Services.
(a)
Within ten calendar days of a proposed permanent discharge
of an individual, the program provider must submit the following to TDMHMR
for approval:
(1)
Request for Permanent Discharge Form, copies of which are
available by contacting the Texas Department of Mental Health and Mental Retardation,
Office of Medicaid Administration, P.O. Box 12668, Austin, Texas, 78711-2668;
(2)
written justification for the discharge; and
(3)
a written discharge plan documenting, as appropriate:
(A)
that the individual or his or her LAR was informed of the
individual's option to transfer to another program provider and the consequence
of permanent discharge for receiving future HCS-O program services; and
(B)
the service linkages that are in place following the individual's
discharge from the HCS-O program.
(b)
The program provider must review the status of an individual
who is temporarily discharged at least every 90 calendar days following the
effective date of the temporary discharge and document in the individual's
record the reasons for continuing the discharge. If the temporary discharge
continues 270 calendar days, the program provider must submit written documentation
of the 90, 180, and 270 calendar-day reviews to the department for review
and approval to continue the temporary discharge status.
(c)
At least annually, the program provider shall review the
reasons for any discharges to identify any implications for improvement of
the program provider's service delivery.
§419.673.Certification Principles: Personnel Operations.
(a)
The program provider must ensure the continuous availability
of trained and qualified employees and/or contractual service providers to
deliver the required services as determined by the individual's needs.
(b)
The program provider must comply with each applicable regulation
required by the State of Texas in ensuring that its operations and personnel
or subcontractors meet state certification, licensure or regulation for any
tasks performed or services delivered in part or in entirety for the HCS-O
program.
(c)
The program provider must implement and maintain a plan
for initial and continuous training of personnel with periodic updates as
required or indicated by the needs of the individuals.
(d)
The program provider must implement and maintain personnel
practices that safeguard individuals against infectious and/or communicable
diseases.
(e)
The program provider's operations must prevent:
(1)
conflicts of interest between program provider personnel
and individuals;
(2)
financial impropriety toward individuals;
(3)
abuse, neglect, or exploitation of an individual;
or
(4)
threats of harm or danger toward an individual's possessions.
(f)
No later than September 1, 2000, the program provider must
employ or contract with a person who has a minimum of three years work experience
in planning and providing direct services to people with mental retardation
or other developmental disabilities as verified by written professional references
to oversee the provision of direct services to individuals.
(g)
In evaluating the qualifications of personnel for positions
requiring the equivalent of a high school education, the program provider
shall assure that the personnel or service provider involved is at least age
18 and either possesses a General Equivalency Degree (GED) or successfully
completes a proficiency evaluation of experience and competence to perform
the job tasks. The evaluation of experience and competency shall include:
(1)
a written competency-based assessment of the applicant's
ability to document service delivery and observations of the individuals to
be served; and,
(2)
at least three personal references from persons not
related by blood which indicate the applicant's ability to provide a safe,
healthy environment for the individuals being served.
(h)
The program provider must ensure that the HCS-O case manager
is currently qualified by having a:
(1)
bachelor's degree with major specialization in social,
behavioral or human services or related fields;
(2)
high school diploma or GED with related volunteer
experience comparable to two years full-time work in a social, behavioral,
or human services or related fields;
(3)
high school diploma or GED with a minimum of two years
full-time work experience in social, behavioral, human services or related
work; or
(4)
license by the State of Texas as an LVN or RN with
one year of experience in human services.
(i)
The program provider shall ensure that each provider of
counseling and therapies is currently qualified by being licensed and/or certified
by the State of Texas in the specific area for which services are delivered
or be providing services in accordance with state law. Psychologists employed
by State Operated Community Service Divisions and Community MHMR Centers are
required to be licensed in accordance with State law or certified as described
in Chapter 405 Subchapter D (relating to Determination of Mental Retardation
and Appropriateness for Admission to Mental Retardation Services).
(j)
The program provider shall ensure that the provider of
habilitation or respite is currently qualified by having a high school diploma
or its equivalent as described in subsection (g) of this section, that transportation
is provided in accordance with applicable state laws, and that tasks delegated
by a Registered Nurse are performed in accordance with state law.
(k)
The program provider must ensure that nursing services
are provided by a nurse who is currently qualified by:
(1)
being licensed as a registered nurse in Texas by the Board
of Nurse Examiners for the State of Texas; or
(2)
being licensed as a licensed vocational nurse in Texas
by the Board of Vocational Nurse Examiners for the State of Texas.
(l)
The program provider shall comply with Texas Health and
Safety Code, Chapter 250, Nurse Aide Registry and Criminal History Checks
of Employees and Applicants for Employment in Certain Facilities Serving the
Elderly or Persons with Disabilities.
§419.674.Certification Principles: Quality Assurance.
(a)
The program provider must pursue and promote the active
and maximum cooperation with generic service agencies, other service providers,
individuals and advocates in planning and developing a full range of services
and resources to match the needs of the individual as those needs are identified.
(b)
The program provider must ensure a personalized service
delivery program based upon the choices made by each individual, or the LAR
on behalf of the individual, and those choices that are available to persons
without mental retardation and other disabilities.
(c)
The program provider shall:
(1)
conduct an initial on-site inspection prior to initiating
services in a residence and, thereafter, at least an annual on-site inspection
of all residences of individuals living outside their own or family home to
assure that, based on the individual's needs, the environment is healthy,
comfortable, safe, appropriate and typical of other residences in the community,
suited for the individual's abilities, and is in compliance with applicable
federal, state, and local regulations for the community in which the individual
lives; and
(2)
ensure that the individual's IDT reviews the results
of the on-site inspection prior to the individual residing in the residence
and each inspection conducted at least annually thereafter and takes action
as required to assure that the residence is appropriate and meets the needs
of the individual.
(d)
The program provider must ensure that:
(1)
emergency plans are maintained for each residence other
than an individual's own or family home;
(2)
the emergency plans address relevant emergencies appropriate
for the type of service, geographic location and the individuals living in
the residence; and
(3)
the individuals and service provider staff follow
the plans during drills and actual emergencies.
(e)
The program provider must assure that an individual living
outside his or her family home and receiving supported living lives in a residence
in which no more than two other individuals or other persons receiving similar
services live unless the department has approved a residence in which four
individuals will live in accordance with §419.678 of this title (relating
to Department Approval of Residences). The program provider must assure that
a residence in which four individuals live:
(1)
is in continuous compliance with applicable provisions
concerning Residential Board and Care Occupancies -- Small Facilities of the
edition of the NFPA 101 Life Safety Code, published by the National Fire Protection
Association and adopted by the Texas State Fire Marshal's Office, as certified
by the fire safety authority having jurisdiction for the location of the residence
(e.g., the local fire marshal, building official) at the time the residence
is approved by the department and at least annually thereafter;
(2)
is approved by the department in accordance with §419.678
of this title (relating to Department Approval of Residences); and
(3)
is in continuous compliance with all applicable health
and safety laws, ordinances, and regulations.
(f)
The program provider shall establish an on-going consumer/advocate
advisory committee composed of individuals, individuals' LARs, community representatives,
and family members that will meet at least quarterly. The committee will assist
the program provider to perform the following activities at least annually:
(1)
evaluating and addressing the satisfaction of individuals
or individuals' LARs with the program provider's services;
(2)
soliciting, addressing, and reviewing complaints from
individuals or their LARs about the operations of the program provider; and
(3)
participating in a continuous quality improvement
audit of the program provider's operations and offering recommendations for
improvement of program operations for action by the program provider as necessary.
(g)
The program provider shall make available all records,
reports and other information related to the delivery of HCS-O program services
information as requested by the department, other authorized agencies, or
HFCA and deliver such items, as requested, to a specified location.
(h)
The program provider shall conduct, at least annually,
a satisfaction survey of individuals and their LARs and take action regarding
any areas of dissatisfaction.
(i)
The program provider shall publicize and make available
a process for eliciting complaints and maintain a record of verifiable resolutions
of complaints received from:
(1)
individuals, their families or LARs
(2)
program provider's personnel or service providers;
and
(3)
the general public.
(j)
The program provider must ensure that:
(1)
the individual and the LAR are informed of how to report
allegations of abuse, neglect, or exploitation to the Texas Department of
Protective and Regulatory Services (TDPRS) and are provided with the TDPRS
toll-free telephone number (1-800-647-7418) in writing; and
(2)
all service provider personnel are instructed to immediately
report suspected abuse, neglect, or exploitation to TDPRS and are provided
with the TDPRS toll-free telephone number (1-800-647-7418) in writing; and
(3)
all service provider personnel report suspected abuse,
neglect, or exploitation as instructed.
(k)
If the program provider suspects or is notified of an allegation
of abuse, neglect or exploitation, the program provider shall take necessary
actions to secure the safety of the alleged victim(s) involved in the allegation,
including but not limited to:
(1)
obtaining immediate and on-going medical or psychological
services for the alleged victim as necessary;
(2)
securing the safety of the alleged victim and, if
necessary, restricting access by the alleged perpetrator of the abuse, neglect
or exploitation to the alleged victim pending investigation of the allegation;
and
(3)
notifying the alleged victim and the individual's
LAR.
(l)
The program provider personnel shall cooperate with the
TDPRS investigation of an allegation of abuse, neglect, or exploitation, including
but not limited to:
(1)
providing complete access to all HCS-O program service
sites owned, operated, or controlled by the program provider; and
(2)
providing complete access to individuals and program
provider personnel.
(m)
In all respite facilities and all residences in which HCS-O
program services are provided and the supported living service provider or
the program provider hold a property interest, program providers must post
in a conspicuous location:
(1)
the name, address and telephone number of the program provider;
(2)
the effective date of the TDMHMR Waiver Program Provider
Agreement; and
(3)
the name of the legal entity named on the Waiver Program
Provider Agreement.
(n)
The program provider must:
(1)
report the program provider's response to the finding of
all TDPRS investigations of abuse, neglect, or exploitation to the department
in accordance with department procedures within 10 calendar days of the program
provider's receipt of the investigation findings; and
(2)
notify the individual and the individual's LAR that
the TDPRS investigation has been completed and that the individual or LAR
may contact TDPRS regarding the results of the investigation and the process
for appealing the findings within 10 calendar days of the program provider's
receipt of the investigation findings.
(o)
If abuse, neglect, or exploitation is confirmed by the
TDPRS investigation, the program provider shall take appropriate action to
prevent the reoccurrence of abuse, neglect or exploitation including, when
warranted, disciplinary action against or termination of the employment of
program provider personnel confirmed by the TDPRS investigation to have committed
abuse, neglect, and exploitation.
(p)
At least annually, the program provider must review incidents
of confirmed abuse, neglect, or exploitation, complaints, and unusual incidents
to identify program operations modifications that will prevent the reoccurrence
of such incidents and improve service delivery.
(q)
The program provider shall ensure that all personal information
concerning an individual, such as lists of names, addresses and records obtained
by the program provider is kept confidential, that the use or disclosure of
such information and records is limited to purposes directly connected with
the administration of the HCS-O program, and is otherwise neither directly
nor indirectly used or disclosed unless the consent of the individual to whom
the information applies or his or her LAR is obtained beforehand.
(r)
The program provider shall apply a consistent method in
assessing charges against the individual's personal funds that ensures that
charges for items or services, including but not limited to room and board,
are reasonable and comparable to the costs of similar items and services generally
available in the community.
(s)
The program provider shall assure the individual or his
or her LAR has agreed in writing to all charges assessed by the program provider
against the individual's personal funds prior the charges being assessed.
(t)
The program provider shall not assess charges against the
individual's personal funds for costs for items or services reimbursed through
the HCS-O program.
(u)
At the written request of an individual or his or her LAR,
the program provider:
(1)
must manage the individual's personal funds entrusted to
the program provider;
(2)
must not commingle the individual's personal funds
with the program provider's funds; and
(3)
must maintain a separate, detailed record of all deposits
and expenditures for the individual.
(v)
When behavior management techniques involving restriction
of individual rights or intrusive techniques are used, the program provider
shall ensure that the implementation of such techniques includes:
(1)
approval by the individual's IDT;
(2)
written consent of the individual or LAR;
(3)
written notification to the individual or LAR of the
right to discontinue participation at any time;
(4)
assessment of the individual's needs and current level/severity
of the targeted behavior(s);
(5)
use of techniques appropriate to the level/severity
of the targeted behavior(s);
(6)
a written program developed by a psychologist with
input from the individual, LAR, the individual's IDT, and other professional
personnel;
(7)
collection and monitoring of behavioral data concerning
the targeted behavior(s);
(8)
allowance for the decrease in the use of intervention
based on behavioral data;
(9)
allowance for revision of the program when desired
behavior(s) are not displayed or techniques are not effective;
(10)
consideration of the effects of the techniques in
relation to the individual's physical and psychological well-being; and
(11)
at least an annual review by the IDT to determine
the effectiveness of the program and the need to continue the techniques.
(w)
The program provider shall report the death of an individual
to the department by the end of the next business day following the death,
and, if the program provider reasonably believes that the individual's LAR
does not know of the death, to the individual's LAR as soon as possible, but
not later than 24 hours after the death.
§419.675.Corrective Action and Program Provider Sanctions.
(a)
If the department determines that the program provider
is in compliance with all certification principles at the end of the review
exit conference, the department certifies the program provider and no action
by the program provider is required.
(b)
If the department determines that the program provider
is out of compliance with ten percent or fewer of the certification principles
at the end of the review exit conference, but the program provider is in compliance
with all principles found out of compliance in the previous review, the program
provider must submit a corrective action plan to the department within 14
calendar days after the program provider receives the department's certification
report.
(1)
The corrective action plan must specify a date by which
corrective action will be completed, and such date must be no later than 90
calendar days after the certification review exit conference.
(2)
If the program provider submits a corrective action
plan in accordance with this subsection and the plan is approved by the department,
the department certifies the program provider. The department evaluates the
program provider's required corrective action during the department's first
review of the program provider after the corrective action completion date.
(3)
If the program provider does not submit a corrective
action plan in accordance with this subsection or the plan is not approved
by the department, the department initiates termination of the program provider's
Waiver Program Provider Agreement, implements vendor hold against the program
provider, and, in conjunction with the local MRA, coordinates the provision
of alternate services for the individuals receiving HCS-O program services
from the program provider.
(c)
If the department determines that the program provider
is out of compliance with ten percent or fewer of the certification principles
at the end of the review exit conference, including any principles found out
of compliance in the previous review, the department:
(1)
certifies the program provider, if the program provider:
(A)
presents evidence before the end of the current certification
period that it is in compliance with all principles found out of compliance
in the previous review; and
(B)
submits a corrective action plan in accordance with subsection
(b) of this section addressing any new principles found out of compliance;
or
(2)
does not certify the program provider and initiates
termination of the program provider's Waiver Program Provider Agreement, if
the provider does not:
(A)
present evidence before the end of the current certification
period that it is in compliance with all principles found out of compliance
in the previous review; and
(B)
submit a corrective action plan in accordance with subsection
(b) of this section addressing any new principles found out of compliance.
(d)
If the department determines that the program provider
is out of compliance with between ten and twenty percent of the certification
principles at the end of the review exit conference, including any principles
found out of compliance in the previous review, the department does not certify
the program provider and applies Level I sanctions against the program provider.
(1)
Under Level I sanctions, the program provider must complete
corrective action within 30 calendar days after the review exit conference;
and the department conducts an on-site follow-up review within 30 to 45 calendar
days after the review exit conference.
(2)
Based on the results of the follow-up review, the
department:
(A)
certifies the program provider, if the department determines
that the program provider is in compliance, by the end of the follow-up review
exit conference, with the principles found out of compliance; or
(B)
denies certification of and implements vendor hold against
the program provider if the department determines that the program provider
is not in compliance, by the end of the follow-up review exit conference,
with the principles found out of compliance.
(3)
If the department implements vendor hold against
the provider, the department conducts a second on-site follow-up review between
30 and 45 calendar days from the effective date of the vendor hold. Based
on the results of the review, the department:
(A)
certifies the program provider and removes the vendor hold
if the department determines that the program provider is in compliance, by
the end of the follow-up review exit conference, with the principles found
out of compliance; or
(B)
denies certification of the program provider and initiates
termination of the program provider's Waiver Program Provider Agreement if
the department determines that the program provider is not in compliance,
by the end of the follow-up review exit conference, with the principles found
out of compliance.
(e)
If the department determines that the program provider
is out of compliance, at the end of the review exit conference, with twenty
or more percent of the certification principles, including any principles
found out of compliance in the previous review, the department does not certify
the program provider, implements vendor hold, and applies Level II sanctions
against the program provider.
(1)
Under Level II sanctions:
(A)
the program provider must complete corrective action within
30 calendar days after the review exit conference; and
(B)
the department conducts an on-site follow-up review within
30 to 45 calendar days after the required correction date.
(2)
Based on the results of the follow-up review,
the department:
(A)
certifies the program provider and removes the vendor hold,
if the department determines that the program provider is in compliance, by
the end of the follow-up review exit conference, with all principles found
out of compliance; or
(B)
denies certification of the program provider and initiates
termination of the program provider's Waiver Program Provider Agreement if
the department determines that the program provider is not in compliance,
by the end of the follow-up review exit conference, with all principles found
out of compliance.
(f)
Notwithstanding subsections (b)-(e) of this section, if
the department determines that a hazard to the health, safety, or welfare
of one or more individuals exists and the hazard is not eliminated before
the end of the review exit conference, the department denies certification
of the program provider, initiates termination of the program provider's Waiver
Program Provider Agreement, implements vendor hold against the program provider,
and, in conjunction with the local MRA, coordinates the provision of alternate
services for individuals receiving HCS-O program services from the program
provider. A hazard to health, safety or welfare is any condition which could
result in life-threatening harm, serious injury, or death of an individual
or other person within 48 hours. If hazards are identified by the department
during a review and the program provider corrects the hazards before the end
of the review exit conference, the correction will be designated in the department's
report of the review.
(g)
Notwithstanding subsections (b)-(e) of this section, if
the department determines that a program provider's failure to comply with
one or more of the certification principles is of a serious or pervasive nature,
the department may, at its discretion, take any action described in this section
against the program provider. Serious or pervasive failure to comply includes
but is not limited to conditions that have potentially dangerous consequences
for individuals served by the program provider or conditions that affect a
large percentage of individuals served by the program provider.
§419.678.Department Approval of Residences.
(a)
The program provider must request and obtain the department's
approval of a residence in which four individuals or other persons receiving
similar services will live.
(b)
To receive approval of a residence described in subsection
(a) of this section, the program provider must submit the following documentation
to the department for the department's review:
(1)
the address of the residence at which the provider intends
to provide supported living;
(2)
written certification by the fire safety authority
having jurisdiction for the location for the residence (e.g., local fire marshal
or building official) that, based upon inspection of the residence, the residence
complies with the provisions of §419.674(e) of this title (relating to
Certification Principles: Quality Assurance);
(3)
written certification from the program provider that
the residence to be approved is not the residence of any direct service provider.
(c)
Pending the department's receipt of documentation of the
certification inspection required by subsection (b)(2) of this section, the
department may grant temporary approval of a residence described in subsection
(a) of this section if the program provider submits the documentation required
by subsection (b)(1) and (3) and the following dated documentation to the
department:
(1)
a copy of the Contractor's Material and Test Certificate
for Above Ground Piping (Form 85A) and the Contractor's Material and Test
Certification for Underground Piping (Form 85B) as issued by the Texas State
Fire Marshal's Office certifying the automatic fire sprinkler system complies
with minimum installation requirements signed by an installer licensed by
the State of Texas or documentation evidencing a "prompt" evacuation capability,
as defined in the NFPA 101 Life Safety Code;
(2)
a copy of the Fire Alarm Installation Certificate
(Form FML009) certifying the fire alarm system complies with minimum installation
requirements and applicable provisions of the NFPA 101 Life Safety Code signed
by an installer licensed by the State of Texas;
(3)
a copy of the written correspondence from the fire
safety authority having jurisdiction for the location of the residence that
an inspection of the residence by that authority will be conducted within
30 calendar days of the effective date of the department's approval of the
residence as established in accordance with subsection (e) of this section;
and
(4)
written certification from the program provider that
all other NFPA 101 Life Safety Code requirements applicable to the residence
have been met.
(d)
Temporary approval granted in accordance with subsection
(d) of this section:
(1)
is effective as of the date of the latest date of the documentation
specified in subsection (d)(1)-(4) of this section; and
(2)
expires 45 calendar days from the effective date of
the temporary approval or on the date the department approves the residence
based on the program provider's submission of the written certification required
in subsection (b)(3) of this section, whichever is earlier.
(e)
The department notifies the program provider of its approval
or disapproval of the residence within 10 working days of its receipt of the
documentation specified in subsection (b) or (c) of this section.
(f)
Services in a residence described in subsection (a) of
this section may not be initiated until the program provider has met the provisions
of subsections (c) or (d) of this section.
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 February 7, 2000.
TRD-200000945
Charles Cooper
Chair, Texas MHMR Board
Texas Department of Mental Health and Mental Retardation
Effective date: March 1, 2000
Proposal publication date: October 1, 1999
For further information, please call: (512) 206-5232
Chapter 701.
POLICIES AND PROCEDURES
25 TAC §§701.3-701.7
The Texas Cancer Council adopts the repeal of §§701.3-701.7
concerning officers, committees, executive director, meetings, and actions
requiring council approval. The repeals are adopted without changes to the
proposal published in the December 10, 1999, issue of the
Texas Register
(24 TexReg 11087)
The Council finds these rules concern the internal management and policy-making
functions of the Council and the agency, and are not the proper subject of
rules.
No comment were received regarding the proposed repeals.
The repeals are adopted under the Texas Health & Safety Code
Annotated §102.002 and §102.009 which provide the Texas Cancer Council
with the authority to develop and implement the
Texas Cancer Plan
, and the Texas Government Code Annotated, §2001.004
(Vernon 1998 Pamphlet).
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 February 8, 2000.
TRD-200000969
Mickey L. Jacobs, M.S.H.P.
Executive Director
Texas Cancer Council
Effective date: February 28, 2000
Proposal publication date: December 10, 1999
For further information, please call: (512) 463-3190
25 TAC §701.8
The Texas Cancer Council adopts the amendment to §701.8
concerning the copies of public records without changes to the proposed text
as published in the December 10, 1999 issue of the
Texas Register
(24 TexReg 11087).
The amendment was proposed so that as the General Services Commission amends
rules, the Texas Cancer Council need not also amend this rule.
No comments were received regarding the proposed amendment.
The amendment is adopted under the authority of the Texas Health &
Safety Code Annotated, §102.002 and §102.009 which provide the Texas
Cancer Council with the authority to develop and implement the
Texas Cancer Plan
, and the Texas Government Code Annotated, §552.262
which requires state governmental bodies to use the rules adopted by the General
Services Commission in determining charges for providing copies of public
information.
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 February 8, 2000.
TRD-200000970
Mickey L. Jacobs, M.S.H.P.
Executive Director
Texas Cancer Council
Effective date: February 28, 2000
Proposal publication date: December 10, 1999
For further information, please call: (512) 463-3190
25 TAC §702.2
The Texas Cancer Council adopts the amendment to §702.2
concerning donations without changes to the proposed text as published in
the December 10, 1999 issue of the
Texas Register
(24 TexReg 11087).
The amendment was proposed to use a more accurate legal standard to determine
whether granting something of value to a private entity is constitutional
under Article III, §51 of the Texas Constitution.
No comments were received regarding the proposed amendment.
The amendment is adopted under the Texas Health & Safety
Code Annotated, §102.002 and §102.009 which provide the Texas Cancer
Council with the authority to develop and implement the
Texas Cancer Plan
, and the Texas Government Code Annotated, §2255.001
(Vernon 1998 Pamphlet) which directs state agencies to adopt rules governing
the relationship between the donor organization and the agency and its employees.
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 February 8, 2000.
TRD-200000971
Mickey L. Jacobs, M.S.H.P.
Executive Director
Texas Cancer Council
Effective date: February 28, 2000
Proposal publication date: December 10, 1999
For further information, please call: (512) 463-3190
Subchapter E. HOME AND COMMUNITY-BASED WAIVER SERVICES - OBRA (HCS-O)
Subchapter L. MENTAL RETARDATION LOCAL AUTHORITY (MRLA) PILOT PROGRAM
Chapter 419.
MEDICAID STATE OPERATING AGENCY RESPONSIBILITIES
Subchapter P. HOME AND COMMUNITY-BASED SERVICES - OBRA (HCS-O) PROGRAM
Part 11.
TEXAS CANCER COUNCIL
Chapter 702.
RELATIONSHIP BETWEEN COUNCIL AND PRIVATE ORGANIZATIONS AND DONORS
Chapter 703.
PROJECT CONTRACTS AND GRANTS