Part 1.
TEXAS DEPARTMENT OF HUMAN SERVICES
Chapter 49.
CONTRACTING FOR COMMUNITY CARE SERVICES
40 TAC §49.17, §49.25
The Texas Department of Human Services (DHS) proposes amendments
to §49.17, concerning fiscal monitoring; and §49.25, concerning
contract/program monitoring, in its Contracting for Community Care Services
chapter. The purpose of the amendments is to delete current rules that specify
sample methodology for formal program and fiscal monitoring reviews of community
care providers, that provide for a courtesy review, and that require mandatory
contract termination subsequent to two consecutive failed reviews.
Eric M. Bost, commissioner, has determined that for the first five- year
period the sections are in effect there will be no fiscal implications for
state or local government as a result of enforcing or administering the sections.
Mr. Bost also has determined that for each year of the first five years
the sections are in effect the public benefit anticipated as a result of enforcing
the sections will be that DHS will ensure the quality of services delivered
to clients through more effective methods for program monitoring and fiscal
reviews of community care providers, quicker enforcement of contract compliance,
and sanctioning that is more appropriately linked to non-compliance. There
will be no effect on large, small, or micro businesses, because the proposal
amends departmental procedures. They do not establish any additional requirements
for providers and, therefore, do not have any adverse effect on providers,
large or small. There is no anticipated economic cost to persons who are required
to comply with the proposed sections.
Questions about the content of this proposal may be directed to Susan Syler
at (512) 438-3111 in DHS's Long Term Care Policy Section. Written comments
on the proposal may be submitted to Supervisor, Rules and Handbooks Unit-238,
Texas Department of Human Services E-205, P.O. Box 149030, Austin, Texas 78714-9030,
within 30 days of publication in the
Texas Register
.
Under §2007.003(b) of the Texas Government Code, the department has
determined that Chapter 2007 of the Government Code does not apply to these
rules. Accordingly, the department is not required to complete a takings impact
assessment regarding these rules.
The amendments are proposed under the Human Resources Code, Title
2, Chapters 22 and 32, which authorizes the department to administer public
and medical assistance programs; and under Texas Government Code §531.021,
which provides the Health and Human Services Commission with the authority
to administer federal medical assistance funds.
The amendments implement the Human Resources Code, §§22.001-
22.030 and §§32.001-32.042.
§49.17.Fiscal Monitoring.
Texas Department of Human Services staff responsible for assuring provider
agency compliance with contract/program requirements conduct periodic fiscal
monitoring reviews.
(1)
The review will be based on
consistent and reliable sampling techniques.
[
A random sample of clients
will be chosen that has a confidence level of 85% plus or minus 5.0% and for
purposes of sample size determination, is assumed to have a compliance rate
of 95%.
(2)-(4)
(No change.)
§49.25.Contract/Program Monitoring.
(a)
(No change.)
(b)
Each provider agency is subject to a systematic review
of client case records to determine if the provider agency's performance meets
the minimum compliance level. [
(c)-(e)
(No change.)
[
Each provider agency that
enters into a contract after adoption of this section is entitled to receive
or decline one courtesy review before a formal review is conducted. The review
is nonbinding and is intended to identify possible problem areas when formal
agency reviews are conducted.]
(f)
[
(1)
consists of at least one, but no more than, three consecutive
months; and
(2)
ends one full month before the month in which case
readings occur.
(g)
[
(1)
the date(s) and time that DHS staff plan to arrive at the
agreed- upon review site(s);
(2)
the number of DHS staff to conduct the review; and
(3)
the approximate number of days necessary to complete
the review.
(h)
[
[
DHS determines a full sample
by drawing a random sample, which includes an approximately proportionate
number of new and ongoing cases and which has a confidence level of 85% plus
or minus 5.0% and for purposes of sample size determination, is assumed to
have a com- pliance rate of 90%.]
[
DHS selects a subsample
by choosing one of the following and as described in the service being reviewed:]
[
the larger of 15 cases, or 5.0% of the provider
agency's caseload, neither of which can exceed the full sample size; or]
[
the larger of 10 cases, or 5.0% of the provider
agency's caseload, neither of which can exceed the full sample size.]
[
If DHS's findings from the
subsample do not meet the 90% minimum compliance level, DHS reads the full
sample, which includes cases identified in the subsample. If the subsample
compliance is 90% or greater, DHS may choose to read the full sample.]
(i)
The review will be based on
consistent and reliable sampling techniques.
(j)
[
(1)
identifies missing documents. A missing document is defined
as a document that existed in either the DHS or provider agency files prior
to the date of a DHS review. Within three workdays after DHS staff leave the
review site, the missing documents must be received in the office of the reviewer,
or the provider agency may submit a written request for some or all the missing
documents to be copied from DHS files. The request must be addressed to the
appropriate DHS staff with a copy to the reviewer. DHS-provided documents
are used to adjust the agency's findings even if the documents are received
after the three-day period. The provider agency is entitled to receive its
adjusted findings within 21 work days after the review team leaves the review
site; and
(2)
provides the provider agency its tentative findings
before leaving the review site. The findings remain tentative until the exit
conference. The provider agency is responsible for identifying and correcting
any deficiency identified. DHS does not evaluate or measure corrective action
plans but limits reviews to determining compliance with contract and program
requirements.
(k)
[
(l)
[
(m)
[
(1)
written findings and problem areas identified; and
(2)
if the provider agency failed to meet the acceptable
performance level, notice that a second formal agency review will be conducted.
(n)
[
(1)
written findings and problem areas identified; or
(2)
an intent to terminate letter[
(A)
the effective date of the contract termination;
(B)
that the provider agency does not receive additional referrals
beginning the date of the exit conference;
(C)
that DHS will initiate client transfers to other providers
if an appeal is not filed;
(D)
that the provider agency may not recontract to provide
services in the region covered by the terminated contract for six months after
the termination date;
(E)
the appeal procedures; and
(F)
that DHS will place a vendor hold on the contract effective:
(i)
15 days from receipt of the intent to terminate letter
if an appeal is not filed; or
(ii)
the date the appeal decision is made if an appeal is filed
and DHS upholds the decision to terminate the contract.
(o)
[
(p)
[
(q)
[
(1)
delete all counties from the contract where there is another
provider of the same service; or
(2)
extend the termination date for another six months
or until placement is found for every client served through the contract.
(r)
[
(1)
does not add counties to the contract;
(2)
may delete additional counties if another provider
agency begins to provide services in the county(ies) to be deleted; or
(3)
may terminate the provider agency's contract before
the extension period expires.
(s)
[
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State, on June 22, 2000.
TRD-200004386
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: August 6, 2000
For further information, please call: (512) 438-3108
Subchapter D. ENFORCEMENT
40 TAC §97.52
The Texas Department of Human Services (DHS) proposes an
amendment to §97.52, concerning enforcement action, in its Home and Community
Support Services Agencies chapter. The purpose of the amendment is to correct
a technical error in transmitting the final adopted version of 40 TAC §97.52.
The Severity Level 1 Violations chart was inadvertently omitted from §97.52(b)(4)(C)(iii)
when it was transmitted to the Texas Register as the adopted rule. No changes
to the chart were proposed as published in the February 18, 2000, issue (25
TexReg 0938). DHS will interpret and apply this rule as if the published adopted
version contained the chart. DHS is also filing a public notice in the "In
Addition" section of this issue.
Eric M. Bost, commissioner, has determined that for the first five-year
period the sections are in effect there will be no fiscal implications for
state or local government as a result of enforcing or administering the sections.
Mr. Bost also has determined that for each year of the first five years
the sections are in effect the public benefit anticipated as a result of enforcing
the sections will be correct HCSSA rules.
Questions about the content of this proposal may be directed to Linda Kotek
at (512) 438-3158 in DHS's Long Term Care Section. Written comments on the
proposal may be submitted to Supervisor, Rules and Handbooks Unit-100, Texas
Department of Human Services E-205, P.O. Box 149030, Austin, Texas 78714-9030,
within 30 days of publication in the Texas Register.
Under §2007.003(b) of the Texas Government Code, the department has
determined that Chapter 2007 of the Government Code does not apply to these
rules. Accordingly, the department is not required to complete a takings impact
assessment regarding these rules.
The amendment is proposed under the Health and Safety Code, Chapter
142, which provides the department with the authority to adopt rules for the
licensing and regulation of home and community support services agencies.
The amendment implements the Health and Safety Code, Chapter 142.001-142.030.
§97.52.Enforcement Action.
(a)
(No change.)
(b)
Administrative penalties.
(1)-(3)
(No change.)
(4)
Schedule of penalties.
(A)-(B)
(No change.)
(C)
Severity level I. A severity level I violation is a violation
that has or has had minor or no client health or safety significance.
(i)-(ii)
(No change.)
(iii)
A violation of each of the rules listed in the following
table may warrant a severity level 1 administrative penalty.
Figure: 40 TAC §97.52(b)(4)(C)(iii)
(D)
(No change.)
(5)
(No change.)
(c)-(d)
(No change.)
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State, on June 26, 2000.
TRD-200004431
Paul Leche
General Services, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: August 6, 2000
For further information, please call: (512) 438-3108
Chapter 800.
GENERAL ADMINISTRATION
Subchapter B. ALLOCATIONS AND FUNDING
(1)
]
If the provider agency fails to meet the
minimum compliance level for two consecutive formal reviews, DHS terminates
the provider agency's contract.
]
(f)
(g)
] The service quarter for all
reviews begins no earlier than two full months after the provider agency has
received its orientation/training. The period to be reviewed:
(h)
] The provider agency is entitled
to receive written notice of a provider agency review at least 14 calendar
days before the review. The notification includes:
(i)
] The provider agency is not
entitled to receive the list of cases in the sample before DHS staff arrive
for the review.
(1)
(2)
(A)
(B)
(j)
(k)
] Using the monitoring guide,
the reviewer:
(l)
] The provider agency is solely
responsible for maintaining all necessary service documentation; secondary
documentation is not acceptable.
(m)
] The provider agency is entitled
to an exit conference with DHS staff within 21 work days after the review
team leaves the review site. The provider agency may receive written suggestions
from DHS to improve its performance level during the exit conference and must
acknowledge, in writing, receipt of the agency review findings and suggestions
to correct any deficiencies.
(n)
] The provider agency receives
from DHS during the exit conference for the first formal agency review:
(o)
] The provider agency receives
from DHS during the exit conference for the second formal agency review:
, if the provider
agency fails to meet the acceptable performance level for two consecutive
reviews
]. The letter states:
(p)
] The provider agency may request
an administrative review of the methodology employed by the review team if
the provider agency has reason to suspect that the formal agency review was
not conducted according to published rules and the monitoring guide. The request
must be in writing and received by the appropriate DHS staff within 10 calendar
days of the date of the exit conference.
(q)
] If the provider agency fails
to provide services at a minimally acceptable performance level, DHS may not
renew the contract or may terminate it.
(r)
] If a provider agency is identified
by DHS for contract termination, termination occurs no sooner than 46 days
from the date of the termination letter and no later than the end of the month
in which the 46th day occurs. If DHS is unable to successfully transfer all
clients by the contract termination date due to another responsible provider
not being available, DHS may:
(s)
] For six months from the date
DHS initially deletes counties from the contract or extends the contract,
DHS:
(t)
] The provider agency may not
recontract or add counties for six months from the date of contract termination
or initial deletion of counties, unless service specific rules allow exceptions.
Chapter 97.
HOME AND COMMUNITY SUPPORT SERVICES AGENCIES
Part 20.
TEXAS WORKFORCE COMMISSION