40 TAC §§50.1, 50.2, 50.4, 50.6, 50.8, 50.10, 50.12, 50.14, 50.16, 50.18, 50.20, 50.22, 50.24, 50.26, 50.28, 50.30, 50.32, 50.34, 50.36, 50.38, 50.40, 50.42, 50.44, 50.46, 50.48
The Texas Department of Human Services (DHS) adopts new §§50.1,
50.6, 50.8, 50.10, 50.12, 50.14, 50.18, 50.20, 50.22, 50.28, 50.34, 50.36,
50.38, 50.40, 50.42, 50.44, and 50.48, without changes to the proposed text
published in the April 20, 2001, issue of the
Texas
Register
(26 TexReg 2965). These sections will not be republished.
New §§50.2, 50.4, 50.16, 50.24, 50.26, 50.30, 50.32, and 50.46 are
adopted with changes to the proposed text published in the April 20, 2001,
issue of the
Texas Register
(26 TexReg 2965).
Sections 50.2, 50.30, and 50.46 contain technical changes that clarify the
meaning of the TDMHMR waivers. Numerous meetings were held with advocates,
providers, and other stakeholders to gain input for these rules.
Justification for the new sections is to establish rules for the Consolidated
Waiver Program (CWP), a §1915(c) waiver pilot program that will provide
home and community-based services to individuals who meet the criteria for
institutional care. The pilot was authorized by Texas Government Code, §531.0219,
for the purpose of testing the feasibility of combining five of the state's §1915(c)
Medicaid waiver programs: Community Based Alternatives (CBA), Community Living
Assistance and Support Services (CLASS), Deaf Blind Multiple Disabilities
(DBMD), Medically Dependent Children Program (MDCP), and Home and Community
Based Services (HCS). The pilot will be located in Bexar County, an area where
CBA, CLASS, DBMD, HCS, and MDCP are currently operating. These rules will
not repeal or replace any existing §1915(c) waiver rules statewide or
in the pilot area for individuals not participating in the pilot.
DHS received comments regarding the establishment of the CWP. A summary
of the comments and the department's responses follow. Several of the parties
had similar concerns, so where appropriate, questions and concerns are combined
and one response is given. Comments were received during the comment period
from the Texas Association for Home Care; CALAB, Inc.; United Cerebral Palsy
of Texas; the Texas Council for Developmental Disabilities; the ARC of Texas
Rehabilitation Commission; Advocacy, Inc.; the Texas Council of Community
Mental Health and Mental Retardation (MHMR) Centers, Inc.; and the Private
Providers Association of Texas.
The following comments pertain to §50.2. Definitions.
Comment: We want to be certain that the cutoff age is consistent with the
Medically Dependent Children Program (MDCP) so that children transitioning
from that waiver to the CWP could do so without interruption of services.
The case manager and CWP provider must plan and begin services to effect a
smooth transition between waiver programs.
Response: An individual cannot transfer from MDCP to CWP. The legislation
specifically excludes individuals already receiving waiver services. Since
there is no age requirement in CWP, there is no transitioning to another waiver;
all populations are served in one program, that is part of the reason for
having the pilot.
Comment: The advance notice guidelines should mirror those of other waivers.
Do participants in the existing waivers receive more than 10 days notice prior
to any reduction or termination in services?
Response: This rule is consistent with other waivers administered by DHS.
Comment: If a person becomes an applicant when he is "next in line" to
fill a slot in a waiver program, which waiver program is being referred to?
If a person is awaiting Community Based Alternatives (CBA) services, does
the person become an applicant when he is "next in line" for the traditional
CBA program or the CWP?
Response: This definition relates to the CWP only. We will add "CWP" before
waiver in this definition for clarity.
Comment: We feel the definition for case management is not comprehensive
enough. Please consider the following as an alternative. "Assistance in accessing
medical, social, educational, and other appropriate services that will help
an individual achieve a quality of life and community participation acceptable
to the individual (and Legally Authorized Representative (LAR) on the individual's
behalf)."
Response: DHS agrees and will revise the definition using the suggested
language.
Comment: The definition of Interdisciplinary Team (IDT) is a good, well
developed definition.
Response: DHS agrees. No changes are indicated.
Comment: As an alternate definition for Individual Service Plan (ISP),
we suggest the following; "A consumer-directed plan of care developed with
the assistance of the IDT to prevent institutionalization and facilitate an
individual's ability to fully participate in the community, taking into account
the individual's preference."
Response: DHS agrees and will revise the definition using the suggested
language.
Comment: In the Definition of Legal Confinement, we are uncomfortable with
the term, "normal" in the second line and would prefer that "current" or "usual"
be used in its place.
Response: DHS agrees and will replace normal with usual.
Comment: In the definition of Legal Confinement, we believe that settings
for legal confinement should also include nursing facilities.
Response: The definition as it is written could include nursing facilities.
The examples listed are not meant to be all-inclusive, as indicated by the
phrase "include but are not limited to," therefore the change is not necessary.
Comment: In the definition of Respite, we suggest that you delete the phrase,
"during times when the participant's primary caregiver would normally provide
uncompensated care." We are concerned that this language could be unfairly
used against working parents.
Response: DHS will revise the definition deleting the referenced phrase
using the Health Care Financing Administration (HCFA) waiver preprint definition
instead.
Comment: We suggest adding the following definitions and/or using this
language to replace existing definitions when appropriate.
Family-Directed Planning: A process that empowers the family of a minor
to direct the development of a plan of supports and services which meet the
child and family's desired goals. The process: A. identifies existing supports
and services necessary to achieve the child and family's goals; B. identifies
natural supports available to the child and family and negotiates needed services
system supports; C. occurs with the support of a group of people chosen by
the child and family; D. is supportive of the self-determination of the child;
and E. mirrors the way in which families without children with disabilities
make plans.
Person-Directed Planning: A process that empowers the individual (and LAR
on the individual's behalf) to direct the development of a plan of supports
and services that meet the individual's goals. The process: A. identifies
existing supports and services necessary to achieve the individual's goals;
B. identifies natural supports available to the individual and negotiates
needed services system supports; C. occurs with the support of a group of
people chosen by the individual (and the LAR on the individual's behalf);
D. mirrors the way in which people without disabilities make plans.
Permanency Planning: A philosophy and planning process that focuses on
the outcome of family support by facilitating a permanent living arrangement
with the primary feature of an enduring and nurturing parental relationship.
Response: DHS agrees and will add definitions for Family-Directed Planning,
Person-Directed Planning, and Permanency Planning.
The following comments pertain to §50.4, Participant Eligibility Criteria.
Comment: Rather than limit the different service categories to specified
amounts we recommend that the overall expenses not exceed the individual cap
in order that maximum flexibility is given to consumers.
Response: To establish a cost-effective alternative to institutional care,
we believe these caps are necessary. However, DHS reserves the right to make
exceptions and will consider individual cases on an individual basis.
Comment: We want to be certain that home modification funds are not used
by participating CWP facilities to meet their licensure requirements; therefore,
we recommend rule language that prohibits facilities from using a CWP consumer's
budget for home modifications.
Response: Home modifications are excluded from Assisted Living/Residential
Care (AL/RC) services in the waiver and cannot be authorized for a participant
residing in AL/RC. The case manager will not authorize these services together,
so facilities will not have the option to charge these items to the participant's
ISP.
Comment: Please replace existing rule language with: "Enrollment into this
waiver program is limited to the number of participants approved by the Health
Care Financing Administration (HCFA) and funded by the State of Texas. For
the initial implementation of the CWP in 2001, slot allocation is projected
to be 200. Less than 200 individuals will inhibit the drawing of valid conclusions
and thus 200 individuals is the minimum needed."
Response: Slot allocation was added at the request of stakeholders last
fall. We will add language to clarify that enrollment is limited to 200 for
the pilot only and if the allocation changes, the ratios will remain the same.
Comment: What happens if a slot comes open in a "traditional" waiver before
a CWP slot? Does the person have to give up their place in line for the CWP
if they accept a CBA slot?
Response: A person accepting a CBA slot would give up their place in line
for the CWP. HB 2148 directs the pilot to "serve individuals not currently
receiving services under a Section 1915(c) waiver program."
Comment: We encourage the inclusion of two additional individuals from
the Deaf Blind Multiple Disabilities (DBMD) waiver to have a better representation
of this population within the CWP. We recommend that these slots be deducted
from those allocated the Home and Community-based Services (HCS) since the
existing two slots would come from Community Living Assistance and Support
Services (CLASS).
Response: The interest list for DBMD as well as the relatively small population
of that waiver did not warrant more than two slots. The funding has already
been allocated this biennium; however, we may evaluate the situation again
prior to the next biennium.
Comment: Please replace existing language in the rule with: "The percentage
of cost ceiling for Yearly Consolidated Waiver services may vary according
to the amount of Comprehensive Care Program (CCP) cost contributed to the
child's Individual Plan of Care (IPC), but should not exceed the estimated
annual cost in §50.4(a)(5)(A) and (B)."
Response: This cost ceiling is for children from the MDCP interest list
because children who are medically needy have high acute care costs. Since
they receive a large amount of services from CCP, we must have this cost ceiling
to maintain cost effectiveness for the overall waiver. Even at 50% of the
adults' cost ceiling, this is substantially higher than the cost ceilings
currently allowed in MDCP.
Comment: Home and Community Support Service Agencies (HCSSAs) have traditionally
performed the pre-admission assessment under CBA and CLASS, as initial experience
showed that DHS caseworkers were not qualified to perform them.
Response: HCSSAs will administer the pre-admission assessment. DHS will
delete the words "by DHS" for clarity.
The following comment pertains to §50.16. Individual Service Plan.
Comment: We would recommend the inclusion of the term, "consumer-directed"
or "person-directed" before "service plan."
Response: DHS agrees and will change the wording to person-directed.
The following comment pertains to Section 50.18. Right to Appeal.
Comment: We recommend that advance notices related to reduced or denied
services be issued in accessible formats.
Response: We provide notice verbally and in writing. We will consider other
options if specific requests are made.
The following comments pertain to §50.22. Service Array for Home and
Community Support Services Providers.
Comment: We believe it would be more appropriate to remove transportation
services (under (7)) and dental services (under (18)) from under §50.22,
since these services are provided directly through the Medicaid program. Persons
in these waivers are automatically eligible for Medicaid state plan services.
Response: The definition for transportation and dental services in the
waiver is different from the definition in the state plan. Because the scope
of services for these items is broader than the state plan allows, they must
be included as a waiver service.
Comment: What is the definition of "child support services?" This is not
defined in the rule. Are HCSSAs going to be expected to collect child support?
What about support services for adults?
Response: Child support services as defined in the waiver is a reimbursement
of the cost of child care that is determined to be disability-related, and
is limited to children under the age of 21. This is similar to part of the
adjunct support service provided in the MDCP waiver.
Comment: What is the definition of "intervenor services?" This is not defined
in the rule.
Response: Intervenor is a service currently utilized in the DBMD waiver.
All the services will have detailed definitions in the contract enrollment
packet.
The following comments pertain to §50.24. General Contracting.
Comment: Section 50.24(a)(2) should be reworded to read: "deliver CWP services
required to be licensed through the licensed home health category of HCSSA
licensure and may deliver other support services outside the HCSSA license."
Many of the services listed under §50.22 are not required to be delivered
through a licensed HCSSA.
Response: DHS agrees that this could be worded differently and will change
the wording to "Must have a HCSSA license with the licensed home health category
of licensure and deliver CWP services as required by licensure and by contract
as indicated in §50.22 of this title (relating to Service Array for Home
and Community Support Services Providers)."
Comment: Adult Foster Care (AFC) should also have the option of HCS standards.
Response: HCS foster care providers are welcome to apply for a CWP AFC
contract and one will be granted if they meet the criteria. This is an idea
we can consider in the future.
Comment: We recommend adding language that specifies that when a child
is placed in a facility for respite, the preference of the parent or LAR must
be taken into account. In addition, it should state that the facility must
demonstrate proficiency in caring for children, including current or recent
respite provisions for children, staff training, and available equipment to
meet the needs of children.
Response: Since the participant and/or the participant's parent or representative
must agree to the ISP, we do not feel this is necessary. No one is going to
place a child in respite out of the child's natural home without approval
from the IDT, which includes the family and participant's representative.
The additional language will be considered and implemented into policy regarding
respite for children, but a child's placement will be determined by the parents,
as long as it is with a contracted provider, and considers the child's needs
and preferences.
Comment: We recommend allowing Family Surrogate Service (FSS) providers
to meet standards of Child Protective Services (CPS) and/or HCS.
Response: There was stakeholder input in the meetings last fall against
allowing children in existing HCS homes, stating that Protective and Regulatory
Services (PRS) would be the choice for certifying homes for children since
that is their area of expertise. This service was developed based on stakeholder
input after much research and negotiation with PRS. Existing HCS providers
have the option to apply for contracts as FSS providers, and if they meet
the requirements, they will be given a contract to provide CWP FSS services.
Comment: Please add to the description of family surrogate services "community
integration" before "the" and after "health" in the second line so that the
statement reads: "...assures the community integration, health, safety, comfort,
and welfare of the individual." A critical element of §1915(c) waivers
is community integration.
Response: DHS agrees. "Community integration" will be added to the service
description.
Comment: What services are included in the term "independent advocacy?"
Unlike other services outlined in this section they refer back to existing
definitions and programs, this term has no specific definition. It is unclear
what role the "independent advocate" will have in dealing with CWP service
providers.
Response: The extent of the role of this provider is to be determined in
part by the participant as part of the person-directed philosophy. This provider
may be part of the IDT, and may represent the participant at meetings or appeals
at the participant's discretion.
The following comment pertains to §50.30(1). What category of license
does the HCSSA have to hold in order to provide 24-hour residential habilitation?
Response: HCSSAs contracted to deliver CWP services must have the licensed
home health category of licensure as indicated in §50.30(2) and in §50.24(a)(2)
and (3).
The following comments pertain to §50.32. Maintenance of Interest
Lists.
Comment: We believe there is a need to more clearly define how slots will
be offered to individuals when they become eligible for the CWP. The first
sentence under maintenance of interest lists states that "The Consolidated
Waiver Program (CWP) staff (will) maintain a list of individuals, identified
from existing §1915(c) waiver interest lists, who have expressed an interest
in receiving §1915(c) services." It does not indicate who is responsible
for determining whether someone on an existing §1915(c) waiting list
is interested in receiving CWP services. As written, either the CWP staff
or the §1915(c) waiver staff could perform this task. We recommend that
you clearly identify which staff will perform this "first step" function.
In addition, section §50.32(c) indicates that "The CWP staff remove an
individual's name from the interest list only if it is documented that ....."
Does this refer to the §1915(c) waiver program interest list or the CWP
interest list? Again, this needs to be clarified. Moreover, the language in
section §50.32(c) raises the issue of whether individuals lose their
spot on an existing §1915(c) interest list if they enroll in the CWP
pilot. We understood that someone could be in CWP and still keep his or her
spot on the originating §1915(c) waiver program interest list. This protects
CWP participants in case the pilot results indicate it is not advisable to
consolidate any or all of the waivers. We believe that individuals must have
the option of either CWP or the §1915(c) waiver program--when it finally
becomes available. It is important to include language to this effect in the
rules.
Response: DHS agrees this could be clarified and will add language to ensure
the correct interpretation. The CWP case manager has primary responsibility
for contacting the individual and ensuring they get enough information to
make an informed choice. No one is removed from any §1915(c) interest
list because they choose to participate or not participate in the CWP. All
participants retain their place on whatever list they came from and have the
option of choosing either CWP or the original waiver when their name comes
up on the original waiver list after having chosen CWP services. However,
they may not have the option to "transfer back" if they turn down the original
waiver service, as that would require new bypass rules for most of the waivers.
Comment: We recommend replacing "representative" with "legally authorized
representative (LAR)" in this section.
Response: DHS disagrees. Medicaid regulations 42 CFR Sections 435.907(a),
435.908, and 431.206(b)(3) do not use the term legally authorized representative
when describing persons who can act for a person applying for assistance,
in the application process, in a redetermination of eligibility and in a fair
hearing. These regulations generally allow a person acting responsibly for
the applicant or a person designated by the applicant or recipient to assist
or represent the individual. Requiring each individual to designate a Legally
Authorized Representative (LAR) could postpone eligibility for services and
delivery of services. It can be costly and time consuming to establish guardianships.
There is often no LAR for adults who are elderly or have disabilities, but
there is a family member or friend chosen by the participant to assist them
with decisions regarding care and service planning. We will coordinate with
the child's LAR, if there is one, just as we will coordinate with any participant's
legal guardian if they have one.
The following comments were received from Texas Council of Community MHMR
centers and the Private Providers Association of Texas:
Comment: The pilot establishes a point of entry to services that differs
from the point of entry to the Mental Retardation Services system. Please
add to or amend section 50.32, Maintenance of Interest Lists, with the following:
"In identifying the interest list for the CWP the DHS will develop, with
the Texas Department of Mental Health and Mental Retardation and its local
mental retardation authority (MRA) in Bexar County, the procedure by which
both agencies will jointly identify and inform individuals awaiting Home and
Community - Based Services of their choice between this waiver and the CWP.
This procedure will include the method for providing each person and their
family with clear and comprehensive information about the CWP, how it differs
from the Home and Community - Based Services waiver, and the process by which
the individual and their family may return to the Home and Community - Based
Services waiver should they choose the CWP and desire to change in the future."
Response: This process is already underway and we do not believe it needs
to be in rule form. However, we are developing a Memorandum of Understanding
(MOU) with the Texas Department of Mental Health and Mental Retardation (MHMR)
to address several issues and this may be included in that memorandum as well.
We agree that the MRA should be involved in informing consumers so they can
make an educated choice. Information will be made available to all appropriate
parties.
Comment: Persons with mental retardation and their families who volunteer
to be in the pilot should not lose access to the outcomes that come from Person-Directed
Planning, access to all the resources or services available to meet service
needs (e.g., those available at the local mental retardation authority and
not included within the waiver), and to the value base in today's mental retardation
services. Please incorporate person-directed and family-directed planning,
along with permanency planning for children and "aging in place" for adults
to delay or prevent institutionalization. Please add these terms to section
50.2, Definitions. We strongly recommend that DHS use the definitions for
person-directed and family-directed planning that have been adopted in MHMR
rules.
Response: DHS agrees that the philosophies of person-directed planning,
family-directed planning, and permanency planning are part of the CWP. Definitions
for these will be added to the rules.
Comment: Persons with mental retardation and their families need to receive
a comprehensive explanation of the pros and cons of enrollment in the CWP,
including differences and similarities between the HCS Program and the CWP.
Additional language suggested under the first comment can address this point.
Response: DHS agrees with the procedure, but disagrees with adding it to
the rules. Comprehensive information will be made available about all of the
waivers, not just the HCS waiver, as prospective participants' names will
come from five interest lists of existing waivers.
Comment: A consumer enrolled in the pilot should be able to return to the
mental retardation services system and enroll in the HCS waiver without penalty
(meaning, not losing their place on the interest list for HCS services). Please
add this concept to section 50.32, Maintenance of Interest Lists. Additional
language suggested under the first comment can address this point.
Response: Persons who elect to receive CWP services will not lose their
place on the respective interest list from which they came. This will be clarified
in the rules. Each waiver has its own rules about interest list maintenance
and conditions for bypassing the list if any exist. The CWP does not affect
the rules of any existing waiver program and cannot override any of the other
waivers' existing rules.
Comment: A consumer and their family should receive quality information
about options regarding assisted living settings; including person-directed
planning as part of CWP service plan development will assist in accomplishing
this.
Response: DHS agrees. The case manager has primary responsibility for informing
the person about all options in the waiver. Personal choice for living arrangements
lies with the participant.
Comment: DHS should assess Home and Community Support Services Agency
(HCSSA) standards compared to HCS principles for certification in order to
determine if variances in standards and survey process may inadvertently diminish
the quality of services to persons with mental retardation enrolled in the
pilot. To the best of our knowledge, this comparison has not occurred. In
light of the proposed rules, we suggest that this comparison include DHS licensing
standards for assisted living facilities, the CBA Manual as it addresses adult
foster care settings, and Texas Department of Protective and Regulatory Services
minimum standards for Independent Foster Family Homes as they address foster
care children. We continue to believe this comparison is essential to comprehensive
planning for this waiver and its' services to persons with mental retardation.
The comparison will benefit consumers, providers, both DHS and MHMR, and the
Health and Human Services Commission (HHSC), in understanding the impact of
the pilot on mental retardation services and the providers who deliver those
services.
Response: DHS will take this under consideration. This pilot will provide
the opportunity to see how different populations are served by one provider
base, one set of rates, and one set of rules. The differences in licensure
and standards that currently exist may become apparent and require more in
depth study, or the differences may not be as noticeable given one set of
providers following the same rules while serving multiple populations.
Comment: Because the assessment of this pilot will be important to future
policy and service system design, we ask that the three associations comprising
the Public/Private Sector Coalition be included in an advisory capacity to
DHS and HHSC. Please add an additional section to these rules that provides
for the appointment of an oversight committee that includes within its membership
representatives of the MHMR, it's local mental retardation authority in Bexar
County, and the three associations of the Public/Private Sector Coalition.
Response: HHSC has contracted with an independent party to do the evaluation
for the CWP, which will include provider satisfaction surveys, consumer satisfaction
surveys, and data compilation and evaluation. Consumers and providers have
been involved in the development of the evaluation tools. We will pass along
your suggestion to HHSC as they are coordinating the independent evaluation.
Comment: In addition, please amend the rules by adding a section that specifies
the qualification, role and responsibilities, and case load expectation of
the DHS case managers working with individuals and their families enrolling
in this pilot. These staff will be essential to the development of service
plans that successfully address each individual's needs. Because this information
was not published for comment, we strongly support DHS asking for stakeholder
review before adoption.
Response: This information was shared with stakeholders in meetings last
fall. The six Human Service Specialist positions are newly created positions
with responsibilities and requirements derived from the populations they serve.
These six positions will provide the administrative case management for the
200 individuals served in the CWP.
Comment: Please clarify in these rules (or in the preamble to the adopted
rules) how the Home and Community Support Services providers, emergency response
services providers, adult foster care providers, assisted living/residential
care providers, home-delivered meals providers, out-of-home respite providers,
family surrogate services providers, independent advocacy providers, and 24-hour
residential habilitation providers - all seemingly separate contractors with
DHS according to the rules - will be used in the development of a service
plan by an interdisciplinary team (as defined in the rules).
Response: DHS will provide this information in a policy manual, which will
be available to potential contractors. The definition of the interdisciplinary
team allows for inclusion of all providers and anyone the participant desires.
The intent and the purpose of the pilot and the eligibility and contracting
rules that are needed are in these rules, but the actual procedures should
not be in rule form as they will change as we gain more knowledge in combining
populations in one program. This is a pilot that requires some flexibility
to meet the goal of testing the feasibility of serving a broad population
with one set of providers and rates within a single program.
In addition, DHS received the following questions from CALAB, INC.
Comment: Will participants have unlimited medications like HCS consumers?
If not, what limitations will be in place?
Response: Yes, CWP participants will have unlimited prescriptions as in
the other §1915(c) waivers.
Comment: Referring to Section 50.4, what is the approval/payment process
for adaptive aids and minor home modifications?
Response: Adaptive aids and minor home modifications, when indicated as
needed on the ISP, are authorized on Service Authorization System (SAS) by
the case manager and the provider's bills via Claims Management Systems (CMS).
Comment: The co-pay described sounds like the Intermediate Care Facility
(ICF) applied income payments. Will co-pays be reviewed every six months with
adjustments and can immediate adjustments occur such as if a participant is
terminated from employment or when employment is gained?
Response: Co-pay is required for CWP participants who are residing in residential
services. It is the amount of income remaining after personal needs and room
and board payments are deducted. Co-pay will be reviewed as needed, and changes
and adjustments can occur at any time.
Comment: Under §50.20, there is not a listed cutoff date for submitting
claims. What cutoff date will be in place for claims submission? And will
there be any provision for exceptional circumstances with regard to late billing?
Response: All claims are paid through CMS and all claims filing rules apply
pursuant to §49.9. There are no provisions for exceptional circumstances.
Comment: Where are the definitions of the services listed under §50.22?
For example, does "nursing" mean a Registered Nurse (RN) or Licensed Vocational
Nurse (LVN) or both, depending on the actual nursing service being provided,
and so on.
Response: Definitions of services will be in the provider manual, which
will be distributed with contract application packets. Nursing may be RN or
LVN according to licensure, and will have separate rates.
Comment: Will there be billing guidelines like HCS? If so, when will these
be available for review?
Response: There will be billing guidelines available as well as training
on CMS if needed. More information was provided in the contract enrollment
packets in July of 2001.
Comment: As to the Adult Foster Care (AFC) and Family Surrogate Services
(FSS) described in §50.24, will a provider agency be allowed to be the
comprehensive provider of these services as HCS providers are allowed to do
right now? As an HCS provider, CALAB contracts with families to provide foster
care services and monitors the services received in such settings. Will this
type of comprehensive service be allowed in the CWP? If not, the participants
will not be able to benefit from the established foster family provider base
that HCS providers have to offer.
Response: The services provided by the HCSSA providers are listed in §50.22.
The waiver is currently written so that AFC and FSS are considered separate
contractors. Certainly the HCS foster family providers are welcome to apply
as individual CWP AFC or FSS providers and, if they meet the requirements,
will be granted individual contracts. HCSSAs are required to provide directly
or through subcontracts the 24-Hour Residential Habilitation service, which
is similar to HCS Residential Support. If there is a need for change in the
future, we will look at amending the rules and waivers, but this will require
a great deal of researching licensure issue and MHMR contracting issues. It
would delay implementation of the waiver and delay individuals from receiving
services so it will not be changed at this time.
Comment: Out-of-home respite as described in §50.24 lists an array
of places that this service can occur but fails to list HCS residential homes
and HCS foster homes, both of which provide an excellent source of respite.
Can these be added to the list of places where out-of-home respite can occur?
Response: The waiver did not include these as respite options. We will
consider adding them at a later date if there appears to be a need. However,
there are several other options available to meet the need for respite.
Comment: Where is the definition of Independent Advocacy? Section 50.24
references advocacy functions as described in the waiver service description,
but where is this description?
Response: The definition of Independent Advocacy is in the waiver and will
be in the provider manual. A separate contract is required for this and the
participant recommends the provider for contract enrollment. This service
cannot be provided by the HCSSA.
Comment: Under §50.30, a participant can receive 24-hour residential
services in an HCS residential home as long as the home has at least one person
receiving HCS services. What if the HCS recipient moves out after the fact?
Response: The provider will be allowed some time to seek another HCS participant.
If that does not occur, the CWP participant must be relocated to remain eligible.
Comment: What is the dollar amount of the personal needs allowance described
under §50.34?
Response: $85.00.
Comment: Where is the participant's bill of rights?
Response: There is not a specific bill of rights, however the provisions
of the waiver and the rules, policies, and procedures are in place in part
to protect the interests, identify the preferences, and ensure the health
and safety of the participant.
Comment: The proposed rules fail to clearly indicate which authorities
will be surveying or monitoring the providers. Duplication of surveying/monitoring
might result, which seems to conflict with the intent of the waiver.
Response: MHMR and DHS are developing an MOU to address this situation.
It is not our intent to duplicate activities already performed by another
state agency for the same provider. Licensure requires surveying and contract
management requires monitoring to ensure the integrity of the program, and
these activities may occur simultaneously by the same or different state agencies
for the same provider.
Comment: What documentation will the service providers have to maintain?
Response: Documentation requirements will be similar to existing waivers.
This waiver is a pilot, so we will address changes in procedures through frequent
contact with providers as we learn better ways to serve this diverse population.
The contract manager will keep providers apprised of monitoring requirements
and procedures.
Comment: How easily can a participant transfer from one service provider
to another?
Response: It is always the participant's choice to choose or change providers.
Procedures will be outlined in the provider manual, but will involve negotiation
of dates with both providers by the case manager and review of the ISP by
the IDT.
Comment: How easily can the ISP be modified or changed as a participant's
needs change?
Response: This is a function of the case manager in accordance with the
IDT. It will be a simple procedure for the case manager to authorize changes
once they are approved by the IDT.
Comment: How is the provider notified if a participant becomes ineligible
for Medicaid to ensure that the provider is not providing a service for which
they will not be reimbursed?
Response: It is the case manager's responsibility to coordinate eligibility
information with the provider and issue appropriate authorizations or notices
of adverse action.
Comment: How will the slots be rolled out?
Response: DHS has established a database of all individuals whose names
are on an interest list in Bexar County, with the ability to retrieve those
names in any desired number by age or interest list, in date order. The individuals
will be contacted by the case managers, given the option to participate, and
referred for assessment when they are identified as being interested in CWP.
This does not affect their placement or status on any other interest list.
Comment: How will provider enrollment occur?
Response: Providers will be contracted through open enrollment. A meeting
was held in July of 2001 in San Antonio to provide contract enrollment packets
and information to prospective contractors. Invitation letters were sent to
waiver providers in each of the five waivers. Training will be held in August
of 2001.
Comment: How available will the DHS Case Manager be? Will this Case Manager
be on call and available for emergencies?
Response: The DHS case manager will be available during normal business
hours. There will be provisions for providers to expedite services on an emergency
basis if needed.
Comment: Where is the provision for Day Habilitation services for individuals
who do not qualify for a Day Activity Health Services (DAHS) program, i.e.,
the participant with mental retardation (MR) who wants to attend a day habilitation
program? Is this included under the "habilitation" service?
Response: Day Habilitation is included with habilitation services.
Comment: How will the Mental Retardation Authority (MRA) be involved with
participants with mental retardation? As the entry point to services for individuals
with MR, the MRA needs to be involved so that families and individuals do
not experience confusion in their attempts to request services to meet their
needs.
Response: We are working on an MOU with MHMR to address this and other
situations. At minimum, the MRA will have information to provide to prospective
CWP participants regarding HCS so the individual can make an informed choice.
Comment: Will the person-directed planning process be used in the development
of the service plan? This process is crucial to ensure the provision of appropriate
services to persons with mental retardation.
Response: Person-directed planning is being used in this program.
Comment: What type of developmental disability (DD) training and experience
will the DHS Case Manager be required to have to ensure the needs of participants
with mental retardation are adequately met?
Response: The positions for case management are newly created positions
specifically for this program. Half of the case managers will have experience
and expertise in working with the MR/DD population and the other half will
have experience and expertise with elderly individuals and disabled adults
and children.
Comment: Families and individuals with mental retardation have fought long
and hard to be treated differently than the aged population. What assurances
do participants and providers have that this difference will be preserved
in this waiver?
Response: This is a pilot to test the feasibility of combining populations
within one program. There will be an independent evaluation performed by a
source contracted with HHSC. We will gather information and have invited consumers
and providers to participate in the evaluation of the program. We expect changes
to be made based on feedback from providers and participants for the duration
of the pilot.
Comment: When will the reimbursement rates be available?
Response: Rates will be available after the HHSC rate hearing on June 14,
2001.
The new sections are adopted under the Human Resources Code,
Title 2, Chapters 22 and 32, which authorize 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 new sections implement the Human Resources Code, §§22.001
- 22.030 and §§32.001 - 32.042.
§50.2.Definitions.
The following words and terms, when used in this chapter, have the
following meanings, unless the context clearly indicates otherwise:
(1)
Adult--For the purposes of this waiver, an individual,
applicant, or participant who is 21 years of age and older unless indicated
otherwise.
(2)
Advance notice--A statement of the adverse action the state
intends to take, provided in writing to the individual or the individual's
authorized representative advising them of the right to a hearing, the method
by which a hearing may be obtained, and that the individual may represent
himself or use legal counsel, a relative, a friend, or other spokesperson.
A participant is entitled to be notified 10 days before any reduction or termination
of his services and to have the notification mailed 12 days before the date
of reduction or termination.
(3)
Applicant--An individual whose eligibility for waiver services
in the Consolidated Waiver Program (CWP) is in the process of being determined.
An individual becomes an applicant when he is next in line to fill a slot
in the CWP, a slot exists, DHS has approved the filling of the slot, DHS has
notified the individual, and the individual has submitted the required application
materials to DHS within a specified time frame.
(4)
Case Management--Assistance in accessing medical, social,
educational, and other appropriate services that will help an individual achieve
a quality of life and community participation acceptable to the individual.
(5)
Child--For the purposes of this waiver, an individual,
applicant, or participant who is under the age of 21, unless indicated otherwise.
(6)
Family-Directed Planning--A process that empowers the family
of a minor to direct the development of a plan of support and services which
meet the child and family's desired goals. The Process:
(A)
identifies existing supports and services necessary to
achieve the child and family's goals;
(B)
identifies natural supports available to the child and
family and negotiates needed services system supports;
(C)
occurs with the support of a group of people chosen by
the child and family;
(D)
is supportive of the self-determination of the child; and
(E)
mirrors the way in which families without children with
disabilities make plans.
(7)
Individual Service Plan (ISP)--A person-directed plan of
care developed with the assistance of the IDT to prevent institutionalization
and facilitate an individual's ability to fully participate in the community,
taking into account the individual's preference.
(8)
Interdisciplinary Team (IDT)--At minimum, a group consisting
of the participant (applicant) and his parent or guardian, if appropriate;
DHS case manager; and home and community support services agency (HCSSA) representative.
Other professionals may be included as appropriate, as well as anyone the
participant or applicant chooses to invite to participate.
(9)
Legal confinement--The result of an individual having been
remanded by a judge to a particular setting other than their usual living
arrangement for a specified period of time or to achieve a desired outcome.
Some examples of settings for legal confinement include, but are not limited
to, jails, prisons, hospitals, or institutions for mental disease, or rehabilitation
facilities.
(10)
Participant--An individual who has been determined eligible
to receive waiver services, has enrolled in the Consolidated Waiver Program,
and receives waiver services according to an ISP.
(11)
Permanency Planning--A philosophy and planning process
that focuses on the outcome of family support by facilitating a permanent
living arrangement, with the primary feature of an enduring and nurturing
parental relationship.
(12)
Person-Directed Planning--A process that empowers the
individual to direct the development of a plan of supports and services that
meet the individual's goals. The Process:
(A)
identifies existing supports and services necessary to
achieve the individual's goals;
(B)
identifies natural supports available to the individual
and negotiates needed services system supports;
(C)
occurs with the support of a group of people chosen by
the individual, or their representative; and
(D)
mirrors the way in which people without disabilities make
plans.
(13)
Respite--Services provided to individuals unable to care
for themselves. These services are furnished on a short-term basis (up to
45 days per individual service plan year in full or partial day increments
as indicated in the individual service plan) because of the absence or need
for relief of those persons normally providing the care.
(14)
Suspension of services--A temporary cessation of certain
specified waiver services without loss of program or Medicaid eligibility.
(15)
TDMHMR Waiver--A §1915(c) waiver program operated
by the Texas Department of Mental Health and Mental Retardation, including
HCS, HSC-O, and MRLA.
(16)
Waiver program--A Medicaid program that provides home
and community-based services as an alternative to institutional care in accordance
with waiver provisions of the Social Security Act, §1915(c) (42 United
States Code §1396n).
§50.4.Participant Eligibility Criteria.
(a)
To be determined eligible by the Texas Department of Human
Services (DHS) for Consolidated Waiver Program (CWP) services, an applicant
or participant must:
(1)
live in the pilot area;
(2)
meet the financial eligibility criteria as defined in §50.6
of this title (relating to Financial Eligibility Criteria);
(3)
not participate in other §1915(c) Medicaid waiver
programs;
(4)
have an individual service plan for home and community-based
services developed by the interdisciplinary team (IDT). The individual service
plan (ISP) for home and community-based services must specify the type of
waiver services required to keep an individual in the community, the units
of waiver services, and their frequency and duration as defined in §50.16
of this title (relating to Individual Service Plan);
(5)
have an ISP for home and community-based services with
an estimated annual cost that does not exceed:
(A)
125% of the average aggregate cost of intermediate care
facilities for individuals with mental retardation (ICF-MR) Level I, V, VI,
and VIII for individuals who meet the ICF-MR level of care in accordance with §50.8(a)(2)
of this title (relating to Individual Level-of-Care Criteria); or
(B)
150% of the individual's actual Texas Index for Level of
Effort (TILE) payment rate for individuals with a nursing facility level-of-care
in accordance with §50.8(a)(1) of this title (relating to Individual
Level-of-Care Criteria);
(6)
meet the level-of-care criteria as described in §50.8
of this title (relating to Individual Level-of-Care Criteria);
(7)
have ongoing needs for waiver services whose projected
costs, as indicated on the ISP, do not exceed the maximum service ceilings
that follow:
(A)
adaptive aids and medical supplies service category cannot
exceed $10,000 per ISP plan year with DHS maintaining the right to exception;
(B)
minor home modifications service category cannot exceed
$7500 per individual per 7 years until age 21; then the minor home modifications
service category cannot exceed $7500 (lifetime maximum) with a maximum of
$300 for repairs per ISP year thereafter;
(C)
respite care cannot exceed 45 days per individual per ISP
year with DHS maintaining the right to exception; and
(D)
dental care cannot exceed $1000 per ISP year;
(8)
receive waiver services within 30 days after waiver eligibility
is determined;
(9)
meet the re-evaluation of institutional level-of-care criteria
as performed annually by DHS using the same criteria as used initially;
(10)
reside in his own home, in a licensed assisted living
facility, in an adult foster care home, 24-hour residential habilitation or
family surrogate services setting contracted with DHS to provide CWP services,
or in a foster home that meets the requirements for foster homes in accordance
with 40 TAC §700.1501 (concerning Foster and Adoptive Home Development).
CWP services will not be delivered to residents of hospitals, nursing facilities,
ICF-MR facilities, or unlicensed assisted living facilities unless the facility
is exempt in accordance with §50.30 of this title (relating to 24-Hour
Residential Habilitation) as pertains to provider requirements for 24-hour
residential habilitation; and
(11)
choose waiver services as an alternative to institutional
care.
(b)
A preadmission level of care assessment expires 120 calendar
days from its issuance. For participants who are enrolled in the waiver program
within 30 calendar days of discharge from an institution, the current level-of-care
assessment may be used for enrollment and is valid until the expiration date
on the approved ISP;
(c)
Enrollment into this waiver program is limited to the number
of participants approved by the Health Care Financing Administration (HCFA)
and funded by the State of Texas.
(d)
Enrollment in the pilot is restricted to 200 participants
with the following slot allocation:
(1)
50 slots for adults who meet the requirements for nursing
facility care from the Community Based Alternatives (CBA) interest list;
(2)
50 slots for children who meet the requirements for nursing
facility care from the Medically Dependent Children Program (MDCP) interest
list;
(3)
25 slots for adults with mental retardation who meet the
requirements for ICF-MR care level I from the Home and Community Based Services
(HCS) interest list;
(4)
25 slots for children with mental retardation who meet
the requirements for ICF-MR care level I from the HCS interest list;
(5)
25 slots for adults with related conditions or developmental
disabilities who meet the requirements for ICF-MR care level VIII from the
CLASS interest list, with one of these slots specifically targeted to an individual
who is deaf-blind with multiple disabilities from the Deaf Blind Multiple
Disabilities (DBMD) interest list; and
(6)
25 slots for children with related conditions or developmental
disabilities who meet the requirements for ICF-MR care level VIII from the
CLASS interest list, with one of these slots specifically targeted to an individual
who is deaf-blind with multiple disabilities from the DBMD interest list.
(e)
If the funding for CWP changes, the ratios for slot allocation
will remain the same.
(f)
For purposes of slot allocation, HCS means TDMHMR waiver
currently operating in the pilot area.
§50.16.Individual Service Plan (ISP).
(a)
Waiver participants must have a person-directed individual
service plan (ISP) for waiver services developed by the interdisciplinary
team (IDT) as described in the waiver request.
(b)
The IDT members must sign and date the ISP prior to implementation
of the plan. The IDT members must certify in writing that the waiver services
are necessary as an alternative to institutionalization and appropriate to
meet the needs of the individual in the community.
(c)
The Texas Department of Human Services (DHS) must approve
and the IDT must update the ISP at least annually.
§50.24.General Contracting.
(a)
Home and community support services agencies (HCSSAs).
To be qualified as a HCSSA provider to deliver Consolidated Waiver Program
(CWP) services under contract with the Texas Department of Human Services
(DHS), a HCSSA must:
(1)
have a separate contract with DHS to provide CWP services
in the designated service area in which services are to be delivered;
(2)
have a HCSSA license with the licensed home health category
of licensure and deliver CWP services, as required by licensure and by contract
as indicated in §50.22 of this title (relating to Service Array for Home
and Community Support Services Providers).
(3)
have the county in the DHS contract for CWP services included
in the identified service area on file at DHS with the licensed home health
category of licensure;
(4)
be authorized by the secretary of state to do business
in the State of Texas, if an out-of-state corporation; and
(5)
meet all requirements outlined in §48.6028 of this
title (relating to Provisional Contracts - Home and Community Support Service
Agencies). The reference to Community Based Alternatives (CBA) contract in §48.6028(k)(2)
and (3) means Consolidated Waiver Program (CWP) contract for home and community
support service agency providers that are contracted to deliver CWP services.
(b)
Emergency Response Services (ERS). To contract with DHS
to provide ERS under the CWP, a legal entity must:
(1)
have a 24-hour, seven-day-a-week emergency response monitoring
capability;
(2)
be a public agency or a private not-for-profit or for-profit
corporation that is either chartered with or authorized by the secretary of
state to transact business within the State of Texas;
(3)
be licensed by the Texas Commission on Private Security,
unless exempt from its regulation. The provider agency must send a copy of
its license and a copy of the annual renewal of its license to DHS; and
(4)
have a separate contract with DHS to provide CWP services
in the designated service area in which services are to be delivered.
(c)
Adult Foster Care (AFC). To contract with DHS to provide
AFC services under the CWP, the provider must:
(1)
be enrolled by DHS as a CWP adult foster care provider;
(2)
be serving four or fewer participants;
(3)
if serving four participants, be licensed by DHS as a Type
C Assisted Living Facility as defined in §92.4(3) of this title (relating
to Types of Assisted Living Facilities) of the DHS Licensing Standards for
Assisted Living Facilities;
(4)
agree to comply with all Adult Foster Care standards found
in the Community Based Alternatives (CBA) Provider Manual, Section 4200, Adult
Foster Care; and
(5)
have a separate contract with DHS to provide CWP services
in the designated service area in which services are to be delivered.
(d)
Assisted Living/Residential Care (AL/RC). To contract with
DHS to provide assisted living/residential care services under the CWP, the
facility must be licensed as an assisted living facility by DHS, type "A"
or "B" as defined in Chapter 92 of this title (relating to Licensing Standards
for Assisted Living Facilities); and have a separate contract with DHS to
provide CWP services in the designated service area in which services are
to be delivered.
(e)
Home-delivered Meals (HDM). To contract with DHS to provide
home delivered meals under the CWP, the provider must:
(1)
meet state, local health, and DHS requirements in the handling,
transporting, serving and delivery of these meals;
(2)
ensure that menus for standard diets are developed using
Dietary Guidelines for Americans and are reviewed and approved by a registered
dietitian;
(3)
ensure that menus for therapeutic and modified diets are
written by and prepared under the supervision of a registered dietitian;
(4)
ensure that established procedures are in place to assure
that each participant who requires a therapeutic and modified meal receives
only the meal ordered for that individual; and
(5)
have a separate contract with DHS to provide CWP services
in the designated service area in which services are to be delivered.
(f)
Out-of-home respite. To contract with DHS to provide out-of-home
respite services under the CWP, providers must have a separate contract with
DHS to provide CWP services in the designated service area in which services
are to be delivered and be one of the following:
(1)
a licensed Intermediate Care Facility for Individuals with
Mental Retardation (ICF-MR);
(2)
a licensed hospital;
(3)
a licensed nursing facility;
(4)
one of the American Camping Association's accredited camps;
(5)
a child care center that meets state requirements for respite;
(6)
an assisted living facility in accordance with §50.24(d)
of this title (relating to General Contracting); or
(7)
an adult foster care facility meeting the requirements
in §50.24(c) of this title (relating to General Contracting).
(g)
Family surrogate services. To contract with DHS to provide
family surrogate services (available only to CWP participants younger than
18 years of age), providers must meet all the requirements of the Texas Department
of Protective and Regulatory Services (TDPRS) minimum standards for Independent
Foster Family Homes pursuant to 40 TAC §720.231-720.248 (concerning Standards
for Foster Family Homes). Additional provider requirements are outlined in §50.26
of this title (relating to Care Options in Family Surrogate Services).
(h)
Independent advocacy. To contract with DHS to provide Independent
Advocacy services, the provider:
(1)
must be 21 years of age or older;
(2)
must be chosen and recommended for contract enrollment
by the participant;
(3)
must be capable of performing advocacy functions as described
in the waiver service description, which are specific to the participant's
needs;
(4)
cannot be providing any other CWP services to the participant;
and
(5)
cannot be the participant's parent, spouse, or first-degree
relative.
(i)
In addition to the requirements in subsections (a)-(h)
of this section, all providers contracted to deliver CWP services must adhere
to the rules found in Chapter 49 of this title (relating to Contracting for
Community Care Services).
§50.26.Care Options in Family Surrogate Services.
(a)
In addition to the requirements outlined in §50.24
of this title (relating to General Contracting), Family Surrogate Services
providers must provide services:
(1)
to no more than three children receiving similar services
in the same residence at any one time;
(2)
in a home in which the Family Surrogate Services provider
has legal responsibility for the residence;
(3)
in a home that is a typical residence within the community;
and
(4)
in a residence, neighborhood and community that meets the
needs and choices of each individual and provides an environment that assures
the community integration, health, safety, comfort, and welfare of the individual.
(b)
For any child who is a Consolidated Waiver Program (CWP)
participant and is placed in a Family Surrogate Services setting, the Family
Surrogate Services provider, along with the Interdisciplinary Team (IDT):
(1)
justifies the reasons for serving a minor individual outside
the natural or adoptive family home;
(2)
makes 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; and
(3)
documents permanency planning and appropriate habilitation
goals in the Individual Service Plan (ISP);
(c)
The Family Surrogate Services provider must provide care
to the CWP participant as appropriate and authorized on the ISP, including:
(1)
direct personal assistance with activities of daily living
(grooming, eating, bathing, dressing, and personal hygiene);
(2)
assistance with meal planning and preparation;
(3)
securing and providing transportation;
(4)
assistance with housekeeping;
(5)
assistance with ambulation and mobility;
(6)
reinforcement of counseling and therapy activities;
(7)
assistance with medications and the performance of tasks
delegated by a registered nurse;
(8)
supervision of individuals' safety and security;
(9)
facilitating inclusion in community activities, use of
natural supports, social interaction, participation in leisure activities,
and development of socially valued behaviors; and
(10)
habilitation, exclusive of day habilitation.
(d)
The Family Surrogate Services provider:
(1)
allows the individual's family members and friends access
to the individual without arbitrary restrictions unless exceptional conditions
are justified by the individual's IDT, documented in the ISP, and approved
by the DHS human services specialist;
(2)
ensures 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, unless contraindications are
documented with justification by the IDT;
(3)
ensures 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,
unless contraindications are documented with justification by the IDT; and
(4)
provides individuals with age-appropriate activities that
enhance self-esteem and maximize functional level.
§50.30.24-Hour Residential Habilitation.
In this section, HCS means TDMHMR waiver program currently operating
in the pilot area. To contract with the Texas Department of Human Services
(DHS) to provide 24-hour residential habilitation (available only to Consolidated
Waiver Program (CWP) participants 18 years of age and older), providers must:
(1)
be licensed Home and Community Support Services Agencies
(HCSSA) in accordance with Chapter 97 of this title (relating to Home and
Community Support Services Agencies);
(2)
have a contract with DHS to provide CWP services as a HCSSA,
as specified in §50.24 of this title (relating to General Contracting).
(3)
serve no more than four individuals receiving similar services
at one location; and
(4)
either:
(A)
be licensed type "A" or "B" assisted living facilities;
or
(B)
meet current state assisted living licensure exemptions
for this type of facility as outlined in Health and Safety Code, §247.004(4).
This exemption requires the Texas Department of Mental Health and Mental Retardation
(TDMHMR) to monitor these providers. TDMHMR will only monitor them if the
provider is certified as a Home Community-Based Services (HCS) provider in
good standing with TDMHMR and there is at least one person receiving HCS at
the specific location. In order to meet this exemption, the provider must:
(i)
have a contract with TDMHMR to provide HCS services; and
(ii)
be in good standing with TDMHMR; and
(iii)
have at least one person receiving HCS services on the
premises.
§50.32.Maintenance of Interest Lists.
(a)
The Consolidated Waiver Program (CWP) staff maintain a
list of individuals, identified from existing §1915(c) waiver interest
lists, who have expressed an interest in receiving §1915(c) waiver services.
The list can be accessed by Texas Department of Human Services (DHS) staff
and is organized by age, institutional base, and Mental Retardation/Developmental
Disability status in order to fulfill the slot allocation as outlined in §50.4(d)
of this title (relating to Participant Eligibility Criteria).
(b)
The CWP staff assign an applicant's placement on the CWP
interest list chronologically by date of request for waiver services.
(c)
The CWP staff remove an individual's name from the CWP
interest list only if it is documented that:
(1)
a written request has been received from the individual
or their representative to remove the individual's name from the interest
list;
(2)
the individual is deceased;
(3)
the individual moved out of the designated pilot service
area;
(4)
the Texas Department of Human Services (DHS) has denied
the applicant enrollment and the applicant or their representative has had
an opportunity to exercise the applicant's right to appeal the decision according
to §50.18 of this title (relating to Right to Appeal);
(5)
the individual or the individual's representative has not
responded to the CWP's notification of a program vacancy within 30 calendar
days of the date of the CWP's written notification;
(6)
the individual is receiving §1915(c) waiver services;
(7)
the individual or the individual's representative chooses
participation in another §1915(c) Medicaid waiver program instead of
the CWP when offered this choice in accordance with §50.4(a) of this
title (relating to Participant Eligibility Criteria);
(8)
the individual or the individual's representative refuses
CWP services; or
(9)
the applicant is certified as eligible for CWP services.
(d)
The CWP case manager will inform the applicant that:
(1)
participating in the CWP will not affect an individual's
placement on any other waiver interest list;
(2)
a participant is not restricted from transferring from
the CWP to another waiver if their name comes up on the other waiver's waiting
or interest list, and they are eligible for that waiver; and
(3)
A CWP participant who is eligible for, and chooses to receive
services from another waiver will be denied CWP services, and will not be
allowed to return to the CWP interest list.
§50.46.Sanctions.
(a)
The Texas Department of Human Services (DHS) may sanction,
up to and including contract termination, a Consolidated Waiver Program (CWP)
provider agency that:
(1)
has discontinued services to a participant for a reason
other than what is allowed in §50.42 of this title (relating to Crisis
Intervention Requiring Immediate Suspension or Reduction of Services without
Advance Notice) and §50.44 of this title (relating to Immediate Suspension
Due to Temporary Institutional Stay);
(2)
uses the information cited in §50.42 to this title
(relating to Crisis Intervention Requiring Immediate Suspension or Reduction
of Services without Advance Notice) to discontinue services to a participant
when the provider agency knew or should have known that the cited information
did not apply to the participant; or
(3)
is a Texas Department of Mental Health and Mental Retardation
(TDMHMR) waiver program provider who is being monitored by the TDMHMR as indicated
in §50.30 of this title (relating to 24-Hour Residential Habilitation)
when DHS receives a recommendation from TDMHMR that the provider should be
sanctioned or is being sanctioned by TDMHMR.
(b)
Additional reasons for the CWP provider agency sanctions
are located in §49.19 of this title (relating to Contracting for Community
Care Services).
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 July 31, 2001.
TRD-200104419
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Effective date: August 20, 2001
Proposal publication date: April 20, 2001
For further information, please call: (512) 438-3734