Part 1.
TEXAS DEPARTMENT OF HUMAN SERVICES
Chapter 3.
TEXAS WORKS
Subchapter OO. ELECTRONIC BENEFIT TRANSFER (EBT) RETAILER REQUIREMENTS
40 TAC §3.5006
The Texas Department of Human Services (DHS) adopts an amendment
to §3.5006, in its Electronic Benefit Transfer (EBT) Retailer Requirements
chapter. The amendment is adopted without changes to the proposed text published
in the June 1, 2001 issue of the
Texas Register
(26 TexReg 3921). The amendment will not be republished.
Justification for the amendment is to comply with a federal interpretation
and the implementation of the new multi-vendor EBT system.
No comments were received regarding the proposal.
The amendment is adopted under the Human Resources Code, Title
2, Chapter 31, which authorizes the department to administer financial assistance
programs.
The amendment implements the Human Resources Code, §31.001-31.0325.
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 August 8, 2001.
TRD-200104556
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Effective date: September 1, 2001
Proposal publication date: June 1, 2001
For further information, please call: (512) 438-3734
40 TAC §20.112
The Texas Department of Human Services (DHS) adopts an amendment
to §20.112, with changes to the proposed text published in the May 18,
2001, issue of the
Texas Register
(26 TexReg
3610). The change to §20.112(a) in the proposed rule has been removed
in the adopted rule. Consumer-Managed Personal Assistance Services (CMPAS)
will not be an eligible program under the adopted version. The adopted rule
also contains minor technical changes that clarify the rule.
Justification for the amendment is to clarify the definition of an attendant,
add the Deaf-Blind with Multiple Disabilities (DB-MD) waiver program, and
clarify the enrollment process. DB-MD has been included as an eligible program
to participate in the Attendant Compensation Rate Enhancement. This will allow
those contracted DB-MD providers the opportunity to receive enhanced funding
for participating in the Attendant Compensation Rate Enhancement.
The department's experience administering the first open enrollment period
for the Attendant Compensation Rate Enhancement lead it to simplify the enrollment
process by allowing providers to "roll over" their participation to the following
year.
The rules that are currently in effect automatically enroll new contracted
providers as participants until they formally choose an enrollment status.
This practice lead to new contracted providers becoming participants while
being unfamiliar with the spending requirements. The rule has been changed
to have new contracted providers enrolled as nonparticipants and allow them
time to make an informed decision with their participation status.
Spending requirements are necessary so the department can determine whether
a provider is spending funds appropriately. The department's experience with
contracted participating providers failing to submit required spending reports
within the specified timeframe warranted a rule change to prompt providers
to submit reports by removing those providers from participation.
Since the job functions of a medication aide are comparable to that of
an attendant, the definition of an attendant has been expanded to include
those staff. Conversely, since the job functions of an activity director do
not compare with those of an attendant, the rule has been revised to not include
those staff members as attendants.
Detail was added to the description of the calculation of the attendant
compensation rate component to better describe the actual process.
The spending requirement for those contracted participating providers who
serve both Residential Care and Community Based Alternatives Assisted Living/Residential
Care clients in a single facility were unclear in the current Attendant Compensation
Rate Enhancement Rules and has been revised to state that the spending requirement
is determined for both programs together and not each program separately.
The rules currently in effect did not explain the participation status
of a new owner who does not have existing participating contracts but accepts
a contract assignment of a participating contract(s). The revised rules clarify
that the individual or group status of participating contracts under the previous
owner will confer to the new owner.
The Texas Health and Human Services Commission (HHSC) is simultaneously
adopting a related amendment to 1 TAC §355.112 in this issue of the
No comments were received regarding the proposal.
The amendment is adopted 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 amendment implements the Human Resources Code, §§22.001-22.030
and §§32.001-32.042.
§20.112.Attendant Compensation Rate Enhancement.
(a)
Eligible programs. Providers contracted in the Primary
Home Care, including Family Care (PHC/FC); Day Activity and Health Services
(DAHS); Residential Care (RC); Community Living Assistance and Support Services
(CLASS) - Direct Service Agency; Community Based Alternatives (CBA) - Home
and Community Support Services (HCSS); Deaf-Blind Multiple Disabilities Waiver
(DBMD); and CBA - Assisted Living/Residential Care (AL/RC) programs, are eligible
to participate in the attendant compensation rate enhancement.
(b)
Definition of attendant. An attendant is the unlicensed
caregiver providing direct assistance to the clients with Activities of Daily
Living (ADL) and Instrumental Activities of Daily Living (IADL).
(1)
In the case of DAHS, RC, and AL/RC programs, the attendant
may perform some nonattendant functions. In such cases, the attendant must
perform attendant functions at least 80% of his or her total time worked.
Staff in these settings not providing attendant services at least 80% of their
total time worked are not considered attendants. Time studies must be performed
in accordance with §20.105(b)(2)(B)(i) for staff in the DAHS, RC and
AL/RC programs that are not full-time attendants but perform attendant functions
to determine if a staff member meets this 80% requirement. Failure to perform
the time studies for these staff will result in the staff not being considered
to be attendants.
(2)
Attendants do not include the director, administrator,
assistant director, assistant administrator, clerical and secretarial staff,
professional staff, other administrative staff, licensed staff, attendant
supervisors, cooks and kitchen staff, maintenance and groundskeeping staff,
activity director, and laundry and housekeeping staff. In the case of PHC/FC,
CLASS, CBA HCSS, and DBMD staff other than attendants may deliver attendant
services and be considered an attendant if they must perform attendant services
that cannot be delivered by another attendant to prevent a break in service.
(3)
An attendant also includes a driver in the DAHS program.
(4)
An attendant also includes medication aides in the RC and
AL/RC program.
(c)
Attendant compensation cost center. This cost center will
include employee compensation, contract labor costs, and personal vehicle
mileage reimbursement for attendants as defined in subsection (b) of this
section.
(1)
Attendant compensation is the allowable compensation for
attendants defined in §20.103(b)(1) of this title (relating to Specifications
for Allowable and Unallowable Costs) and required to be reported as either
salaries and/or wages, including payroll taxes and workers' compensation,
or employee benefits. Benefits required by §20.103(b)(1)(A)(iii) of this
title (relating to Specifications for Allowable and Unallowable Costs) to
be reported as costs applicable to specific cost report line items, except
as noted in paragraph (3) of this subsection, are not to be included in this
cost center.
(2)
Contract labor refers to personnel for whom the contracted
provider is not responsible for the payment of payroll taxes, such as FICA,
Medicare, and federal and state unemployment insurance, and who perform tasks
routinely performed by employees where allowed by program rules. Allowable
contract labor costs are defined in §20.103(b)(2)(C) of this title (relating
to Specifications for Allowable and Unallowable Costs).
(3)
Mileage reimbursement paid to the attendant for the use
of his or her personal vehicle and which is not subject to payroll taxes is
considered compensation for this cost center.
(d)
Rate year. The rate year begins on the first day of September
and ends on the last day of August of the following year.
(e)
Open enrollment. Open enrollment begins on the first day
of July and ends on the last day of that same July preceding the rate year
for which payments are being determined. The Texas Department of Human Services
(DHS) may conduct additional enrollment periods during a rate year.
(f)
Enrollment contract amendment. An initial enrollment contract
amendment is required from each provider choosing to participate in the attendant
compensation rate enhancement. On the initial enrollment contract amendment
the provider must specify for each contract a desire to participate or not
to participate. The participating provider must specify for each program the
desire to have all participating contracts be considered as a group or as
individuals for purposes related to the attendant compensation rate enhancement.
For the PHC/FC program, the participating provider must also specify if he
wishes to have either priority 1, nonpriority, or both priority 1 and nonpriority
services participating in the attendant compensation rate enhancement. If
the PHC/FC provider selects to have their contracts participating as a group,
then the provider must select to have either priority 1, nonpriority, or both
priority 1 and nonpriority services participate for the entire group of contracts.
For providers delivering services to both RC and CBA AL/RC clients in the
same facility, participation includes both the RC and CBA AL/RC programs.
After initial enrollment, participating and nonparticipating providers may
request to modify their enrollment status during any open enrollment period.
A nonparticipant can request to become a participant; a participant can request
to become a nonparticipant; a participant can request to change its participation
level; a provider whose participating contracts are being considered as a
group can request to have them considered as individuals; and a provider whose
participating contracts are being considered as individuals can request to
have them considered as a group. Requests to modify a provider's enrollment
status during an open enrollment period must be received by DHS's Rate Analysis
Department by the last day of the open enrollment period as per subsection
(e) of this section. Providers from which DHS's Rate Analysis Department has
not received an acceptable request to modify their enrollment by the last
day of the open enrollment period will continue at the level of participation
and group or individual status in effect during the open enrollment period
within available funds. To be acceptable, an enrollment contract amendment
must be completed according to DHS instructions, signed by an authorized signatory
as per the DHS Corporate Board of Directors Resolution applicable to the provider's
contract or ownership type, and legible.
(g)
New contracts. For the purposes of this section, for each
rate year a new contract is defined as a contract delivering its first day
of service to a DHS client on or after the first day of the open enrollment
period, as defined in subsection (e) of this section, for that rate year.
Contracts that underwent a contract assignment are not considered new contracts.
For purposes of this subsection, an acceptable contract amendment is defined
as a legible enrollment contract amendment that has been completed according
to DHS instructions, signed by an authorized signator as per the Corporate
Board of Directors Resolution applicable to the provider's contract or ownership
type, and received by DHS's Rate Analysis Department within 30 days of DHS's
mailing of notification to the provider that such an enrollment contract amendment
must be submitted. New contracts will receive the nonparticipant attendant
compensation rate as specified in subsection (m) until:
(1)
for new contractors specifying the desire not to participate
on an acceptable enrollment contract amendment, the attendant compensation
rate component is as specified in subsection (m) of this section.
(2)
for new contractors specifying the desire to participate
on an acceptable enrollment contract amendment, the attendant compensation
rate component is adjusted as specified in subsections (l) and (n) of this
section retroactive to the first day of their contract.
(3)
for new contracts from which an acceptable enrollment contract
amendment is not received, the attendant compensation rate component is as
specified in subsection (m) of this section.
(h)
Attendant Compensation Report submittal requirements. Attendant
Compensation Reports must be submitted by participating contracted providers
as follows.
(1)
Annual report. Participating contracted providers will
provide DHS, in a method specified by DHS, an annual Attendant Compensation
Report reflecting the activities of the provider while delivering contracted
services from the first day of the rate year through the last day of the rate
year. This report must be submitted for each participating contract if the
provider requested participation individually for each contract; or, if the
provider requested participation as a group, the report must be submitted
as a single aggregate report covering all participating contracts within one
program of the provider. The aggregate report must include contracts that
are new, excluded from participation, voluntary withdrawal from participation,
and contract assignments, as defined in subparagraphs (B)-(E) of this paragraph,
which were part of the group for any portion of the rate year. A participating
contract that has been terminated in accordance with subsection (v) of this
section or that has undergone a contract assignment in accordance with subsection
(w) of this section will be considered to have participated on an individual
basis for compliance with reporting requirements for the owner prior to the
termination or contract assignment. This report will be used as the basis
for determining compliance with the spending requirements and recoupment amounts
as described in subsection (s) of this section. Contracted providers failing
to submit an acceptable annual Attendant Compensation Report within 60 days
of the end of the rate year will be placed on vendor hold until such time
as an acceptable report is received and processed by DHS. Contracted providers
participating for less than a full year must provide Attendant Compensation
Reports as follows.
(A)
A participating provider whose contract is terminated either
voluntarily or involuntarily before the end of the rate year must submit an
Attendant Compensation Report covering the period from the beginning of the
rate year to the date recognized by DHS as the contract termination date.
This report will be used as the basis for determining recoupment as described
in subsection (s) of this section.
(B)
In cases where a participating provider changes ownership
through a contract assignment, the owner prior to the change of ownership
must submit an Attendant Compensation Report, covering the period from the
beginning of the rate year to the effective date of the contract assignment
as determined by DHS. The owner, after the change of ownership, must submit
an Attendant Compensation report within 60 days of the end of the rate year,
covering the period from the effective date of the contract assignment as
determined by DHS to the end of the rate year. This report will be used as
the basis for determining recoupment as described in subsection (s) of this
section.
(C)
A participating provider who is excluded from participation
as per subsection (u) of this section must submit an Attendant Compensation
Report within 60 days from the date of notification of the exclusion, covering
the period from the beginning of the rate year to the date of exclusion as
determined by DHS. DHS will use this report as the basis for determining recoupment
as described in subsection (s) of this section.
(D)
A participating provider who voluntarily withdraws from
participation as per subsection (x) of this section must submit an Attendant
Compensation Report within 60 days from the date of withdrawal as determined
by DHS, covering the period from the beginning of the rate year through the
date of withdrawal as determined by DHS. DHS will use this report as the basis
for determining recoupment as described in subsection (s) of this section.
(E)
A participating provider who is a new contractor as per
subsection (g) of this section must submit an Attendant Compensation Report
within 60 days of the end of the rate year, covering the period from the first
day of the month following receipt by DHS's Rate Analysis Department of an
acceptable enrollment contract amendment as per paragraph (g) (1) of this
section through the end of the rate year.
(2)
Six-month report. Within 60 days of the end of the first
six months of the rate year, participating contracted providers will provide
DHS, in a method specified by DHS, a six- month Attendant Compensation Report
reflecting the activities of the provider while delivering contracted services
from the first day of the rate year through the last day of February of the
rate year. The report must be submitted for each participating contract if
the provider requested participation individually for each contract; or, if
the provider requested participation as a group, the report must be submitted
as a single aggregate report covering all participating contracts within one
program of the provider. Participating providers will use this six-month report
to assist them in determining their level of compliance with the spending
requirements and to take any appropriate action necessary to come into compliance
with the spending requirements. The provider is responsible for the management
of attendant compensation expenditures in compliance with the spending requirements
stated in subsection (s) of this section.
(3)
Other reports. DHS may require other reports from all contracts
as needed.
(4)
Vendor hold. DHS will place on hold the vendor payments
for any contractor who does not submit an Attendant Compensation Report completed
in accordance with all applicable rules and instructions by the due dates
described in this subsection. This vendor hold will remain in effect until
an acceptable Attendant Compensation Report is received by DHS. Participating
contractors who do not submit an annual Attendant Compensation Report completed
in accordance with all applicable rules and instructions within 60 days of
the vendor hold being placed will become nonparticipants until the first day
of the month after all of the following conditions are met:
(A)
the provider submits an acceptable annual Attendant Compensation
Report;
(B)
the provider submits a separate Attendant Compensation
Report from the beginning of the current rate year to the date they were disenrolled
as a participant;
(C)
the provider repays to DHS funds that are identified for
recoupment from subsection (s) of this section; and
(D)
DHS receives, in writing by certified mail, a request from
the provider to be restored to the participant status.
(i)
Attendant Compensation Report contents. Each Attendant
Compensation Report will include any information required by DHS to implement
this attendant compensation rate enhancement.
(j)
Completion of compensation reports. All Attendant Compensation
Reports must be completed in accordance with the provisions of §§20.102-20.105
of this title (relating to General Principles of Allowable and Unallowable
Costs, Specifications for Allowable and Unallowable Costs, Revenues, and General
Reporting and Documentation Requirements, Methods, and Procedures) and may
be reviewed or audited in accordance with §20.106 of this title (relating
to Basic Objectives and Criteria for Audit and Desk Review of Cost Reports).
(k)
Enrollment. Providers choosing to participate in the attendant
compensation rate enhancement must submit to DHS a signed enrollment contract
amendment as described in subsection (f) of this section, before the end of
the enrollment period. Participation is determined separately for each program
specified in subsection (a) of this section except that for providers delivering
services to both RC and CBA AL/RC clients in the same facility, participation
includes both the RC and CBA AL/RC programs. For PHC/FC, participation is
also determined separately for priority 1 and nonpriority services. Participation
will remain in effect, subject to availability of funds, until the provider
notifies DHS, in accordance with subsection (x) of this section, that it no
longer wishes to participate or until DHS excludes the contract from participation
for reasons outlined in subsection (u) of this section. Contracts voluntarily
withdrawing from participation will have their participation end effective
with the date of withdrawal as determined by DHS. Contracts excluded from
participation will have their participation end effective on the date determined
by DHS.
(l)
Determination of attendant compensation rate component
for participating contracts. For each of the programs identified in subsection
(a) of this section attendant compensation rate enhancement increments associated
with each enhanced attendant compensation level will be determined for participating
contracts from subsection (k) of this section. The attendant compensation
rate enhancement increments will be determined by taking into consideration
quality of care, labor market conditions, economic factors, and budget constraints.
The attendant compensation rate enhancement increments will be determined
on a per-unit-of-service basis applicable to each program or service.
(m)
Determination of attendant compensation rate component
for nonparticipating contracts. For each of the programs identified in subsection
(a) of this section DHS will calculate an attendant compensation rate component
for nonparticipating contracts as follows.
(1)
Determine for each contract included in the cost report
data base used in determination of rates in effect on September 1, 1999, the
attendant compensation cost center from subsection (c) of this section.
(2)
Adjust the cost center data from paragraph (1) of this
subsection in order to account for inflation utilizing the inflation factors
used in the determination of the September 1, 1999 rates.
(3)
For each contract included in the cost report database
used to determine rates in effect on September 1, 1999, divide the result
from paragraph (2) of this subsection by the corresponding units of service.
Provider projected costs per unit of service are rank- ordered from low to
high, along with the provider's corresponding units of service. For DAHS,
the median cost per unit of service is selected. For all other programs, the
units of service are summed until the median hour of service is reached. The
corresponding projected cost per unit of service is the weighted median cost
component. The result is multiplied by 1.044 for all programs in subsection
(a) of this section except for RC and AL/RC, which is multiplied by 1.07.
The result is the attendant compensation rate component for nonparticipating
contracts.
(4)
The attendant compensation rate component will remain constant
over time, except for adjustments necessitated by increases in the minimum
wage. In such cases, adjustments to the nonparticipating rates are limited
to ensuring that these rates are adequate to cover mandated minimum wage levels.
(n)
Determination of attendant compensation rate enhancements.
DHS will determine attendant compensation rate enhancement increments associated
with each enhanced attendant compensation level. The attendant compensation
rate enhancement increments will be determined by using data from sources
such as cost reports, surveys, and/or other relevant sources. The attendant
compensation rate enhancement increments will be determined by taking into
consideration quality of care, labor market conditions, economic factors,
and budget constraints. The attendant compensation rate enhancement increments
will be determined on a per-unit-of-service basis applicable to each program
or service.
(o)
Enhanced attendant compensation. Participating contracts
desiring to provide attendant compensation above the level included in subsection
(l) of this section may request attendant compensation increments from an
array of enhanced attendant compensation options and associated add-on payments
determined in subsection (n) of this section during open enrollment. Participating
providers that select to have all of their contracts participate in a program
as a group must request a single attendant compensation increment for the
entire group of contracts. PHC/FC providers participating as a group must
select a single attendant compensation increment for their entire group of
contracts for the priority 1 and/or nonpriority services they have selected
for participation.
(p)
Granting additional attendant compensation rate enhancement
increments. DHS divides all requests for attendant compensation rate enhancement
increments into two groups: pre-existing rate enhancement increments which
providers requested to carry over from the prior year and newly requested
rate enhancement increments. Newly requested rate enhancement increments may
be requested by providers that were nonparticipants in the prior year or by
providers which were participants during the prior year desiring to be granted
additional rate enhancement increments. Using the process described herein,
DHS first determines the distribution of carry-over rate enhancement increments.
If funds are available after the distribution of carry-over rate enhancement
increments, DHS determines the distribution of newly requested rate enhancement
increments as follows:
(1)
DHS determines projected units of service for contracts
requesting each enhancement increment and multiplies this number by the enhancement
rate add-on amount associated with that enhancement increment as determined
in subsection (n) of this section.
(2)
DHS compares the sum of the products from paragraph (1)
of this subsection to available funds.
(A)
If the product is less than or equal to available funds,
all requested enhancements are granted.
(B)
If the product is greater than available funds, enhancements
are granted beginning with the lowest level of enhancement and granting each
successive level of enhancement until requested enhancements are granted within
available funds. Based upon an examination of existing compensation levels
and compensation needs, DHS may grant certain enhancement options priority
for proportional distribution.
(q)
Notification of granting of enhancements. Participating
contracts are notified, in a manner determined by DHS, as to the disposition
of their request for additional attendant compensation rate enhancement increments.
(r)
Total attendant compensation rate for participating contracts.
Each participating contract will receive an attendant compensation rate equal
to the attendant compensation rate component for participating contracts from
subsection (l) of this section, plus any additional attendant compensation
rate enhancement payments granted to the contract.
(s)
Spending requirements for participating contracts. DHS
will determine from the Attendant Compensation Report, as specified in subsection
(h) of this section and other appropriate data sources, the amount of attendant
compensation spending per unit of service delivered. The provider's compliance
with the spending requirement is determined based on the total attendant compensation
spending as reported on the Attendant Compensation Report for each participating
contract if the provider requested participation individually for each contract.
A participating contract that has been terminated in accordance with subsection
(v) of this section or that has undergone a contract assignment in accordance
with subsection (w) of this section will be considered to have participated
on an individual basis for compliance with the spending requirement for the
owner prior to the termination or contract assignment. If the provider specified
that he wished to have all participating contracts be considered as a group
for purposes related to the attendant compensation rate enhancement, as specified
in subsection (f) of this section, compliance with the spending requirement
is based on the total attendant compensation as reported on the single aggregate
attendant compensation report described in subsection (h) of this section.
Compliance with the spending requirement is determined separately for each
program specified in subsection (a) of this section, except for providers
delivering services to both RC and CBA AL/RC clients in the same facility
whose compliance is determined by combining both programs. DHS will calculate
recoupment, if any, as follows.
(1)
For the rate year beginning September 1, 2000, the attendant
compensation spending per unit of service will be multiplied by 1.09 to determine
the adjusted attendant compensation per unit of service. For the rate year
beginning September 1, 2001, and thereafter, the attendant compensation spending
per unit of service will be multiplied by 1.07 to determine the adjusted attendant
compensation per unit of service.
(2)
The adjusted attendant compensation per unit of service
from paragraph (1) of this subsection will be subtracted from the accrued
attendant compensation revenue per unit of service to determine the amount
to be recouped by DHS. If the adjusted attendant compensation per unit of
service is greater than or equal to the accrued attendant compensation revenue
per unit of service, there is no recoupment.
(3)
The amount paid for attendant compensation per unit of
service after adjustments for recoupment must not be less than the amount
determined in subsection (m) of this section.
(t)
Notification of recoupment. Providers will be notified
in a manner specified by DHS within 90 days of the due date of their annual
Attendant Compensation Report as described in subsection (h)(1) of this section
or within 90 days of the date the report is submitted, whichever is later,
of the amount to be repaid to DHS. If a subsequent review or audit results
in audit adjustments to the annual Attendant Compensation Report that changes
the amount to be repaid to DHS, the provider will be notified in writing of
the adjustments and the adjusted amount to be repaid to DHS. DHS will recoup
any amount owed from a provider's vendor payment(s) following the date of
the notification letter.
(u)
Exclusion from participation. If the attendant compensation
report described in subsection (h)(1) of this section indicates that the participating
provider did not spend 90% of the accrued total attendant compensation rate
described in subsection (r) of this section on attendant compensation spending
as determined from subsection (s) of this section, DHS will notify the provider
of the noncompliance. If the subsequent six-month compensation report from
subsection (h)(2) of this section indicates that the provider has not spent
90% of the attendant compensation revenue on attendant compensation spending,
the contract will be excluded from participation in the attendant rate enhancement
effective immediately upon notice of failure to meet the spending requirement.
The contract will be excluded from participation in the attendant compensation
rate enhancement and will remain a nonparticipant for the remainder of the
rate year plus an additional rate year. Providers whose contracts are participating
as a group must meet the requirements of this subsection as a group or all
the contracts of the group will be excluded.
(v)
Contract terminations. For terminating participants DHS
will place a vendor hold on the payments of the contracted provider until
DHS receives an acceptable Attendant Compensation Report, as specified in
subsection (h)(1)(A) of this section, and funds identified for recoupment
from subsection (s) of this section are repaid to DHS. DHS will recoup any
amount owed from the provider's vendor payments that are being held. In cases
where funds identified for recoupment cannot be repaid by the terminating
provider's last vendor payment, the responsible entity from subsection (cc)
of this section will be jointly and severally liable for any additional payment
due to DHS. Failure to repay the amount due or submit an acceptable payment
plan within 60 days of notification will result in placement of a vendor hold
on all DHS contracts controlled by the responsible entity and will bar the
responsible entity from enacting new contracts with DHS until repayment is
made in full.
(w)
Contract assignments. The following applies to contract
assignments.
(1)
Contracts participating under the prior legal entity will
continue participation under the legal entity accepting the contract assignment.
When the provider or legal entity accepting the contract assignment has their
contracts participating as individuals, participation in the attendant compensation
rate enhancement confers to the provider or legal entity accepting the contract
assignment. When the provider or legal entity accepting the contract assignment
has their contracts participating as a group, the contract will participate
with the group of the legal entity accepting the contract assignment for purposes
related to the attendant compensation rate enhancement. When the new owner
has no contracts participating, the individual or group status of participating
contracts under the old owner will transfer to the new owner.
(2)
When the contract assignment is an ownership change from
one legal entity to a different legal entity, DHS will place a vendor hold
on the payments of the existing contracted provider until DHS receives an
acceptable Attendant Compensation Report specified in subsection (h)(1)(B)
of this section and until funds identified for recoupment from subsection
(s) of this section are repaid to DHS. DHS will recoup any amount owed from
the provider's vendor payments that are being held. In cases where funds identified
for recoupment cannot be repaid by the existing contracted provider's vendor
payments that are being held, the responsible entity from subsection (cc)
of this section will be jointly and severally liable for any additional payment
due to DHS. Failure to repay the amount due within 60 days of notification
will result in placement of a vendor hold on all DHS contracts controlled
by the responsible entity and will bar the responsible entity from enacting
new contracts with DHS until repayment is made in full.
(x)
Voluntary withdrawal. Participating contracts wishing to
withdraw from the attendant compensation rate enhancement must notify DHS
in writing by certified mail. The requests will be effective the first of
the month following the receipt of the request. Contracts voluntarily withdrawing
must remain nonparticipants for the remainder of the rate year. Providers
whose contracts are participating as a group must request withdrawal of all
the contracts in the group.
(y)
Adjusting attendant compensation requirements. Providers
that determine that they will not be able to meet their attendant compensation
requirements may request to reduce their attendant compensation requirements
and associated enhancement payment to a lower participation level by submitting
a written request to DHS by certified mail. These requests will be effective
the first of the month following the receipt of the request. Providers whose
contracts are participating as a group must request the same reduction for
all of the contracts in the group.
(z)
All other rate components. All other rate components will
continue to be calculated as specified in the program-specific reimbursement
methodology and will be uniform for all providers.
(aa)
Failure to document spending. Undocumented attendant compensation
expenses will be disallowed and will not be used in the determination of the
attendant compensation spending per unit of service in subsection (s) of this
section.
(bb)
Appeals. Subject matter of informal reviews and formal
appeals is limited as per §20.110 of this title (relating to Informal
Reviews and Formal Appeals).
(cc)
Responsible entities. The contracted provider, owner,
or legal entity which received the attendant compensation rate enhancement
is responsible for the repayment of the recoupment amount.
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 August 10, 2001.
TRD-200104616
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Effective date: September 1, 2001
Proposal publication date: May 18, 2001
For further information, please call: (512) 438-3734
Chapter 144.
CONTRACT REQUIREMENTS
The Texas Commission on Alcohol and Drug Abuse adopts amendments to §§144.21,
144.325, 144.326, 144.456, 144.525, 144.532, 144.541, 144.543, and 144.552
pertaining to contract requirements, with changes to the proposed text as
published in the June 22, 2001 issue of the
Texas
Register
(26 TexReg 4664). Sections 144.108, 144.124, 144.131, 144.132,
144.321, and 144.553 are adopted without changes to the proposed text and
will not be republished.
Additionally, the Texas Commission on Alcohol and Drug Abuse adopts a new §144.542
with changes to the proposed text.
These amendments are adopted to ensure all individuals serving as qualified
credentialed counselors have knowledge of chemical dependency treatment; to
conform with new legislation regarding treatment of minors; to implement a
revised system for approving treatment providers to be paid through cost reimbursement;
to clarify existing practices; to allow providers greater flexibility in scheduling
equipment inventories; to provide the commission with more information about
significant incidents; to strengthen drug-free workplace provisions; to allow
greater flexibility in scheduling initial training; to enhance staff ability
to provide effective crisis intervention and motivate individuals for treatment;
to differentiate screening from assessment; to promote more successful placements;
to allow all treatment programs to provide specialized services to pregnant
and parenting women; to continue current provisions applicable to women and
children's residential programs; to conform with new federal regulations for
pharmacotherapy programs; to promote more successful placements for clients
completing detoxification; to avoid duplication between rules for funded providers
and rules for licensed facilities; to conform with changes being made to rules
for licensed facilities; to streamline the rules; and to provide greater clarity
regarding current policies, practices, and intent.
The following comments were received regarding §144.1-Definitions.
Comment: The definition of assets is unreasonably vague and should be deleted
or rewritten. The use of the term "young people" is inappropriate. If adopted
the definition needs to define differences between "young people" and adults
and address the different levels of learning appropriate for clients.
Response: This term is used only in describing the required content of
an assessment in youth intervention programs. Staff providing these services
receive training risk and protective factors and are familiar with the concepts
described in the definition. The language has been revised to state that assets
are critical factors for growth and development. The term young people has
been replaced with youth, which includes both children and adolescents.
Comment: Are you changing the words client and participant to "service
recipient" throughout these rules or will these terms still apply in some
instances?
Response: Client will continue to be the term used to refer to individuals
receiving chemical dependency counseling or treatment, and participant will
continue to be the term used to refer to an individual receiving substance
abuse prevention or intervention services. Service recipient is used when
the rule refers to all individuals receiving services from an organization,
whether treatment, prevention, intervention, or some other service.
Comment: Why did you delete the definition for continuum of services?
Response: It is not used in the rules.
Comment: The commission received comments on the definition of Qualified
Credentialed Counselor under Chapter 148. The definition appears in Chapter
144 as well as Chapter 148, and changes to the definition have been made in
both places in response to the public comments.
The following comments were received regarding §144.325-Complaints
and Reports.
Comments: Subsection (d) requires providers to report violence and medical
emergencies to the commission within 72 hours. Treatment programs experience
a range of incidents related to these categories. The definitions need to
be expanded to clarify expectations and avoid excessive reporting.
Response: The rule has been revised to further define incidents that must
be reported. A medical emergency must be reported when it results in admission
to the inpatient unit of a medical or psychiatric facility, and violence must
be reported when it results in injury or a police report. Language has also
been added to clarify that any incident that falls under the definitions of
abuse, neglect, or exploitation must be reported within 24 hours.
The following comments were received regarding §144.326-Staffing.
Comment: It might be simpler if the formats for both §144.326(h) and §148.203(a)
were the same since they both deal with initial training. Paragraph (7) is
different in each subsection.
Response: Licensure rules in Chapter 148 require programs to have emergency
and evacuation procedures, and the commission believes this information should
be provided to new staff during the first 30 days of employment so they are
prepared to respond to an emergency. Because prevention and intervention programs
are not required to have emergency procedures, this item is not included in
the orientation requirements under Chapter 144. Paragraph (7) in §144.326(h)
relates to individual job duties; this has been eliminated to be more consistent
with Chapter 148 requirements.
Comments: The rule increases the time frame for initial training from 7
to 30 days. Thank you for changing the requirement to 30 calendar days. This
has been very positively received.
The following comments were received regarding §144.456-Outreach,
Screening, and Referral Services.
Comments: Subsection (d) requires OSRs to provide case management and states
that placement into services shall be the criterion for determining successful
problem identification and referral. If TCADA is now defining actual placement
as the measure of a successful problem identification and referral, program
measures must be changed accordingly. Getting someone into services will happen
less frequently than a traditional referral. It also includes factors that
are beyond the OSR's control such as bed availability and certain client factors
such as the willingness and ability of the client to travel. Different areas
will also have different rates of success based on the available local resources.
These measures must be adjusted in the OSR contracts. Changes in the measures
should be flexible during the first year as the programs gain experience with
this new definition. There also has to be a realistic "case management" expectation.
OSR funding levels cannot support intensive case management services to get
all people who need help into services.
Response: The proposed language has been replaced with a requirement for
OSRs to document follow-up on each referral, including the outcome.
Comment: According to federal confidentiality guidelines CFR 42, Part 2,
a participant in our OSR services would have to give permission to the treatment
facility to release information about whether he or she was successfully admitted.
If we call the treatment facility as a follow-up, the facility would certainly
be within their rights to not release that information to us, and we cannot
force the participant to give us a release.
Response: The OSR should obtain a consent to release information from the
applicant when the referral is made and send a copy to the treatment facility.
If the referral is made by telephone, the OSR can ask the treatment provider
to obtain consent from the client. If it is not possible to document the outcome
due to lack of consent, that information can be documented in the follow-up
note.
Comment: Subsection (e) requires an OSR to ensure that a person in crisis
can speak with a trained counselor within one hour of the initial call received
during and after normal business hours. With current funding for OSR contracts,
this is not realistic I would recommend within 24 hours.
Response: In September 1999, the commission required access to a counselor
or trained volunteer within one hour. The rule was revised to require contact
with a trained counselor in September 2000, and OSRs have been operating under
the rule since that date. A person in crisis requires immediate intervention
from a skilled individual. The rule has been clarified by replacing the term
"crisis" with "medical or psychiatric emergency." A new entry has been made
to §144.21 to define psychiatric emergency.
Comment: Although this is not a new requirement for OSR, we have often
wondered how effective 24 hour on call services are. When people call in the
middle of the night, the only avenue of assistance available is the emergency
room. Treatment providers do not operate intake beyond office hours. In fact
some only admit within a limited number of hours during the weekday. The only
assistance counselors can provide is to tell them to go to the emergency room
or call back the next day.
Response: When a person is in crisis, telephone counseling can be a very
effective intervention. In some cases, the telephone intervention may be sufficient
to stabilize the person until an assessment can be scheduled. In other cases,
the intervention may be necessary to persuade the person to go the emergency
room and/or to secure assistance that might be needed.
Comments: Subsection (e) states that the required training for staff who
provide crisis intervention must include motivational interviewing and brief
interventions and therapies. Please define the amount of training expected
on these topics.
Response: The amount of training should be based on the knowledge and experience
of program staff. The goal is to help staff develop basic skills, but the
commission recognizes that this will be an ongoing process. The expectation
is that programs will provide related training at least annually.
Comment: Subsection (f) states that the screening process shall be conducted
in a confidential, face-to-face interview. Does this mean no more telephone
screenings? If so, I applaud the change.
Response: This provision applies only to screening for treatment. Initial
phases of the screening process can occur over the phone, as can other types
of problem identification and referral for individuals who are not seeking
or in need of treatment.
Comment: Some facilities do their screening over the telephone because
potential clients are coming from some distance away. If the face-to-face
requirement is in effect, it may deter people from getting into treatment.
Comment: When people call in crisis, we refer them to treatment immediately
by giving them the number of the treatment center. We ask all the questions
that we ask at a face-to-face interview, but under the proposed rule we cannot
count it as a screening. We should be able to count screenings conducted by
telephone.
Response: The language has been revised to permit an OSR to conduct screening
over the telephone when necessary and appropriate. However, the receiving
treatment facility must have a QCC examine the individual in person before
authorizing admission.
Comment: Subsection (f)(3) states: "The specific procedures and instruments
used during the screening process will depend on the characteristics of the
individual being screened. The program may administer all or part of an assessment
instrument as need to make an appropriate referral." This is still somewhat
vague. I would recommend that TCADA establish one or several screening tools
that must be utilized for this service.
Response: There are a variety of standard, validated screening and assessment
tools, and providers are free to choose the ones that work best for them.
As noted in the rule, the depth and scope of the screening process needed
to make an appropriate referral will vary from one individual to the next.
In some cases, a fairly simple screening may yield sufficient information
to make a referral. In others, a more comprehensive process may be necessary.
TCADA is in the process of implementing the Behavioral Health Integrated Provider
System, which includes screening and assessment instruments. These instruments
can be used flexibly based on individual circumstances. Over the next year,
all treatment and OSR programs will be given access to this system.
Comment: Subsection (f)(5) includes the term "OSAR." I think you meant
OSR.
Response: That is correct. The reference has been revised.
Comment: Subsection (g) rules states that OSRs may provide motivational
interviewing and brief interventions and therapies to motivate and prepare
individuals for treatment or self-directed change when treatment is not indicated.
Does that mean this service is this an option?
Response: As noted above, the commission is requiring all individuals who
perform crisis intervention to receive training in these techniques so they
can be used appropriately during crisis intervention. At the present time
OSRs are not mandated to provide these services in non-crisis situations to
prepare individuals for treatment or self-directed change. The commission
does, however, encourage OSRs to provide motivational interviewing and brief
interventions and therapies to improve referral outcomes and meet the need
for adult intervention services.
Comment: Subsection (l) states that OSRs may operate separate prevention,
intervention, and treatment programs if the services are not provided with
resources allocated to the OSR function. What do you mean by "resources allocated
to the OSR function?"
Response: Resources allocated to the OSR function are reflected in the
OSR program budget approved by TCADA. A single individual may work in both
the OSR program and in a separate TCADA-funded program, but the person's time
must be properly allocated between the two programs.
The following comments were received regarding §144.525-Admission
Determination.
Comment: Subsection (g) states that a program shall not deny admission
if the applicant is seeking admission to a detoxification program and is in
need of detoxification. If we do not have a detoxification program, how can
we admit? Certainly, we would try to find a detox program and make referral,
but we would not admit the client until after he completes detox.
Response: Wording has been revised to clarify that this requirement only
applies to detoxification programs.
The following comments were received regarding §144.532(h)-Core Program
Requirements.
Comments: Subsection (h) states that adult treatment programs must provide
specialized services to pregnant women, women with dependent children, and
women who are seeking to regain custody of their children directly or through
collaborative agreements with other service providers. These services include
primary medical and prenatal care, gender-specific substance abuse treatment,
primary pediatric care, therapeutic and other structured interventions for
the children, case management, and transportation services. Many of these
services would be beneficial to the female client and her children. However,
requirements for additional services continue to be added without additional
dollars for the service providers. We do not have enough staff to provide
gender-specific groups, transportation, and the other required services and
cannot afford to hire more. We might be able to set up appointments for the
women to access medical and pediatric care and other services, but who will
pay for these services? Most of these services are provided through city health
departments but most of them charge minimum fees for those services as well.
Adding these requirements to general adult programs without additional funding
is out of the question given the complexity of the requirements and the mandated
case management services, which are not reimbursable under the current funding
structure. These services should be provided through existing specialized
female programs.
Response: The rule has been revised to make provision of specialized female
services optional in adult treatment programs that are not specifically contracted
to provide specialized female services. When the program provides the listed
services to an eligible woman, the service will be billed to TCADA as a specialized
female service and reimbursed at the corresponding rate.
The following comments were received regarding §144.541-Specialized
Female Services.
Comment: Subsection (d) requires regular documented contacts with other
agencies such as ECI, TANF, etc. There is a limit to collaboration. Regular
contact implies time taken from busy schedules. I am not sure how regular
contact is defined by TCADA. If it is telephone calls, it might be easier.
We have spent a great deal of time in such efforts, but the agencies we contact
are often not responsive. Added to the difficulties are the limits imposed
by the TDI admission criteria. If an agency does refer a client and there
is little evidence of excessive use to document, we have lost the referral
source. Some of the agencies have their own contracts for substance abuse
treatment services with providers and will not send clients to TCADA-funded
services. Leadership at TCADA should negotiate with other agencies to ensure
that these populations are aware of the local TCADA services.
Response: The commission recognizes that referral resources may not respond
to a provider's outreach efforts. However, personnel and circumstances change,
and over time persistent efforts are often successful in generating referrals.
Even agencies with separate contracts for substance abuse services may use
TCADA-funded programs when their contractors have insufficient capacity. Face-to-face
meetings are important when establishing relationships and can be used to
explain that some individuals referred for treatment may not be admitted because
of diagnostic and financial eligibility criteria. Contacts can be made by
telephone as well as in person and do not need to be excessively time-consuming.
Treatment for pregnant women and women with dependent children is a top priority,
and the commission will continue to require regular, documented contacts with
key referral sources.
The following comments were received regarding §144.542-Additional
Requirements for Women and Children's Residential Programs.
The commission received public comment on rules published in Chapter 148
regarding criteria for accepting health assessments performed prior to admission
to treatment. In response to the comment, the commission revised the rule
to allow providers to accept a health assessment completed up to 30 days prior
to admission. A parallel change has been made in this section.
The following comments were received regarding §144.543-Pharmacotherapy
Services.
Comment: Subsection (a) references the Food and Drug Administration. Are
the rules issued by that agency?
Response: The rules are actually issued by the Health and Human Services
Department, and the rule has been revised accordingly.
The following comments were received regarding §144.552-Select Performance
Measure Definitions.
Comment: Subsection (c) changes the definition for detox referral rate,
making placement the criterion for a completed referral. If TCADA is now defining
actual placement as the measure of referral, program measures must be changed
accordingly. Getting someone into treatment will happen less frequently than
a traditional referral. It also includes factors that are beyond the program's
control such as bed availability and certain client factors such as the willingness
and ability of the client to travel. Different areas will also have different
rates of success based on the available local resources. These measures must
be adjusted in the detox contracts. Changes in the measures should be flexible
during the first year as the programs gain experience with this new definition.
Response: The proposed language has been replaced with a requirement for
detox programs to document follow-up on each referral, including the outcome.
The following comments were received regarding §144.553-Documentation.
Comment: Subsection (d) requires the person conducting follow-up to record
the name of the person from whom information is received and the person's
relationship to the client. We are recording information in the client record
from a person who may not want to be identified as reporting the information.
The record is potentially wide open for the client to view.
Response: When a program is not able to contact the client directly for
follow-up information, the program may obtain the information from someone
who has knowledge of the client's status, but only with the client's consent.
Subchapter A. GENERAL PROVISIONS
40 TAC §144.21
These amendments are adopted under the Texas Health and Safety
Code, §461.012(a)(15) which provides the Texas Commission on Alcohol
and Drug Abuse with the authority to adopt rules governing the functions of
the commission, including rules that prescribe the policies and procedures
followed by the commission when funding services and §461.0141 which
provides the commission with authority to adopt rules regarding purchase of
services.
The code affected by the adopted amendments is the Texas Health and Safety
Code, Chapter 461.
§144.21.Definitions.
The following words and terms, when used in this chapter, shall have
the following meanings, unless the context clearly indicates otherwise.
(1)
Abuse--An intentional, knowing, or reckless act or omission
by an employee, volunteer, or other individual working under the auspices
of a provider that causes or may cause death, emotional harm or physical injury
to a service recipient. Abuse includes:
(A)
any sexual activity between provider personnel and a service
recipient;
(B)
corporal punishment;
(C)
nutritional or sleep deprivation;
(D)
efforts to cause fear;
(E)
the use of any form of communication to threaten, curse,
shame, or degrade a service recipient;
(F)
restraint that does not conform with chapter 148 of this
title (relating to Facility Licensure);
(G)
coercive or restrictive actions taken in response to the
service recipient's request for discharge or refusal of medication or treatment
that are illegal or not justified by the service recipient's condition; and
(H)
any other act or omission classified as abuse by the Texas
Family Code, §261.001.
(2)
Adolescent--An individual 13 through 17 years of age whose
disabilities of minority have not been removed by marriage or judicial decree.
(3)
Adult--An individual 18 years of age or older, or an individual
under the age of 18 whose disabilities of minority have been removed by marriage
or judicial decree.
(4)
Aftercare--Structured services provided after a client
completes treatment which are designed to strengthen and support the client's
recovery and prevent relapse.
(5)
Alternatives--A strategy that gives participants and their
families the opportunity to take part in educational, cultural, recreational,
and work-oriented substance-free activities. Activities under this strategy
are designed to encourage and foster bonding with peers, family and community.
(6)
Approve--Authorize in writing.
(7)
Assessment--An ongoing process through which the counselor
or prevention specialist collaborates with the service recipient and others
to gather and interpret information necessary for developing and revising
a treatment or service plan and evaluating the service recipient's progress
toward achievement of goals, including identification of the individual's
strengths and weaknesses (or risk and protective factors) and problems/needs.
Assessments in treatment and HIV Early Intervention programs must be conducted
by a counselor, but an appropriately trained prevention specialist may conduct
assessments in a youth intervention program.
(8)
Assets (individual)--External and internal factors critical
for a youth's growth and development. External assets include support, empowerment,
boundaries and expectations, and constructive use of time. Internal assets
include commitment to learning, positive values, social competencies, and
positive identity.
(9)
ATOD--Alcohol, tobacco and other drugs.
(10)
Brief interventions--Short-term practices designed to
investigate a potential problem and motivate an individual to begin to do
something about his or her substance abuse, either by natural, client-directed
means or by seeking additional treatment. Brief interventions are described
in "Brief Interventions and Brief Therapies for Substance Abuse" (Treatment
Improvement Protocol 34), published by the Center for Substance Abuse Treatment.
(11)
Brief therapy--A systematic, focused process that relies
on assessment, client engagement, and rapid implementation of change strategies.
Brief therapies are described in "Brief Interventions and Brief Therapies
for Substance Abuse" (Treatment Improvement Protocol 34), published by the
Center for Substance Abuse Treatment.
(12)
Case management--A systematic process to ensure clients
receive all substance abuse, physical health, mental health, social, and other
services needed to resolve identified problems and needs. Case management
activities are provided by an accountable staff person and include:
(A)
linking a client with needed services;
(B)
helping a client develop skills to use basic community
resources and services; and
(C)
coordinating services for a client through communication
and monitoring.
(13)
Chemical dependency--Substance dependence or substance
abuse as defined in the current edition of the Diagnostic and Statistical
Manual of Mental Disorders.
(14)
Chemical dependency counseling--A collaborative process
between a counselor and one or more individuals who have been diagnosed with
a substance use disorder, conducted face-to-face, that facilitates client
progress toward mutually determined treatment goals and objectives.
(15)
Child--An individual under the age of 13.
(16)
Client--An individual who has been admitted to a chemical
dependency treatment facility licensed or funded by the commission and is
currently receiving services.
(17)
Client Data Systems (CDS) Forms--CDS forms include the
Admission Report, Discharge Report, Follow-up Report, and CDS Facility Summary.
(18)
Cognizant agency--The federal or state agency responsible
for reviewing, negotiating, and approving an organization's indirect cost
rate. TCADA has not been designated as a cognizant agency.
(19)
Commission--The Texas Commission on Alcohol and Drug Abuse.
(20)
Community-based process--A strategy designed to enhance
the ability of the community to provide effective prevention, intervention,
and treatment services for ATOD problems and HIV infection through community
mobilization and empowerment. Activities include multi-agency coordination
and collaboration, networking, and development of written agreements among
community organizations.
(21)
Consenter--The individual legally responsible for giving
informed consent for a client. Unless otherwise provided by law, a legally
competent adult is his or her own consenter and the consenter for an adolescent
or child is the parent, guardian, or conservator.
(22)
Cost Reimbursement--A payment mechanism that provides
reimbursement, at actual cost, to the contractor for performing at a certain
level of effort regardless of the level of output achieved.
(23)
Counseling--A collaborative process conducted face-to-face
that facilitates an individual's progress toward mutually determined treatment
goals and objectives.
(24)
Counselor--A qualified credentialed counselor, counselor
intern, or graduate.
(25)
Counselor intern (CI)--A person registered with the commission
who is pursuing a course of training in chemical dependency counseling at
an approved clinical training institution or a person enrolled at an accredited
institution of higher education completing an internship at a treatment program
as part of a degree or certificate program in chemical dependency counseling.
(26)
Crisis intervention--Services designed to intervene in
situations which may or may not involve alcohol and drug abuse, and which
may escalate and result in a crisis if immediate attention is not provided.
Services include face-to-face individual, family, or group interviews/interactions
and/or telephone contacts to identify needs.
(27)
Cultural competency training--Training to improve an individual's
ability to understand and interact with persons of different cultures. Culture
defines the lifestyle of a distinct population and includes values, behavioral
norms, and patterns of interpersonal relationships. It may be based on race,
ethnicity, religion, age, gender, sexual orientation, or disability.
(28)
Discharge--Formal, documented termination from a treatment
facility. Discharge occurs when a client successfully completes treatment
goals, is transferred to another facility, leaves against professional advice,
or is terminated for other reasons.
(29)
Documentation--A written and/or electronic record that
includes a date and a written or digital signature and provides authenticated
evidence to substantiate compliance with standards, such as minutes of meetings,
memoranda, schedules, notices, logs, records, policies, procedures, and announcements.
(30)
DSM-IV--The Diagnostic and Statistical Manual of Mental
Disorders, Fourth Edition-Text Revision, published by the American Psychiatric
Association. Any reference to DSM-IV is understood to mean the most recent
edition of the Diagnostic and Statistical Manual of Mental Disorders.
(31)
Ensure--To take all reasonable and necessary steps to
achieve results.
(32)
Environmental and social policy--A strategy designed to
establish or change written and unwritten community standards, codes, and
attitudes, thereby influencing incidence and prevalence of substance abuse
in the general population. It includes activities that center on legal and
regulatory initiatives and those that relate to the service and action-oriented
initiatives.
(33)
Evaluation (program)--A formal process for collecting,
analyzing, and interpreting information about a program's implementation and
effectiveness.
(34)
Exploitation--The illegal or improper use of a service
recipient or a service recipient's resources for monetary or personal benefit,
profit, or gain by an employee, volunteer, or other individual working under
the auspices of a provider.
(35)
Facility--A legal entity that provides one or more chemical
dependency treatment programs.
(36)
Family--The children, parents, brothers, sisters, other
relatives, foster parents, guardians, and/or significant others who perform
the roles and functions of family members in the lives of service recipients.
(37)
Graduate--An individual who has successfully completed
the 270 hours of education, 300 hour practicum, and 4,000 hours of supervised
work experience but has neither received a license nor failed the examination
the maximum number of times allowed by law.
(38)
HIV--Human Immunodeficiency Virus, the virus that causes
Acquired Immune Deficiency Syndrome (AIDS). Infection is determined through
a testing and counseling process overseen by the Texas Department of Health.
Being infected with HIV is not necessarily equated with having a diagnosis
of AIDS, which can only be diagnosed by a physician using criteria established
by the National Centers for Disease Control and Prevention.
(39)
HIV Antibody Counseling and Testing--A structured counseling
session performed by Prevention Counseling and Partner Elicitation (PCPE)
counselors registered with the Texas Department of Health (TDH). It promotes
risk reduction behavior for those at risk of infection with HIV and other
sexually transmitted diseases and offers testing for HIV infection.
(40)
Indicated program--An intervention program designed to
prevent the onset of substance abuse in individuals who are showing early
warning signs of substance abuse such as failing grades, dropping out of school,
and/or use of alcohol and other gateway drugs.
(41)
Information dissemination--A strategy that provides awareness
and knowledge of ATOD problems and/or HIV infection and their harmful effects
on individuals, families, and communities. It also gives the general population
information about available programs and services. Information dissemination
is characterized by one-way communication from the source to the audience,
with limited contact between the two. Information is disseminated through
written communications and/or in-person community presentations.
(42)
Intervention--A process that utilizes multiple strategies
designed to prevent or interrupt the use of alcohol, tobacco and other drugs
by youth who are showing early warning signs of substance use or abuse and/or
exhibiting other high risk problem behaviors, and to break the cycle of harmful
use of legal substances and all use of illegal substances by adults in order
to halt the progression and escalation of use, abuse, and related problems.
Intervention strategies target indicated populations.
(43)
Intervention counseling--Face-to-face interactions to
assist individuals, families, and groups to identify, understand, and resolve
issues and problems related to ATOD use within a specific number of sessions
or within a certain time frame. It is intended to intervene in problem situations
and high-risk behaviors, which, if not addressed, may escalate to substance
abuse or cause communicable disease.
(44)
Key performance measures--Measures that reflect the services
that are critical to the program design and intended outcomes of the program.
Key performance measures are specified for all commission-funded programs.
(45)
Life skills training (treatment)--A structured program
of training, based upon a written curriculum and provided by counselors, designed
to help clients with communication and social interaction, stress management,
problem solving, decision making, and management of daily responsibilities.
(46)
Motivational interviewing--A therapeutic style intended
to help counselors work with clients to address their ambivalence and enhance
motivation for positive change. Motivational interviewing is described in
"Enhancing Motivation for Change in Substance Abuse Treatment" (Treatment
Improvement Protocol 35), published by the Center for Substance Abuse Treatment.
(47)
Neglect--A negligent act or omission by an employee, volunteer,
or other individual working under the auspices of a provider, that causes
or may cause death, substantial emotional harm or physical injury to a service
recipient. Examples of neglect include, but are not limited to, failure to
provide adequate nutrition, clothing, or health care; failure to provide a
safe environment free from abuse; failure to maintain adequate numbers of
appropriately trained staff; failure to establish or carry out an appropriate
individualized treatment plan; and any other act or omission classified as
neglect by the Texas Family Code, §261.001.
(48)
OMB--United States Office of Management and Budget.
(49)
Outcome--The impact on the system or service recipient.
(50)
Outreach--Activities directed toward finding individuals
who might not use services due to lack of awareness or active avoidance, and
who would otherwise be ignored or underserved.
(51)
Participant--An individual who is receiving prevention
or intervention services.
(52)
Prevention--A process that utilizes multiple strategies
designed to preclude the onset of the use of alcohol, tobacco and other drugs
by youth. Prevention principles and strategies foster the development of social
and physical environments that facilitate healthy, drug-free lifestyles. Prevention
strategies target universal and selective populations.
(53)
Prevention education and skills training--A curriculum-based
strategy designed to develop decision-making, problem solving, and other life
skills. It also provides accurate information about the harmful effects of
ATOD use, abuse and addiction pertinent to the needs of the target population.
The basis of activities under this strategy is interaction between the educator/facilitator
and the participants. These activities are aimed to increase protective factors,
foster resiliency, decrease risk factors and affect critical life and social
skills relative to substance abuse and/or HIV risk of the participant and/or
family members.
(54)
Primary population--The individuals directly targeted
to participate in and benefit from the program.
(55)
Problem identification and referral--A strategy that provides
services designed to ensure access to appropriate levels and types of services
needed by youth or adult participants.
(56)
Program--A specific type of service delivered to a specific
population, at a specific location.
(57)
Protective factors--Characteristics within individuals
and social systems which may inoculate or protect persons against risk factors
and strengthen their determination to reject or avoid substance abuse.
(58)
Provider--A distinct legal entity with an administrative
and functional structure organized to deliver substance abuse services.
(59)
Psychiatric emergency--A condition that requires immediate
intervention and/or medical attention to prevent an individual from presenting
an immediate danger to self or others, or which causes the individual to be
incapable of controlling, knowing, or understanding the consequences of his
or her actions.
(60)
Qualified credentialed counselor (QCC)--A licensed chemical
dependency counselor or one of the professionals listed below who is licensed
and in good standing in the state of Texas and has at least 1000 hours of
documented experience working with individuals who have substance use disorders:
(A)
licensed professional counselor (LPC);
(B)
licensed master social worker (LMSW);
(C)
licensed marriage and family therapist (LMFT);
(D)
licensed psychologist;
(E)
licensed physician;
(F)
certified addictions registered nurse (CARN); and
(G)
advanced practice nurse recognized by the Board of Nurse
Examiners as a clinical nurse specialist or nurse practitioner with a specialty
in psyche-mental health (APN-P/MH).
(61)
Referral--The process of identifying appropriate services
and providing the information and assistance needed to access them.
(62)
Retaliate--Take adverse action to punish or discourage
a person who reports a violation or cooperates with an investigation, inspection,
or proceeding. Such actions include but are not limited to suspension or termination
of employment, demotion, discharge, transfer, discipline, restriction of privileges,
harassment, and discrimination.
(63)
Risk factor--A characteristic or attribute of an individual,
group, or environment associated with an increased probability of certain
disorders, addictive diseases, or behaviors.
(64)
Screening--The process through which the counselor, service
recipient, and available significant others determine the most appropriate
initial course of action, given the individual's needs and characteristics
and the available resources within the community. In a treatment program,
screening includes determining whether an individual is appropriate and eligible
for admission to a particular program.
(65)
Secondary population--Family members and other individuals
targeted to receive ancillary services because of their relationship to the
service recipient.
(66)
Selective program--A prevention program designed to target
subsets of the total population that are deemed to be at higher risk for substance
abuse by virtue of membership in a particular population segment. Risk groups
may be identified on the basis of biological, psychological, social or environmental
risk factors, and targeted groups may be defined by age, gender, family history,
place of residence, or victimization by physical and/or sexual abuse. Selective
prevention programs target the entire subgroup regardless of the degree of
individual risk.
(67)
Staff--Individuals working for the provider in exchange
for money or other compensation.
(68)
STDs--Sexually transmitted diseases.
(69)
Substance abuse--The use of one or more drugs, including
alcohol, which significantly and negatively impacts one or more major areas
of life functioning.
(70)
TCADA--Texas Commission on Alcohol and Drug Abuse.
(71)
Treatment (chemical dependency)--A planned, structured,
and organized program designed to initiate and promote a person's chemical-free
status or to maintain the person free of illegal drugs. It includes, but is
not limited to, the application of planned procedures to identify and change
patterns of behavior related to or resulting from chemical dependency that
are maladaptive, destructive, or injurious to health, or to restore appropriate
levels of physical, psychological, or social functioning lost due to chemical
dependency.
(72)
Unethical conduct--Conduct prohibited by the ethical standards
adopted by state or national professional organizations or by rules established
by a profession's state licensing agency.
(73)
Unprofessional conduct--An act of omission that violates
commonly accepted standards of behavior for individuals or organizations.
(74)
Unit rate--A payment mechanism in which a specified rate
of payment is made in exchange for a specified unit of services.
(75)
Universal program--A prevention program designed to address
an entire population with messages and programs aimed at preventing or delaying
the use and abuse of alcohol, tobacco, and other drugs. Universal prevention
programs are delivered to large groups without any prior screening for substance
abuse risk.
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 August 6, 2001.
TRD-200104483
Karen Pettigrew
General Counsel
Texas Commission on Alcohol and Drug Abuse
Effective date: September 1, 2001
Proposal publication date: June 22, 2001
For further information, please call: (512) 349-6607
40 TAC §§144.108, 144.124, 144.131, 144.132
These amendments are adopted under the Texas Health and Safety
Code, §461.012(a)(15) which provides the Texas Commission on Alcohol
and Drug Abuse with the authority to adopt rules governing the functions of
the commission, including rules that prescribe the policies and procedures
followed by the commission when funding services and §461.0141 which
provides the commission with authority to adopt rules regarding purchase of
services.
The code affected by the adopted amendments is the Texas Health and Safety
Code, Chapter 461.
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 August 6, 2001.
TRD-200104484
Karen Pettigrew
General Counsel
Texas Commission on Alcohol and Drug Abuse
Effective date: September 1, 2001
Proposal publication date: June 22, 2001
For further information, please call: (512) 349-6607
40 TAC §§144.321, 144.325, 144.326
These amendments are adopted under the Texas Health and Safety
Code, §461.012(a)(15) which provides the Texas Commission on Alcohol
and Drug Abuse with the authority to adopt rules governing the functions of
the commission, including rules that prescribe the policies and procedures
followed by the commission when funding services and §461.0141 which
provides the commission with authority to adopt rules regarding purchase of
services.
The code affected by the adopted amendments is the Texas Health and Safety
Code, Chapter 461.
§144.325.Complaints and Reports.
(a)
Providers shall have written policy and procedures for
handling complaints from clients, participants, and their families.
(b)
The provider shall display a sign informing the public
of the policy and procedures on complaints. The sign shall be prominently
displayed at all times and shall provide notice of the commission's investigations
division and its current mailing address and toll-free phone number.
(c)
The provider shall verbally report all allegations of participant
or client abuse, neglect, and exploitation to the commission's investigations
division at (800) 832-9623 within 24 hours, and submit documentation within
two working days. The provider shall investigate the allegation, take appropriate
action, and maintain documentation of the investigation and resulting actions.
(d)
The chief executive officer or designee shall report the
following incidents to the commission's investigations division at (800) 832-9623
within 72 hours of discovery. Any incident within these categories that meets
the definition of abuse, neglect, or exploitation must be reported within
24 hours as described in subsection (c) of this section.
(1)
all fires;
(2)
substantial disruption of program operation;
(3)
death of an active client/participant (on or off the program
site);
(4)
suicide attempt by an active client or participant (on
or off the program site);
(5)
medical and psychiatric emergencies that result in admission
to the inpatient unit of a medical or psychiatric facility;
(6)
violent behavior on the program site that results in injury
or a police report;
(7)
illegal, unethical, or unprofessional conduct; and
(8)
legal, regulatory, or contractual action taken against
the program.
(e)
The provider shall not retaliate against anyone who reports
a violation or cooperates during an investigation or related activity.
§144.326.Staffing.
(a)
The provider shall have an adequate number of qualified
staff to comply with commission rules, provide the services described in the
program description, and protect the health, safety, and welfare of clients/participants.
(b)
Every program shall have an employee designated to serve
as director. The individual must have appropriate education and training and
at least two years of experience providing related services.
(1)
The director of a prevention program must have at least
two years of experience in substance abuse prevention, and the director of
an intervention program must have at least two years experience in intervention.
At least one year of experience must be specific to the program's target population.
(2)
The director of a treatment program must be a QCC with
at least two years of post-licensure experience providing treatment, with
at least one year of experience providing services to the program's target
population (adult, adolescent, or specialized female).
(3)
The program director shall spend and document sufficient
time at the program site to provide appropriate oversight and supervision.
(c)
The program shall hire applicants who meet the minimum
qualifications listed in the job description. The application or resume shall
document required education, training, and related work experience.
(d)
The program shall develop and implement written procedures
for reviewing the background and suitability of any employee with access to
the program's clients/participants or funds. The review shall be appropriate
for each person's level of access and shall adequately protect the program's
clients/participants and financial resources.
(e)
The program shall obtain the results of a statewide criminal
background check from the Department of Public Safety on all staff. The program
shall use the criteria listed in the Texas Occupations Code, §53.022
and §53.023 to evaluate criminal history reports and make related employment
decisions.
(f)
The program shall require all prospective staff to pass
a pre-employment drug test that meets criteria established by the commission.
(g)
The facility shall ensure that staff are adequately trained
and competent to perform job duties
(h)
All staff shall complete initial training during the first
30 calendar days of employment. The initial training shall be documented and
shall include, as applicable:
(1)
client/participant rights;
(2)
client/participant complaint procedures;
(3)
confidentiality of client/participant-identifying information;
(4)
client/participant abuse, neglect, and exploitation;
(5)
requirements for reporting abuse, neglect, and exploitation;
and
(6)
standards of conduct;
(i)
The program shall establish an annual staff training plan
for employees based on the program design and identified staff needs. The
plan must include annual training for all employees on:
(1)
cultural competency; and
(2)
standards of conduct.
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 August 6, 2001.
TRD-200104485
Karen Pettigrew
General Counsel
Texas Commission on Alcohol and Drug Abuse
Effective date: September 1, 2001
Proposal publication date: June 22, 2001
For further information, please call: (512) 349-6607
40 TAC §144.456
These amendments are adopted under the Texas Health and Safety
Code, §461.012(a)(15) which provides the Texas Commission on Alcohol
and Drug Abuse with the authority to adopt rules governing the functions of
the commission, including rules that prescribe the policies and procedures
followed by the commission when funding services and §461.0141 which
provides the commission with authority to adopt rules regarding purchase of
services.
The code affected by the adopted amendments is the Texas Health and Safety
Code, Chapter 461.
§144.456.Outreach, Screening, and Referral Services.
(a)
Outreach, Screening,and Referral (OSR) service providers
are community-based organizations that provide alcohol, tobacco and other
drug prevention and intervention services to the community at large in their
identified catchment area. OSR service providers conduct a variety of services
aimed to reduce use and abuse of ATOD in the targeted community.
(b)
OSR services programs shall offer universal, selective
and indicated strategies to individuals, families, and communities within
the service area defined in the contract.
(c)
Information dissemination shall be provided for the purposes
of education and awareness in the community. Information dissemination shall
be focused on increasing access to services for the community, including the
commission's priority populations described in §144.522 of this title
(relating to Priority Populations), and ensuring the community is aware of
the nature, location, and availability of commission-funded services.
(d)
Problem identification and referral shall be provided for
the purpose of the identification of appropriate service needs through screening,
referral, placement and follow-up. Problem identification and referral shall
include documented follow-up that identifies the result of the referral, including
when and where the person seeking services is admitted, if applicable.
(e)
Crisis intervention services shall be provided for the
purpose of responding to individuals and/or families in need of immediate
services.
(1)
Crisis intervention may be a single contact or a short
series of contacts.
(2)
The program shall develop written policies and procedures
for crisis intervention services during and after normal business hours.
(3)
Crisis intervention must be provided by a QCC, graduate,
or counselor intern working under direct supervision.
(4)
The program shall establish an avenue for a person experiencing
a medical or psychiatric emergency to speak with a trained counselor within
one hour of the initial call during and after normal business hours.
(5)
The program shall provide training annually on crisis telephone
call policies and procedures for all employees who answer (or may answer)
the telephone during or after normal business hours. Training must include
crisis intervention techniques and available community resources. Training
for staff who provide crisis intervention shall also include motivational
interviewing and brief interventions and therapies.
(f)
The program shall provide screening and referral for individuals
needing and/or seeking treatment services.
(1)
The screening process shall be conducted in a confidential,
face-to-face interview whenever possible. If logistics or emergency circumstances
prevent an in-person interview, the screening process may be conducted by
telephone.
(2)
The screening process shall be conducted by qualified credentialed
counselors (QCCs), graduates, or counselor interns working under direct supervision.
(3)
The depth and scope of the screening process shall be sufficient
to determine the individual's needs and make an appropriate referral, if needed.
The specific instruments and procedures used during the screening process
will depend on the characteristics of the individual being screened. The program
may administer all or part of an assessment instrument as needed to make an
appropriate referral. Tools used during the screening process, including assessment
instruments, shall be age-appropriate.
(4)
If an individual meets the DSM-IV criteria for substance
abuse or dependence, the program shall refer the individual for appropriate
treatment services. With written consent, the program shall forward a copy
of the information obtained during the screening process to the treatment
provider. Screening and referral shall include documented follow-up that identifies
the result of the referral, including when and where the person seeking treatment
is admitted, if applicable.
(5)
The OSR shall maintain written agreements with treatment
providers outlining how individuals who go through the screening process are
admitted to treatment.
(6)
Documentation shall include:
(A)
date of screening;
(B)
zip code of the individual screened;
(C)
demographics of the individual screened;
(D)
the completed instruments used during the screening, including
a diagnostic impression based on DSM-IV criteria;
(E)
referrals made, including when and where the service recipient
is admitted to services; and
(F)
all follow-up contacts.
(g)
The program may provide motivational interviewing and brief
interventions and therapies to motivate and prepare individuals for treatment
or self-directed change in behavior when treatment is not indicated.
(h)
Minors and tobacco activities shall be provided for the
purpose of reducing minors' access to tobacco products throughout the catchment
area served. The OSR shall submit a quarterly narrative report on minors and
tobacco activities, including:
(1)
tobacco retailer education;
(2)
tobacco information and education;
(3)
media awareness; and
(4)
tobacco coalition and community involvement.
(i)
The program shall maintain a resource manual or file that
contains current information about local referral resources, including location
and contact information, services offered, and eligibility criteria. At a
minimum, the resource manual or file shall include information about all prevention,
intervention, and treatment programs in the OSR's catchment area.
(j)
The program shall develop and implement written procedures
to identify and provide appropriate referrals for individuals exhibiting conditions
or behavior that may suggest unmet mental health needs. The program shall
also provide at least three hours of annual training on mental health diagnoses
to all staff members who conduct screenings or provide problem identification
and referral.
(k)
OSR programs shall work with other organizations in the
area to coordinate substance abuse and other services for the individual and/or
family.
(l)
OSR providers may operate separate prevention, intervention,
and/or treatment programs to meet the needs of the community. These services
may not, however, be provided with resources allocated to the OSR function.
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 August 6, 2001.
TRD-200104486
Karen Pettigrew
General Counsel
Texas Commission on Alcohol and Drug Abuse
Effective date: September 1, 2001
Proposal publication date: June 22, 2001
For further information, please call: (512) 349-6607
40 TAC §§144.525, 144.532, 144.541 - 144.543, 144.552, 144.553
These amendments and new section are adopted under the Texas
Health and Safety Code, §461.012(a)(15) which provides the Texas Commission
on Alcohol and Drug Abuse with the authority to adopt rules governing the
functions of the commission, including rules that prescribe the policies and
procedures followed by the commission when funding services and §461.0141
which provides the commission with authority to adopt rules regarding purchase
of services.
The code affected by the adopted amendments and new section is the Texas
Health and Safety Code, Chapter 461.
§144.525.Admission Determination and Placement.
(a)
For every applicant admitted to treatment, the client record
must include documentation signed by the authorizing professional showing
that the individual met all applicable admission criteria, including the DSM-IV
diagnostic criteria.
(1)
All admissions to Level II, III or IV treatment must be
authorized or denied by a QCC.
(2)
All admissions to Level I treatment must be authorized
by a physician, physician assistant, advanced nurse practitioner, or registered
nurse. Each admission authorization must be verified and co-signed by a physician
within 72 hours. If the physician determines an admission was not appropriate,
the client shall be transferred to an appropriate service provider.
(3)
When an applicant is denied admission, the program shall
maintain documentation signed by the professional who examined the applicant
explaining why the admission was denied.
(b)
The admission determination shall include an evaluation
based on Texas Department of Insurance (TDI) admission criteria (as interpreted
in subsection (c) of this section) to determine the appropriate level of service.
The provider shall match individual applicant needs with appropriate treatment
intensity and setting.
(1)
If the provider does not offer a program appropriate for
the applicant as determined by the TDI criteria, the provider shall refer
the applicant to a provider that does offer the needed service.
(2)
If an appropriate provider is not accessible to the applicant,
the provider shall arrange for treatment (through admission or referral) in
a program with the most appropriate level of care accessible to the applicant.
(3)
If the applicant is placed on a waiting list, the provider
may admit the client to a less intensive program on an interim basis.
(4)
The client record shall contain documentation demonstrating
that the client met the TDI admission criteria or justifying the reason for
admission if the criteria were not met.
(c)
The commission has interpreted the TDI admission criteria
to apply them to the commission's priority populations. Any revisions adopted
by the Texas Department of Insurance supercede the admission criteria listed
in this section. For pregnant women and/or women with children under their
care, a DSM-IV diagnosis of Substance Dependence or Substance Abuse shall
suffice for admission to a residential treatment program.
(d)
As part of the admission determination, the program shall
assess each applicant's risk for HIV infection, tuberculosis, and other sexually
transmitted diseases. Risk assessments shall follow guidelines described in
the commission's Workplace and Education Guidelines for HIV and Other Communicable
Diseases.
(e)
The program's admission criteria shall not exclude members
of the commission's priority populations defined in §144.522 of this
title (relating to Priority Populations).
(f)
The program's admission criteria shall not automatically
exclude individuals based on:
(1)
physical or mental health history;
(2)
current physical or mental health diagnoses or services;
(3)
past or present prescription medications;
(4)
assumptions of ability to benefit from treatment without
documented current behavioral evidence;
(5)
drugs being abused;
(6)
ability to read and write; or
(7)
pregnancy.
(g)
The program shall not automatically deny admission to a
previous client based on prior treatment. If the applicant has been admitted
to the facility three or more times in the past 12 months, the program may
consider this information (including circumstances of prior discharges) in
determining whether to admit the applicant. The program shall not deny admission
based on prior treatment if the applicant has only one or two prior admissions.
A detoxification program shall not deny admission to a previous client based
on prior treatment regardless of the number of prior admissions to the facility
if the applicant is in need of detoxification.
(h)
The program shall not automatically deny admission based
on a perceived threat of harm to self or others. The program shall have a
policy and procedures for assessment of potential harm to self or others.
If the program determines that an individual is a current risk to self or
others, the program may require an evaluation from a qualified mental health
provider prior to admission.
(i)
The program shall not require a period of abstinence prior
to admission or require treatment clients to complete detoxification unless
the client meets TDI admission criteria for detoxification services.
(j)
All treatment programs shall develop and implement written
procedures to identify clients exhibiting conditions or behavior that may
suggest unmet mental health needs. The program shall collaborate with and
provide referrals to available resources (including qualified and credentialed
mental health professionals) to address the client's mental health needs.
(k)
The program shall provide appropriate referrals for all
persons who are denied treatment. Documentation shall include:
(1)
date(s) of application and denial;
(2)
identifying information;
(3)
the reason the person was denied admission; and
(4)
organizations to which the client was referred.
§144.532.Core Program Requirements.
(a)
All treatment programs shall comply with applicable chemical
dependency treatment facility licensure requirements for the specified level
of service established in Chapter 148 of this title (relating to Facility
Licensure).
(b)
All programs funded by the commission shall:
(1)
implement a systematic process to identify and offer appropriate
referrals for family members of clients;
(2)
inform clients and involved family members of family services
offered directly and through other community resources; and
(3)
document family participation and attempts to engage family
members in services.
(c)
Levels II, III, and IV treatment programs funded by the
commission shall provide:
(1)
family education and counseling related to the client's
substance abuse;
(2)
life skills training;
(3)
case management;
(4)
disease management;
(5)
support group opportunities for adolescents and adults,
including older adults; and
(6)
individual and/or family aftercare. Level IV treatment
can be used to satisfy this requirement if it is provided as a transitional
level of care for a client transferring from a Level I, II or III treatment
program.
(d)
The program shall establish and demonstrate active use
of cooperative agreements with available substance abuse and other mental
health, health care, and social services to meet the needs of clients and
family members. Agreements to coordinate services must be established in writing
and renewed annually (through signature or other documented contact), and
shall include:
(1)
names of the organizations entering into the agreement;
(2)
services or activities each organization will provide;
(3)
signatures of authorized representatives; and
(4)
dates of action and expiration.
(e)
The program shall develop and implement a written plan
of operation explaining outreach efforts, including specific strategies to
reach members of the priority populations listed in §144.522 of this
title (relating to Priority Populations). The commission may waive this requirement
if the program demonstrates high capacity utilization and adequate engagement
of the priority population.
(f)
The program shall document active participation in collaborations
to support community resource development.
(g)
All counseling sessions and other activities counted toward
the required hours of service must last at least 30 minutes.
(h)
Adult treatment programs may provide specialized services
to pregnant women, women with dependent children, and women with children
under the custody of Child Protective Services who are seeking to regain custody
of their children through a formal reunification plan. The provider may bill
the commission for specialized female services provided to these women only
if the program provides the services described in §144.541(b) of this
title (relating to Specialized Treatment Services for Females).
§144.541.Specialized Treatment Services for Females.
(a)
Specialized female residential and outpatient programs
shall serve the following priority populations:
(1)
Adolescent or adult women who are pregnant;
(2)
Adolescent or adult women with custodial, dependent children
under the age of 18; and
(3)
Adolescent or adult women with children under the custody
of Child Protective Services who are seeking to regain custody of the child(ren)
through a formal reunification plan.
(b)
The following services shall be provided directly or through
collaborative agreements with other service providers:
(1)
primary medical care for women receiving treatment, including
age-appropriate and specific reproductive health care and prenatal care;
(2)
gender-specific substance abuse treatment and other therapeutic
interventions for women that address issues of relationships, sexual and physical
abuse and parenting;
(3)
childcare while the women are receiving services;
(4)
primary pediatric care for the clients' children, including
immunizations;
(5)
therapeutic and other structured interventions for the
children; and
(6)
documented sufficient case management and transportation
services to ensure that women and their children have access to the services
provided by paragraphs (1) - (5) of this subsection.
(c)
These programs shall treat the woman and her dependent
children as a unit and therefore admit both women and their children into
treatment, when appropriate and possible.
(d)
Programs shall implement a coordinated outreach plan that
targets services and organizations that regularly serve adult or adolescent
women with or without dependent children. Outreach to engage the target population
shall include regular, documented contacts with:
(1)
Temporary Aid for Needy Families (TANF) and Welfare to
Work offices;
(2)
Child Protective Services;
(3)
Early Childhood Intervention programs;
(4)
Health clinics that serve low-income women, infants, and
children;
(5)
Domestic violence programs;
(6)
STD clinics and HIV programs; and
(7)
Criminal Justice and Texas Youth Commission personnel.
(e)
Treatment programs serving women with dependent children
shall report monthly measures for the women's children when the children receive
prevention and/or intervention services.
(f)
Programs serving adult or adolescent women shall, to the
extent possible, provide an array of services including Levels II, III, and
IV treatment and structured aftercare, either directly or through case management
and service agreements. Level, intensity, and duration of services shall be
clinically appropriate.
(g)
Programs shall have written referral and service coordination
procedures with qualified providers to provide:
(1)
assessments for children for Early Childhood Intervention
services; and
(2)
counseling or therapy to address the children's identified
developmental, emotional, or psychosocial needs.
(h)
Treatment services shall address:
(1)
the effects of chemical dependency on a woman's health
and pregnancy and on her child's mental and physical health;
(2)
research-based parenting education, skills development,
and support;
(3)
child development, health, and nutrition; and
(4)
basic child care.
(i)
When children reside in the program or visit regularly,
the program shall use a standardized tool to regularly assess parent-child
interactions and address any identified needs in the client's treatment plan.
(j)
Specialized female programs and residential programs for
women and children shall not admit women who are not in the priority population
unless they have documented contact with all community outreach contacts showing
that no potential priority clients can be identified and admitted.
§144.542.Additional Requirements for Women and Children's Residential Programs.
(a)
Newborns and children 12 years old or younger may accompany
the mother into a residential program for women and children.
(b)
The program shall protect the health, safety, and welfare
of children admitted to treatment with their mothers.
(1)
Emergency evacuation procedures shall include provisions
for children.
(2)
Each child shall have a health assessment from a physician,
physician assistant, or registered nurse within 96 hours of admission. Copies
of an assessment performed up to thirty days before admission may be accepted.
(3)
Children's medication shall be given according to the label
by the parent, a licensed health professional, or an employee trained in self-administration
of medication, and documented by a trained staff member. The facility shall
not give medication to a child without written consent from the parent. If
trained staff provide the medication, the facility shall document the circumstances
that prevent the parent or licensed health professional from doing so.
(4)
The program shall provide an adequate diet for childhood
growth and development, including two snacks per day.
(5)
Residential programs shall not accept dependents over the
age of 12. Children over the age of six shall not share a bedroom with a member
of the opposite sex who is not in the child's immediate family.
(6)
The program shall protect children from access by unauthorized
individuals.
(c)
The program shall provide a safe, sanitary, and secure
environment for children. The program site shall be free from child hazards.
(1)
The program shall have indoor and outdoor play areas. Indoor
play areas shall have natural light and two routes of exit. Outdoor play areas
shall have a safe route of access and be enclosed by a fence at least four
feet high if the play area serves more than six children or is located close
to a road, pool, ditch, or other hazard.
(2)
Rooms and buildings shall have at least 30 usable square
feet of indoor activity space per child when occupied by children.
(3)
Bedrooms shall have at least 40 usable square feet for
each child 18 months and older. When infants less than 18 months old share
the parent's bedroom, the room shall contain at least 30 usable square feet
per infant.
(d)
The program shall ensure that children are directly supervised
by parents, staff, or qualified childcare providers at all times.
(1)
The program shall provide oversight and guidance to ensure
children receive appropriate care when they are supervised by clients.
(2)
When staff are responsible for children, the staff-to-child
ratio shall not exceed 1:4 for infants (18 months and younger) and 1:6 for
toddlers and children.
(3)
At least one staff person trained in infant/child CPR shall
be on duty at all times.
(4)
All staff responsible for childcare shall have infant/child
CPR and at least eight hours of training that includes information on:
(A)
chemical dependency and its impact on the family;
(B)
child development and age-appropriate activities;
(C)
child health and safety;
(D)
appropriate child supervision techniques; and
(E)
signs of child abuse.
(5)
Behavior management shall be fair, reasonable, consistent,
and related to the child's behavior. Physical discipline is prohibited.
(e)
The program shall provide a variety of structured services
for children.
(1)
Toys and activities shall be safe and age-appropriate.
(2)
School age children shall have access to TEA-approved educational
services.
(3)
The program shall implement the Strengthening Families
program for women and their children if the children are six to ten years
of age.
(f)
The children's program shall have a supervisor or consultant
with at least 90 contact hours of education and training in child development
and/or early childhood education and one year of documented, supervised experience
providing services to children.
§144.543.Pharmacotherapy Services.
(a)
All programs providing pharmacotherapy services shall maintain
compliance with applicable statutes and regulations adopted by the:
(1)
Texas Department of Health;
(2)
Department of Health and Human Services; and
(3)
Drug Enforcement Agency.
(b)
All pharmacotherapy programs must conduct the Methadone
Annual Survey as directed by the commission.
(c)
All pharmacotherapy programs shall adopt policies and procedures
that conform with §144.523 of this title (relating to Waiting List and
Interim Services) and §144.107 of this title (related to Reporting).
(d)
A pharmacotherapy program can bill for a client receiving
methadone who has an excused or planned absence for up to two consecutive
days. The frequency of approved absences shall be reasonable and appropriate.
The provider shall not bill for more than eight days of excused/planned absences
for a single client in a 30-day period.
(e)
All pharmacotherapy programs shall complete a client fee
assessment on each commission-funded client every six months.
(f)
All direct care employees shall demonstrate knowledge or
receive training that includes:
(1)
symptoms of opiate withdrawal;
(2)
drug urine screens;
(3)
current standards of pharmacotherapy; and
(4)
poly-drug addiction.
(g)
All pharmacotherapy programs shall develop and implement
a plan to achieve accreditation as required by federal regulations.
§144.552.Select Performance Measure Definitions.
(a)
Completion of Treatment. This measure applies to Levels
II, III, and IV, except for pharmacotherapy programs. For a client to have
completed a level of treatment, the client record must indicate that all of
the following criteria have been met.
(1)
A client must substantially complete his or her planned
duration of stay and individualized treatment plan objectives. This means
that the average of subparagraphs (A) and (B) of this paragraph must equal
or exceed 75%.
(A)
The percentage of the individual's planned duration of
stay (as documented in the most recent treatment plan) that was completed
by the client.
(B)
The percentage of the behavioral objectives identified
in the original treatment plan and subsequent revisions that have been achieved
by the client.
(2)
A discharge plan or transfer note must have been completed
in accordance with the requirements noted in §148.322 of this title (relating
to Discharge Plan) or §148.304 of this title (relating to Treatment Plan
Reviews).
(3)
The discharge summary or transfer note shall indicate whether
the client has successfully completed treatment according to the above criteria,
and must be signed by a qualified credentialed counselor. The client record
must also contain supporting documentation for completion.
(b)
Abstinence. This measure applies to Levels II, III, and
IV programs, except for pharmacotherapy programs. Abstinence is the percent
of clients who report no use of alcohol or drugs within the past 30 days when
contacted 60 days after discharge from the treatment program. For those clients
who are transferred to another commission-funded level of service within the
same program (therefore no follow-up is required), abstinence is the percent
of transferred clients who report no use of alcohol or drugs during the 30
days prior to discharge or the duration of treatment, whichever is less.
(c)
Referral Rate. This measure applies to Level I programs.
Referral rate is the percentage of discharged clients who have completed Level
I treatment and are transferred for continuing substance abuse treatment as
defined below.
(1)
Completion of Level I Treatment. For a client to have completed
Level I treatment, the client record must indicate that both of the following
criteria have been met.
(A)
Levels of toxic substances and withdrawal symptoms have
been sufficiently reduced such that the client is medically stable and able
to participate in a less intensive level of treatment. A statement to this
effect must be signed by the medical supervisor of the program in the discharge
summary or transfer note.
(B)
A discharge plan or transfer note must be completed prior
to discharge or transfer in accordance with the requirements noted in §148.322
of this title or §148.304 of this title.
(2)
Referral. For a client to have been transferred from Level
I to continuing substance abuse treatment, the client record must indicate
that one of the following criteria has been met.
(A)
The client has been discharged from the program and referred
to a less intensive level of treatment in another facility, and the program
has conducted follow-up to determine the results of the referral. The referral
and follow-up must be documented in the client record.
(B)
The client has been transferred to a less intensive level
of treatment within the organization. The client record must include a transfer
note to document the transfer.
(d)
One-Year Retention Rate. This measure applies to Level
IV Pharmacotherapy programs. The One-Year Retention Rate is the percentage
of clients admitted within the previous fiscal year who have remained continuously
active in the program for at least one year as documented by CDS forms.
(e)
Abstinence Rate. This measure applies to Level IV Pharmacotherapy
programs. The Abstinence Rate is based on the percentage of clients with no
positive urinalysis for illicit opiates, amphetamines, cocaine, and barbiturates
in the 90 days prior to the Methadone Annual Survey. The client record shall
contain copies of all urinalysis test results. This calculation excludes recent
admissions.
(f)
Employment Rate. This measure applies to Level IV Pharmacotherapy
programs. The Employment Rate is based on the percentage of all active clients
employed at the time of the Methadone Annual Survey, as documented in the
client record. This calculation excludes recent admissions.
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 August 6, 2001.
TRD-200104487
Karen Pettigrew
General Counsel
Texas Commission on Alcohol and Drug Abuse
Effective date: September 1, 2001
Proposal publication date: June 22, 2001
For further information, please call: (512) 349-6607
The Texas Commission on Alcohol and Drug Abuse adopts the repeal of §§148.1-148.4,
148.21-148.27, 148.41, 148.42, 148.61, 148.71-148.74, 148.91-148.93, 148.111-148.119,
148.141-148.148, 148.161-148.164, 148.171-148.173, 148.181-148.185, 148.201-148.203,
148.211-148.214, 148.231-148.234, 148.236-148.238, 148.251-148.254, 148.261-148.268,
148.281-148.284, 148.291-148.293, 148.301-148.304, 148.321-148.324, 148.331,
148.332, 148.341, 148.351-148.359, 148.372, and 148.373 concerning facility
licensure, without changes to the proposed text as published in the June 22,
2001, issue of the
Texas Register
(26 TexReg
4675).
These rules are being repealed to allow adoption of a revised version of
the rules. The adopted new rules will be published in the
Texas Register
.
The repeal of these rules eliminates duplicative rules and prevents conflict
with newer rules.
One comment was received from the Burke Center regarding the adoption of
the repeal.
Comment: The sections of the current licensure standards that address Parents
and Their Dependent Children (§148.232), Structured Therapeutic Children's
Services (§148.233), Small Family Living Environments (§148.237),
Physical Plant Requirements for Children (§148.372) and Physical Plant
Requirements for Small Family Living Environments (§148.373) are not
included in the proposed standards. Is this a reflection of the future of
these programs? Does TCADA propose to discontinue residential programs for
women and children?
Response: The commission will continue to fund Specialized Female Treatment
and residential treatment for Women with Dependent Children. Rules relating
to specialized women's programs have been moved to Chapter 144 (Contract Requirements).
Although specific rules for small family living environments have been deleted,
facilities are still permitted to house clients in small family living environments.
If clients are supervised in the residence, the residential physical plant
requirements will be applied to these living situations. If clients simply
live in housing provided by the facility while attending an outpatient program,
the residence will not be subject to licensure.
Subchapter A. LICENSURE INFORMATION
40 TAC §§148.1 - 148.4, 148.21 - 148.27, 148.41, 148.42, 148.61
The repeal is adopted under the Texas Health and Safety Code,
Chapter 464 which provides the Texas Commission on Alcohol and Drug Abuse
with the authority to adopt rules licensing chemical dependency treatment
facilities.
The code affected by the adopted repeal is the Texas Health and Safety
Code, Chapter 464.
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 August 9, 2001.
TRD-200104600
Karen Pettigrew
General Counsel
Texas Commission on Alcohol and Drug Abuse
Effective date: September 1, 2001
Proposal publication date: June 22, 2001
For further information, please call: (512) 349-6607
40 TAC §§148.71 - 148.74, 148.91 - 148.93, 148.111 - 148.119
The repeal is adopted under the Texas Health and Safety Code,
Chapter 464 which provides the Texas Commission on Alcohol and Drug Abuse
with the authority to adopt rules licensing chemical dependency treatment
facilities.
The code affected by the adopted repeal is the Texas Health and Safety
Code, Chapter 464.
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 August 9, 2001.
TRD-200104601
Karen Pettigrew
General Counsel
Texas Commission on Alcohol and Drug Abuse
Effective date: September 1, 2001
Proposal publication date: June 22, 2001
For further information, please call: (512) 349-6607
40 TAC §§148.141 - 148.148, 148.161 - 148.164, 148.171 - 148.173, 148.181 - 148.185
The repeal is adopted under the Texas Health and Safety Code,
Chapter 464 which provides the Texas Commission on Alcohol and Drug Abuse
with the authority to adopt rules licensing chemical dependency treatment
facilities.
The code affected by the adopted repeal is the Texas Health and Safety
Code, Chapter 464.
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 August 9, 2001.
TRD-200104602
Karen Pettigrew
General Counsel
Texas Commission on Alcohol and Drug Abuse
Effective date: September 1, 2001
Proposal publication date: June 22, 2001
For further information, please call: (512) 349-6607
40 TAC §§148.201 - 148.203, 148.211 - 148.214, 148.231 - 148.234, 148.236 - 148.238, 148.251 - 148.254, 148.261 - 148.268
The repeal is adopted under the Texas Health and Safety Code,
Chapter 464 which provides the Texas Commission on Alcohol and Drug Abuse
with the authority to adopt rules licensing chemical dependency treatment
facilities.
The code affected by the adopted repeal is the Texas Health and Safety
Code, Chapter 464.
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 August 9, 2001.
TRD-200104603
Karen Pettigrew
General Counsel
Texas Commission on Alcohol and Drug Abuse
Effective date: September 1, 2001
Proposal publication date: June 22, 2001
For further information, please call: (512) 349-6607
40 TAC §§148.281 - 148.284, 148.291 - 148.293, 148.301 - 148.304, 148.321 - 148.324
The repeal is adopted under the Texas Health and Safety Code,
Chapter 464 which provides the Texas Commission on Alcohol and Drug Abuse
with the authority to adopt rules licensing chemical dependency treatment
facilities.
The code affected by the adopted repeal is the Texas Health and Safety
Code, Chapter 464.
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 August 9, 2001.
TRD-200104604
Karen Pettigrew
General Counsel
Texas Commission on Alcohol and Drug Abuse
Effective date: September 1, 2001
Proposal publication date: June 22, 2001
For further information, please call: (512) 349-6607
40 TAC §§148.331, 148.332, 148.341, 148.351 - 148.359, 148.372, 148.373
The repeal is adopted under the Texas Health and Safety Code,
Chapter 464 which provides the Texas Commission on Alcohol and Drug Abuse
with the authority to adopt rules licensing chemical dependency treatment
facilities.
The code affected by the adopted repeal is the Texas Health and Safety
Code, Chapter 464.
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 August 9, 2001.
TRD-200104605
Karen Pettigrew
General Counsel
Texas Commission on Alcohol and Drug Abuse
Effective date: September 1, 2001
Proposal publication date: June 22, 2001
For further information, please call: (512) 349-6607
The Texas Commission on Alcohol and Drug Abuse adopts new §§148.1,
148.23, 148.25, 148.31, 148.102, 148.113, 148.201, 148.203, 148.205, 148.301-148.303,
148.313, 148.316, 148.401, 148.403, 148.405, 148.406, 148.411, 148.412, 148.421,
148.423, 148.424, 148.426, and 148.601 with changes to the proposed text as
published in the June 22, 2001 issue of the
Texas
Register
(26 TexReg 4678).
Sections 148.11, 148.21, 148.22, 148.24, 148.26-148.28, 148.101, 148.103,
148.105, 148.106, 148.111, 148.112, 148.115, 148.202, 148.311, 148.312, 148.315,
148.413, 148.422, 148.501-148.504, and 148.602-148.607 are adopted without
changes to the proposed text and will not be republished.
The Commission adopts these rules to reflect new legislation requiring
parental consent for all individuals under the age of 18; to require non-LCDCs
to have at least 1,000 hours of experience working with individuals who have
substance use disorders; to eliminate site-based licensure for outpatient
programs; to reduce administrative requirements and the number of formal written
policies and procedures required, especially for outpatient programs; to expand
the requirement for criminal background checks to include all staff, and add
a new requirement for pre-employment drug screening; to eliminate recreational
services as part of the core requirements in Level II; to require at least
two hours of counseling per week in Level IV; and to eliminate unnecessary
detail.
Residential programs will be required to provide additional hours of structured
activities during evening and weekend hours. This was previously required
only for funded programs.
New restrictions on group size have been established; specific caseload
limits have been replaced with guidelines for determining maximum caseloads;
direct care staff-to-client ratios have been eliminated for adult outpatient
programs, and increased for less intensive adult residential programs. A new
requirement has been added requiring program directors to have at least two
years of post-licensure experience. This was previously required in funded
programs.
Level I (Detoxification) requirements have been significantly enhanced
to ensure programs are prepared to treat clients going through withdrawal.
The program must have a medical director, all admissions must be authorized
by a physician or nurse with physician verification within 72 hours, and all
programs must have nursing staff on duty eight hours a day.
Programs will be required to place clients in the most appropriate level
of care available, using the Texas Department of Insurance admission and placement
criteria as a guideline for placement decisions. This was previously required
only for funded programs.
Screening and assessment requirements for mental health problems have been
strengthened to improve treatment for dually diagnosed clients.
Level II, III, and IV residential treatment programs will be allowed to
use a nursing assessment in place of a medical history and physical for clients
with no physical complaints or symptoms.
Provisions for specialized female programs have been moved to Chapter 144
and provisions for small family living environments have been eliminated.
The following comments were received regarding §148.1. Definitions.
Comment: Does aftercare include Level IV outpatient? The Level IV outpatient
requirement and its relation to aftercare needs to be clarified and defined.
Response: In facility licensure rules (Chapter 148), the term aftercare
is used only in describing the required contents of the discharge plan. In
Chapter 144 (Contract Requirements), all funded treatment programs must provide
aftercare. The rule clearly states that "Level IV treatment can be used to
satisfy this requirement if it is provided as a transitional level of care
for a client transferring from a Level I, II, or III treatment program. "When
a client is discharged to continue treatment at another facility, the referring
facility is not required to provide aftercare.
Comment: The definition for chemical dependency treatment describes a comprehensive
process, but the definitions for chemical dependency education and life skills
training eliminate the use of non-counselors. There are other professionals
(teachers, BSWs, etc.) who can deliver this material with proper training.
Furthermore, a counselor is not necessarily the most qualified person to provide
instruction in some topics (e.g., nutrition, job seeking, child care). Clients
can benefit from the use of specialists such as dieticians and certified job
placement counselors.
Response: The definitions have been revised to allow the use of other qualified
staff and to ensure these activities are limited to instruction and training
and do not include services that fall within the scope of chemical dependency
counseling.
Comment: The use of LPC interns (or other licensed professional interns)
needs to be addressed as to whether they must also become Counselor Interns.
Response: An LPC or other licensed professional intern does not need to
become a chemical dependency counselor intern.
Comment: Under the new rules, a professional who is not an LCDC must have
2,000 hours of supervised work experience treating substance use disorders
in order to qualify as a Qualified Credentialed Counselor.
There are many other professionals included in the definition of QCC who
are well prepared academically and clinically to provide quality client care
to individuals with chemical dependency or dual dependency disorders. Requiring
that they show 2,000 supervised hours in a treatment setting will disqualify
many of them. Most have limited exposure during internship, and few work in
licensed treatment facilities where they would even gain that type of experience.
If they did, they would be more likely to be the clinical supervisor than
the person receiving supervision. I understand the need to professionalize
the specialty of substance abuse treatment, but an attempt to equate an LCDC
(who often does not have even a bachelor's degree) with individuals who are
masters or doctorate prepared is perhaps not prudent thinking. It is neither
fiscally nor clinically sound to risk the loss of these professionals in order
to meet QCC requirements.
I believe revising the definition of QCC to require non-LCDCs to have at
least 2,000 hours of supervised work experience in chemical dependency treatment
is a very positive move. Just because someone is licensed as a counselor,
social worker, etc., does not mean they have the base of knowledge and skills
needed to work with clients with substance abuse problems. For example, I
attended a community meeting that the local MHMR sponsored several years ago,
and the speaker shared that he and his colleagues had a lot of problems with
the idea that alcoholism and drug addiction were diseases. Someone without
the proper orientation/training could do a lot of damage by expecting that
an alcoholic should be able to control his use and become a normal social
drinker. The LCDC credential has been criticized for not requiring a master's
degree or even a bachelor's degree. Requiring other professions to have 2,000
hours of experience in treating chemical dependency also gives this field
(and the LCDC credential) an elevation in status that is appropriate to the
expertise that is needed for this work.
This rule change is beneficial and problematic at the same time. It can
be difficult for providers in some geographic areas to find qualified LCDCs.
Allowing these facilities to hire other professionals has helped them to keep
their programs operational. At the same time, these professionals are not
required to have specific training in chemical dependency for their license.
Often they know very little about the disease and its treatment. Asking for
2,000 hours provides some assurances that a QCC has appropriate knowledge
and experience. But then, how does a non-LCDC QCC acquire the hours if they
cannot be hired to perform related job duties until they have 2,000 hours?
Facilities often cannot afford to hire professionals at a salary expected
by an LPC or LMSW and then train them under supervision for 2,000 hours before
they can perform the job duties independently. I suggest the hard and fast
rule of 2,000 hours be removed. It could be replaced with something more flexible
such as "and has documented training and/or experience" in treating substance
use disorders.
Response: The definition has been modified to require a non-LCDC to have
1,000 hours of documented experience working with individuals who have substance
use disorders in order to qualify as a QCC. This experience can be obtained
during the individual's training or through post-licensure work experience.
The following comments were received regarding §148.21. License Required.
Comment: We are pleased to see the move away from having each outpatient
site licensed. This is seen as very positive and will promote the ability
of organizations to do more rural programming and be more innovative in getting
services to the clients.
Comment: This section says that a religious organization registered as
a faith-based chemical dependency treatment program does not need to be licensed.
For the protection of the clients that faith based programs may serve, I see
no reason why such organizations should be exempt from licensing standards.
Someone should monitor their programs and operations much as other treatment
programs are monitored.
Response: This exemption is established in statute.
The following comment was received regarding §148.25. Changes in Status.
Comment: Are you eliminating registered extension sites? Will all outpatient
sites have to be licensed or will you simply be requiring notification in
writing?
Response: The commission is eliminating registered extension sites. Under
the new rules, a licensed facility can provide outpatient services at any
location without having the location licensed or registered. The provider
must, however, notify TCADA in writing in advance and receive written acknowledgement
that the commission has received the notification.
The following comment was received regarding §148.26. Closure.
Comment: Why was inactive status eliminated? There are circumstances where
the ability to go on inactive status is beneficial. An example is when an
outpatient program loses a sole staff person and is having difficulty finding
a qualified replacement. Being able to go on inactive status is helpful for
the program rather than falling behind on measures, etc. Is there a process
for a provider to follow in such a situation?
Response: A facility is free to temporarily discontinue a program. The
commission is simply eliminating the requirement to receive approval from
the commission when this occurs. Even under the current rules, going on inactive
status does not excuse a program from meeting contractual obligations. That
is not a licensure issue and must be negotiated separately with TCADA.
The following comment was received regarding §148.28. Licensure Fees.
Comment: Under subsection (d), a $25 fee is charged for a printed list
of licensed facilities, a set of mailing labels for licensed facilities, or
a replacement certificate. What justification is used to implement a 67% increase
in this fee (from $15 to $25)?
Response: This change was made to standardize the fees charged under Chapter
148 (Facility Licensure) and 150 (Counselor Licensure).
The following comment was received regarding §148.31. Action Against
a License.
Comment: I suggest the wording in subsection (a) be cleaned up a bit in
this section. Also, should the language in subsection (c) be "action against
a license or licensee?"
Response: The language in subsection (a) has been revised. The terminology
in subsection (c) is correct as written-"action against a license".
The following comment was received regarding §148.102. Policies, Procedures,
and Licensure Rules.
Comment: I appreciate the fact that the proposed rules have been significantly
shortened or streamlined. However, having just completed catch up with our
policy and procedure manual for revisions to Chapter 144, we will now have
to start over. I would hope this would be the last revision for the next year
or two.
Response: The commission recognizes that it is difficult for providers
to adjust to frequent rule changes. Although efforts are made to minimize
the frequency and scope of rule revisions, a rapidly changing environment,
emerging issues, and other factors often necessitate such changes. The need
for revision is reviewed annually for each chapter. The commission is also
working to simplify and streamline its rules to decrease the administrative
burden on providers and allow greater stability. The currently proposed revisions
will not necessitate extensive changes to written policies and procedures.
Many past requirements have been eliminated, but providers may certainly retain
those procedures and provisions in their policy and procedure manual.
The following comment was received regarding §148.113. Significant
Incident Reports.
Comment: Subsection (g) requires medical emergencies and violent behavior
to be reported to the commission's investigations division within 72 hours.
Treatment programs experience a range of incidents related to these categories.
The definitions need to be expanded to clarify expectations and avoid excessive
reporting.
Response: The rule has been revised to further define incidents that must
be reported. A medical emergency must be reported when it results in admission
to an inpatient unit of a medical or psychiatric facility, and violence must
be reported when it results in injury or a police report.
The following comment was received regarding §148.201. Hiring Practices.
Comment: Subsection (d) requires the facility to obtain the results of
a statewide criminal background check from the Department of Public Safety
on all staff within two weeks of the date of hire. The process of obtaining
these reports is time consuming and receiving the report back from DPS within
2 weeks of hire is often out of the provider's control. A response may take
up to six weeks. If there is a quicker, simpler process available through
the Internet, please let providers know about this resource and assure them
that TCADA will accept criminal background checks done in this manner. Also,
if the employee had a background check run six months ago, could agencies
accept that check rather than run another? I suggest adding a time frame for
what is acceptable and not acceptable.
Response: The rule has been revised to require the facility to initiate
the criminal background check within one week of employment and to allow the
provider to accept background checks conducted up to 30 days prior to the
date of employment. Providers may also obtain results immediately by using
the DPS website. This process has some disadvantages in comparison with fingerprint
checks, but is much less expensive. An article in Volume 31 of the commission's
Provider Bulletin (Summer 2000) describes the options available for conducting
criminal background checks, including use of the DPS website.
The following comments were received regarding §148.21. License Required
and §148.201. Hiring Practices.
Comment: Under subsection (e) the facility must require all prospective
staff to pass a pre-employment drug test that meets criteria established by
the commission. If a prospective employee has recently had an acceptable drug
test, can we accept it or must the candidate take another one? Perhaps some
mention of what is acceptable in this regard could be included in this section.
Response: Allowing an applicant to submit results from an outside drug
screen makes it possible for a person who uses illicit drugs to submit a drug
screen of his or her choosing. It would also be difficult for the employer
to verify that the drug screen met the commission's standards. An applicant
must submit to and pass a drug screen administered through the facility at
the time of hire.
Comment: Is requiring a drug test from a prospective employee lawful? There
is also a question about what determines a prospective employee. Do all employees
being interviewed have to take a drug test? That would be an expensive and
burdensome proposition.
Response: It is lawful to require a drug screen as a condition of employment.
The wording has been modified to state that the facility cannot hire a prospective
employee until the individual passes a pre-employment drug test.
The following comments were received regarding §148.203. Staff Training
and §144.326. Staff Training.
Comment: It might be simpler if the formats for both §144.326(h) and §148.203(a)
were the same since they both deal with initial training. Number 7 is different
in each section.
Response: Licensure rules in Chapter 148 require programs to have emergency
and evacuation procedures, and the commission believes this information should
be provided to new staff during the first 30 days of employment so they are
prepared to respond to an emergency. Because prevention and intervention programs
are not required to have emergency procedures, this item is not included in
the orientation requirements under Chapter 144. Item number 7 in §144.326(h)
relates to individual job duties; this has been eliminated to be more consistent
with Chapter 148 requirements.
Comment: The rule increases the time frame for initial training from 7
to 30 days. Thank you for changing the requirement to 30 calendar days. This
has been very positively received.
Comment: Subsection (c) requires all direct care staff to complete four
hours of training related to tuberculosis, HIV, Hepatitis B and C, and sexually
transmitted diseases during the first 90 days of employment. Why have the
hours been increased to four? The previous rule of two hours seems to have
been satisfactory for dissemination of needed information on these issues.
If it is felt increased time needs to be given to these topics, we would suggest
three hours rather than four.
Response: The commission does not believe two or three hours is sufficient
time to adequately cover the information. Rates of Hepatitis C are rising
in substance abusing populations, and more time is needed to adequately educate
staff on this disease.
Comment: Subsection (c) requires the facility to provide staff with updated
information about communicable diseases every two years. The length of time
of the update needs to be stated.
Response: The rule is written to give facilities flexibility in providing
this information. The update does not require a training session. For example,
information might be provided through written materials reviewed at a staff
meeting. The amount of time needed will depend on how much medical knowledge
and clinical practice related to these diseases has changed during the two-year
interval. The update should be sufficient to provide staff with current information
so that they can provide necessary information and interventions for clients.
Comment: According to subsection (g), "Each staff member who conducts intakes
or screens applicants for admission shall complete eight hours of training
in the program's intake and screening procedures annually. (1) The first eight
hours shall be completed during the first 90 days of employment and before
a staff member conducts intakes or screens applicants for admission. (2) The
training shall cover the DSM-IV diagnostic criteria for substance-related
disorders, and shall also include at least two hours annually on other mental
health diagnoses." Is this still required by statue? If so, please cite.
Response: The Texas Health and Safety Code, §462.025(e) states: "In
accordance with commission rule, a treatment facility shall provide annually
a minimum of eight hours of inservice training regarding intake and assessment
for persons who will be conducting an intake or assessment for the facility.
A person may not conduct intake or assessments without having completed the
initial and applicable annual inservice training." (Note: In this statute,
the term "assessment" is equivalent to the commission's term "screening.")
The commission requires the training to address two topics that are critical
to the screening process.
Comment: Subsection (j) states that the amount and type of training for
contract personnel shall be based on the amount of time spent at the facility,
degree of client contact, and individual qualifications and responsibilities.
This is very vague. More guidance on this rule is needed so providers have
some idea of TCADA's expectation regarding the amount and type of training.
Response: Because of the great diversity in contract personnel arrangements,
the commission believes it is more appropriate to give facilities flexibility
to determine appropriate training. The decision should be reasonable and based
on the factors listed.
The following comment was received regarding §148.205. Training Requirements
Relating to Abuse, Neglect, and Unprofessional or Unethical Conduct.
Comment: Subsection (e) applies this to "each full-time employee." Do you
really mean "each full-time direct care employee?"
Response: Statute requires this training for all employees.
The following comment was received regarding §148.312. Client Labor.
Comment: Under subsection (a), former clients are not eligible for employment
at the facility until at least two years after discharge. Having a two-year
prohibition from hiring former clients seems excessive. We would agree hiring
a client after only a short period away from the treatment center may not
allow a person enough time to detach from former counselors, etc. But a former
client that has had at least a year to separate from the program and gain
some independent sobriety should be eligible to return as an employee.
Response: The commission disagrees and will continue to require a two-year
waiting period.
The following comments were received regarding §148.313. Restraint
and Seclusion.
Comment: Subsection (a) states: The governing body shall adopt a policy
to either authorize or prohibit the use of personal restraint, mechanical
restraint, and seclusion. All adolescent residential programs, detoxification
programs, and programs accepting emergency detentions shall authorize use
of personal restraint." A governing body should have the ability to either
authorize or prohibit the use of these procedures. An organization's board
may have a committed position against such action and that needs to be respected.
Also, the governing board ultimately holds the liability should these practices
be authorized and pays for the insurance. There is concern that requiring
the use of personal restraints for detoxification is not necessary. TCADA
should not override a board's decision to not authorize personal restraint
if it is evidenced that there are clear procedures to follow in the event
a client should become violent or out of control. We suggest removing detoxification
as program that is required to authorize personal restraints and allow the
board to make that determination.
Response: The rule has been revised to remove the mandate for detoxification
programs. However, the commission believes that staff in adolescent residential
programs and programs accepting emergency detention must be prepared to restrain
clients because of the high level of risk. When a client presents an immediate
risk to self or others and all other interventions have been tried without
success (the criteria for use of restraint or seclusion), there is often no
alternative action to prevent injury. In such emergencies intervention by
a person who is not trained in safe methods of restraint can itself result
in injury to the client.
Comment: Under subsection (e) staff must obtain authorization from the
supervising qualified credentialed counselor before starting restraint or
seclusion or as soon as possible after implementation, and face-to-face evaluation
is required for the QCC to authorize mechanical restraint or seclusion. This
seems somewhat restrictive if an emergency does present itself. Action may
need to be taken immediately without the face-to-face authorization of a QCC.
Somehow more latitude for an emergency situation should be included.
Response: The rule allows personal restraint to be administered immediately
without face-to-face evaluation and authorization from a QCC. This provision
gives staff sufficient time to obtain the required face-to-face evaluation
and authorization before initiating mechanical restraint or seclusion, which
are generally used for longer periods of time.
The following comment was received regarding §148.316. Searches.
Comment: Are these rules specific to individual searches or do they include
facility searches?
Response: The rules apply to personal searches and searches of a client's
property or sleeping quarters. General searches of the facility are not included.
The rules have been revised to clarify the intent. Language has also been
added to clarify that directly observed strip searches are prohibited.
The following comments were received regarding §148.401.-Requirements
Applicable to All Programs (Residential and Outpatient).
Comment: Subsection (c) doubles the number of hours of counseling required
for Level II and III programs and limits the number of hours of CD education
that can be counted towards the required hours of service. Some of the comments
received reflected misunderstanding or confusion about how services would
be classified. Other concerns include:
Level II clients need heavy doses of chemical dependency education to understand
what is happening to them and why, and how they can get well. A sprinkling
of life skills education can be interjected but I would tend to believe life
skills would be more appropriate for Level III and IV. This seems to me to
be a natural progression of treatment, which fits the continuum of care.
If some change is not made, accepted program models will not fit into the
expectation of only four education hours per week. One could also argue that
making the bulk of non-counseling hours be life-skills training is as not
as therapeutically desirable at Level II as education sessions on the disease.
While all staff throughout the state are LCDCs at a minimum, they vary
greatly in the extent to which they have training and experience to effectively
do individual counseling as well as process group counseling. For those clients
who genuinely do need weekly individual counseling and there exists staff
who are qualified to provide that service, the option has always been there
in the past without it being mandated.
Providers will have to add about three new groups a week in a Level II
program, and this will have a cost impact on providers.
Response: The rules have been revised to continue with requirements that
are currently in effect for Level II and Level III treatment, except that
the current requirement for recreation has been eliminated for Level II. The
requirement for weekly individual counseling in Level II is not a new requirement.
Comment: Subsection (c) increases the number of individual sessions for
Level IV from one per month to one hour per week. Weekly individual counseling
is not necessary for an individual who is receiving supportive outpatient
services after completing a more intensive level of care.
Level IV has its success in being less restrictive and allowing clients
to work and care for families while receiving treatment and is a very effective
and economical modality for the right population.
Because many clients in Level IV are employed, most services are provided
during evening hours. There are not enough hours in the evenings to fit in
weekly individual sessions for all clients. While a client might be able to
take off from work once every two weeks or so for an individual session, to
be able to do so on a weekly basis is not realistic and puts both the job
and compliance with scheduled treatment in jeopardy.
The TDCJ contract for the Transitional Therapeutic Community (TTC) of the
Criminal Justice Initiative specifies only two hours of individual per month
for the first three months and then one hour of individual per month for the
remainder of months in treatment unless additional individual sessions are
approved by TDCJ in advance. I have serious concerns that they will not pay
for the additional services because they do not seem to have either requested
and/or received any more money from the legislature for their treatment services.
This will increase the need for properly credentialed counselors at a time
when there is a very limited number of these counselors or counselor interns
statewide and in this rural area in particular.
This change will have a substantial cost impact on providers.
Response: The proposed rule has been modified to require two hours of counseling
per week including at least one hour of individual counseling per month.
Comment: Under the proposed subsection (d) group counseling sessions are
limited to a maximum of ten clients. Currently, Chapter 144 allows up to 16
clients per group. One commenter supported the change. Many more expressed
the following concerns:
A maximum of ten per group will basically double the number of group sessions
and require additional counseling staff.
We do not object to this on a therapeutic basis, but it will have a tremendous
cost impact and there is inadequate funding to accommodate the change.
The change is especially limiting for outpatient programs because clients
may or may not show up.
The problem of space to conduct the additional group counseling sessions
will also surface.
Response: The proposed rule has been revised to allow up to 16 clients
in a counseling group.
Comment: Subsection (j) states that individuals shall not be denied admission
or discharged from treatment because they are taking prescribed medication.
When clients are prescribed narcotics, sedative/hypnotics and/or benzodiazepines
and are being admitted due to the abuse of or addiction to these medications,
we do not permit them to continue to take the prescription medication while
in treatment. Clients are usually placed in Level I to detox from the medications
and then transferred to Level II where they are taught to use alternatives
to the use of the abused medications. We would like to see some latitude with
this standard based on the individual seeking treatment and the type of prescription
medication the client requests to bring to treatment.
Response: This rule does not restrict a program's ability to provide appropriate
detoxification and treatment for a person who is abusing prescription medication.
The following comments were received regarding §148.403. General Staffing
Requirements (Residential and Outpatient).
Comment: There is some confusion in the format. It seems there has been
movement away from labeling Level II, III & IV as either outpatient or
residential. An example is §148.403(c), which relates to caseload size.
Does this apply to outpatient or residential?
Response: All proposed rules apply to both residential and outpatient services
unless the title specifically references residential programs. The title of
this section and several others have been expanded to indicate they apply
to residential and outpatient programs.
Comment: Subsection (c) raises the number of clients allowed per counselor
in Level II from 10 to 15. Caseloads for counselors in Level III and Level
IV are limited to 30 clients. Under existing rules, Level III caseloads are
limited to 16 clients, Level IV residential caseloads are limited to 20 clients,
and Level IV outpatient programs establish their own caseload sizes.
The increase to 15 clients on a caseload in Level II is positive because
it allows more flexibility for programs.
It seems reasonable that the caseload limit for Level IV, with a minimum
of two hours per week services, be set higher than Level III, which is a minimum
of ten hours per week of services.
Counselors are already carrying the maximum number of clients they can
handle. Fifteen clients per counselor (Level II) is too many clients and 30
clients per counselor (Levels III & IV) is certainly too many. If your
focus is on more individualized attention per client as seems to be indicated
in other rule changes, why increase the maximum clients per counselor?
I realize we do not have to max out at those levels but many programs will,
to the detriment of the client and the staff person trying to keep up with
all of the required documentation. With a stated maximum, some programs might
push the limit because it is allowable (although not necessarily desirable)
or because they think the stated ratio is the one TCADA expects.
Limiting counselor caseloads to 30 in Level IV is far too low for programs
that operate primarily in the group mode. It should be the prerogative of
individual programs to establish counselor caseload sizes based on program
design. Return to the old guideline that simply requires outpatient programs
to set limits on counselor caseload size that ensure effective, individualized
treatment.
Response: The proposed rule has been revised to require each program to
set limits on caseload size that ensure effective, individualized treatment.
The program must justify the caseload size in writing based on the program
design, characteristics and needs of the population services, and any other
relevant factors.
Comment: Subsection (e) states that individuals responsible for planning,
implementing, or supervising Level II, III, and IV treatment must be qualified
credentialed counselors. We disagree with this language and suggest that an
intern can perform these functions under supervision of a QCC.
Response: The language has been revised to clarify the intent by replacing
"implementing" with "directing."
Comment: Subsection (f) requires life skills training and education to
be provided by counselors. This proposal will increase counseling costs. Programs
will need to spread out their counseling staff further because they can no
longer use another qualified type of individual to teach a particular subject.
It also eliminates a number of qualified and highly trained non-LCDC specialists
from providing assistance to clients while under the supervision of a QCC.
Response: The proposed rule has been revised to require chemical dependency
education and life skills training to be taught by counselors or people who
have the specialized education, expertise, and/or experience needed to teach
the material.
Comment: We disagree with "only counselors" being allowed to provide treatment
services. This does not allow interns working under the supervision of a QCC
to perform any of these functions.
Response: In §148.1, a counselor is defined as a QCC, a graduate intern,
or a counselor intern.
The following comments were received regarding §148.405. Additional
Requirements for Level I (Residential or Outpatient Detoxification).
Comment: Subsection (a) states the medical director is responsible for
admission, diagnosis, medication management, and client care. Although a medically
supervised detox has access to a physician they may not be available at the
time of admission. A QCC with approved tools, protocols and standing orders
should be able to admit the client and then seek verification from the medical
director. We would suggest changing the language to something like... The
medical director shall verify all admissions and be responsible for diagnosis,
medication management and client care.
Response: Language in §148.421 (Screening and Admission Authorization)
has been revised to allow other health professionals (including registered
nurses) to authorize admission to a detox program provided the physician verifies
and cosigns the authorization within 72 hours. The language in this rule has
not been changed because the physician still retains overall responsibility
for the listed functions.
Comment: Subsection (b) requires the medical director to approve all medical
policies, procedures, guidelines, tools, and forms. We question whether the
medical director really needs to approve all forms. It would seem the program
administrator may actually have more knowledge in the forms area, such as
what TCADA needs to have documented, etc.
Response: The language has been modified to require the physician to approve
the medical content of forms.
Comment: Subsection (c) requires night staff to conduct and document at
least three checks while clients are sleeping. Nursing staff in a detox program
are going to be making rounds on clients and the requirement that one documents
that the client is in their bed asleep three times seems excessive.
Response: Clients admitted to detox are not stable and require consistent
monitoring throughout the night. Without individual documentation in the client
record, there is no way to verify that such monitoring is taking place.
Comment: Subsection (e) requires a licensed vocational nurse or registered
nurse with detoxification experience on duty and on site during all hours
of operation. Nurses with detoxification experience are difficult to find,
especially in non-metro areas. Detoxification programs are not plentiful in
this state. This is a very limiting requirement, especially when Texas is
facing a nursing shortage in general. We urge TCADA drop detoxification experience
from the rule. We are a non-medical residential Level I detox for adults.
We have RNs and MDs on-call 24 hours a day and make daily visits to the facility.
Since we are a non-medical facility, why is TCADA requiring us to have a nurse
on site 24 hours a day? If this rule is implemented, I do not see how programs
can continue to provide detox services at the rate we are being reimbursed.
I do understand this would be a must if we were a medical detox. We operate
the only detox program in our region. It is a sub-acute program with an average
daily census of three. We operated a program with 24-hour nursing coverage
several years ago and had to eliminate that level of staffing due to the expense.
We could not afford to provide detox services with this added expense unless
there was an increase in unit rates or an increase in the number of funded
beds to offset the additional expense.
Response: Under the current rules, detox programs cannot accept clients
with acute withdrawal symptoms or a history of acute withdrawal symptoms unless
nursing staff are on duty 24-hours per day. The commission is concerned that
the individuals most in need of supervised detoxification cannot get services
at TCADA-funded programs. This is particularly problematic when a region has
only one detox program. However, the commission recognizes that some current
programs are too small to achieve the economies of scale needed to provide
24-hour nursing coverage. The rule has been modified to require nursing coverage
for eight hours every day. The requirement for detox experience has been deleted,
but the current requirement for all direct care staff (including nurses) to
receive detox training has been restored.
The following comments were received regarding §148.406. Additional
Requirements for Level II, III, and IV Residential Services.
Comment: Subsection (f) requires staff to conduct and document at least
three checks while clients are sleeping. For many facilities, there doesn't
seem to be a programmatic need to document and check on clients three times
per night while they are sleeping. Depending on the way the facility is designed,
it could actually serve as deterrent for eight hours of continuous sleep.
The activity of the night shift should be a personnel and staffing responsibility
for the facility. Therefore, we recommend eliminating this specific requirement
and replacing it with something that allows more flexibility for the program
to develop night staff duties that assure the client's health and safety is
being monitored during overnight hours.
Response: The commission believes that a population in need of residential
treatment should be regularly monitored. The rule does not require intrusive
action on the part of staff and is not burdensome. The documentation can be
easily met with a staff activity log.
Comment: Subsection (h) states that meals must provide a balanced and nutritious
diet and requires records of menus as served to be filed and maintained for
30 days after the date of the serving. The old rules provide necessary assurances
that programs are preparing nutritious meals by requiring dietician-approved
menus and written guidelines for substitutions. Requiring that menus be filed
for 30 days seems like extra work and could result in nothing more than a
carbon copy of what is already in the menu book.
Response: The new rule is less expensive and gives facilities greater flexibility.
If a facility uses a set of rotating menus, staff can simply document which
menus were served, noting any substitutions made. The language has been revised
to delete the reference that menus must be filed.
Comment: Subsection (d) requires counseling staff on duty at least 12 hours
per day. Programs will need to hire additional counseling staff to meet this
requirement, substantially increasing the cost of services. The number of
hours a counselor must be on duty should be based on program design. We would
agree a counselor needs to be on call and accessible, but it does not seem
necessary to have one on site if there is no counseling activity scheduled.
If appropriately trained direct care staff are on site to supervise and ensure
client safety, an on-call and available counselor should suffice to ensure
client safety. Please define "counseling staff" and "on duty."
Response: The commission disagrees that counselors are only needed when
counseling services are scheduled. Clients in residential treatment need intensive
treatment and benefit from informal contacts with counseling staff, especially
if they have difficulty expressing themselves in groups. Evenings and weekends
are also when peer support meetings and family visits usually occur, and these
activities can surface disturbing issues that clients need to process. However,
the commission also recognizes the cost impact on programs. The rule has been
modified to require counselors on duty for eight hours Monday through Saturday.
A counselor is defined in §148.1 as a qualified credentialed counselor,
a counselor intern, or a graduate intern. A new entry has been added to §148.1
defining on duty as present on the site to perform job duties.
The following comment was received regarding §148.411. Additional
Requirements for Adolescent Programs (Residential and Outpatient).
Comment: Subsection (d) states that the facility must allow regular communication
between an adolescent client and the client's family and shall not arbitrarily
restrict any communications without clear individualized justification documented
in the client record. "Regular" and "clear" need to be eliminated. They establish
a large area open for non-professional intrusion into program design and allows
for unlimited family complaints and TCADA retrospective judgment on a professional
counseling decision. If we have a general policy plus counselor progress notes
signed off on by a QCC the matter should be left to the treatment program.
We have a family program for the family and the whole matter of the client's
relation to the family while in treatment is an ongoing professional decision
based on knowledge during and after the initial assessment.
Response: The Texas Health and Safety Code, §321.002, directs the
commission to adopt rules that provide for "regular communication between
a minor patient and the patient's family, subject only to a restriction in
accordance with §576.006." The referenced statute allows a facility administrator
to impose a restriction if it is necessary for the patient's welfare, but
the reasons must be documented in the patient record. In the past, many chemical
dependency treatment facilities established program rules that arbitrarily
restricted communication of all residents without considering the rights and
needs of individual clients. The statute protects adolescents from unnecessary
isolation from family members and is also consistent with clinical research,
which shows that adolescent treatment is generally more successful when family
members are involved. Unrestricted family contact is not clinically appropriate
in all cases, and the statute allows the program to respond to such situations.
The current rule implements statutory provisions and does not remove the program's
ability to implement professional counseling decisions based on client needs.
The rule simply requires the decision to be specific to an individual client
and the clinical basis for the professional decision to be documented. The
following comments were received regarding §148.412. Correctional Facilities.
Comment: Subsection (a) states: "Programs located in correctional facilities
are not required to meet commission standards in areas under the control of
the correctional facility. Areas under the control of the correctional facility
do not include treatment services or staffing." A number of the treatment
and staffing requirements in this chapter conflict with current TDCJ contracts
and are not appropriate for therapeutic communities. This is the treatment
model TDCJ prefers and is a widely accepted and researched treatment model
for use within correctional settings. This small change has a huge impact
and would essentially collapse the current programs in SAFPs, jails, and prisons.
We urge TCADA not to change this rule.
Response: The commission will continue the current exemption related to
treatment services for a limited period of time. During that time, the commission
will work with TDCJ and providers to develop a separate set of standards for
therapeutic communities in TDCJ facilities.
Comment: Subsection (b) relates to community-based programs accepting TDCJ
clients. These programs should be able to accept physicals and psychosocial
histories completed in a correctional setting the same way they can accept
such documents from other community-based providers.
Response: A facility may accept a psychosocial history from an outside
source if it meets the commission's standards, was completed 30 days preceding
admission or is received directly from a facility that is transferring the
client, and is updated at the time of the client's admission. A facility may
accept a medical history and physical examination completed up to 30 days
before admission or received from the referring facility. It does not matter
whether the document is received from a correctional or a community-based
facility.
Comment: Subsection (c) states that the commission may grant variances
to community-based treatment facilities that contract with correctional authorities
when correctional requirements conflict with commission requirements. If TDCJ
is allowed to contract for treatment services with private companies who are
required to meet TCADA standards, the "may" needs to be removed. This type
of provision puts treatment facilities in an untenable regulatory and legal
position when the state agencies have unresolved conflicts.
Response: The commission has worked with TDCJ to avoid unresolved conflicts
in this area and will continue to do so.
The following comment was received regarding §148.413. Court Commitment
Services.
Comment: I am concerned about accepting clients who have not been screened
prior to admission. The new rule will cause a lot of problems for providers.
We do accept court commitments, but we are not equipped to care for clients
who are not medically or psychiatrically stable.
Response: This is not a new rule. Statute requires judges to name the facility
to which a client is committed in the order. The facility does not have the
option to refuse to take a client committed to its care through the court
order. If the program cannot handle the client, the program must petition
the court to revise the order. Inappropriate referrals can usually be averted
by establishing a close working relationship with referring judges. The rules
state, "The program shall provide the judiciary with sufficient written information
about its program design, treatment methods, admission processes, lengths
of stay and continuum of care to assist the judiciary in committing appropriate
clients to the facility."
The following comments were received regarding §148.421. Screening
and Admission Authorization.
Comment: Subsection (e) states that a qualified professional must conduct
a face-to-face examination of each applicant to establish the Axis I diagnosis,
assess withdrawal potential, and determine the need for treatment and the
type of treatment to be provided. The word applicant needs to be addressed
here as well as face-to-face. Some facilities do their screening over the
telephone because potential clients are coming from some distance away. If
the face-to-face requirement is in effect, it may deter people from getting
into treatment. Does TCADA really mean every person who applies? We think
client is a more appropriate and readily understandable term.
Response: The rule does not prohibit telephone screening. When the individual
arrives at the facility, however, a QCC must conduct a face-to-face examination
to verify the results of the screening and authorize the admission. The term
"client" applies only to a person who has been formally admitted into a treatment
program. Until then, the person is an applicant.
Comment: Subsection (e) appears to move all prescreen and admission activity
solely into the realm of the Qualified Credentialed Counselor. Programs often
use interns to conduct these examinations and a QCC to supervise and provide
guidance. In many programs, there is only one QCC for every five interns.
It is often difficult for programs to employ more QCCs, either because of
the cost factor or because of a shortage of qualified applicants. This is
particularly true in rural areas. And if a QCC must conduct the examination
from start to finish, how does an intern receive training in this area? We
suggest continuing to allow an intern supervised by a QCC to conduct the examination.
Response: State law requires a QCC to evaluate an applicant in person before
authorizing admission. The commission has revised the language of the rule
to clarify that an intern may conduct a screening provided a QCC evaluates
the applicant in person to verify the results of the screening and authorize
the admission.
The following comments were received regarding §148.422. Intake and
Consent to Treatment.
Comment: Subsection (b) requires the facility to obtain written authorization
from the consenter before providing any treatment or medication. An exception
needs to be noted for detoxification services. Often the client is in no condition
to fully understand or even sign a written authorization before treatment
is given.
Response: Subsection (d) provides such an exception.
Comment: Subsection (c) requires the facility to provide extensive information
to the client and consenter before admission, including the name of the primary
counselor. The identity of the primary counselor is often not known at that
time. We would like the commission to consider changing "before admission"
to "following admission" or "during the admission process." If that is not
possible, at least exclude the name of the primary counselor.
Response: The Texas Health and Safety Code, §462.009 requires this
information to be provided before admission so the applicant can make a fully
informed decision whether to consent to treatment. The statute specifically
includes the name of the primary counselor.
Comment: Subsection (e) requires a signed copy of the client bill of rights
to be placed in the client record. There is no reason why a signed copy of
the client bill of rights (and not other documents such as program rules,
grievance procedure, etc.) needs to be in the client record when a single
signed and dated cover form listing all documents discussed and provided can
(and should) suffice.
Response: The Texas Health and Safety Code, §321.002 specifically
requires a signed copy of the client bill of rights to be filed in the client
record.
The following comments were received regarding §148.423. Initial Assessment.
Comment: Subsection (a) revises the list of items required in the initial
assessment. The rule now requires information about the client's spiritual
orientation. What does this mean? And, is it legal to ask that? The proposed
rule requires the initial assessment to include childhood history. While some
understanding of this topic is appropriate for the adolescent client, it has
no place and is therefore unnecessary with the adult population. Few substance
abuse counselors operate from an analytic model where childhood experiences
are considered important variables in adult pathology. The 13 topics listed
in the current §148.301 are much clearer because they are not as brief
(which equates to vague) as those being proposed. Recommendation: Return to
the old list of 13 topics.
Response: The rule has been revised to require the same 13 categories required
under current rules; however, details that are not broadly applicable to most
clients have been eliminated.
Comment: Subsection (b) requires the facility to obtain a comprehensive
mental health assessment performed by a qualified mental health professional
if the screening identifies a potential mental health problem. What is the
definition of qualified mental health professional?
Response: A definition for qualified mental health professional has been
added to §148.1.
Comment: Subsection (b) puts financial responsibility on the substance
abuse treatment facility for a comprehensive assessment. If the rule is approved,
further clarification is needed regarding the seriousness of the mental health
status of those who might require the comprehensive assessment. Unless the
client has Medicaid or Medicare, the only available resource is the local
mental health authority, which only treats people with very serious mental
disorders. If the client is seen, there is no guarantee that a comprehensive
assessment will be given. Any other organization can only administer according
to the constraints of their screening, funding, policies and procedures. A
comprehensive mental health assessment is a very expensive demand. If the
numbers are high, this rule will not be financially feasible. Furthermore,
I submit to you that the money expended on one evaluation for a client experiencing
symptoms of dysthymic disorder is better spent on providing chemical dependency
treatment for all clients. At any rate wherever the word comprehensive appears,
I suggest the wording change.
Response: The rule has been modified to require the provider to obtain
an assessment from a licensed mental health professional and seek appropriate
mental health services when resources for mental health assessments and/or
services are available internally or through referral at no additional cost
to the program. The rule has also been expanded to allow an LCDC with 45 educational
hours in mental health and 2,000 hours of documented work experience under
the supervision of a qualified mental health professional to provide these
services, consistent with the commission's scope of practice statement for
LCDCs.
Comment: Subsection (g) requires a health assessment within 96 hours. Physicals
performed by TDCJ or juvenile facilities where there is a direct transfer
of the client or less than a 30 day break in service need to be acceptable
after review of program staff.
Response: The rule has been revised to allow programs to accept a health
assessment completed up to 30 days prior to admission or received from a facility
from which the client is transferred.
The following comments were received regarding §148.424. Treatment
Planning and Implementation.
Comment: I was looking for some statement which stipulates the time frame
in which a treatment plan must be completed. Is it located somewhere else
or is it purposefully omitted?
Response: It was inadvertently omitted. The current requirement for completion
within five individual service days has been restored.
Comment: Subsection (g) requires all services and interventions to be documented
in the client record within 24 hours. We disagree with this language specifically
as it pertains to therapeutic communities-"all services" is too broad.
Response: The rule has been clarified to require documentation of education,
life skills training, and counseling sessions with the specified time frame.
Comment: Subsection (g) requires all services and interventions to be documented
in the client record within 24 hours. Documentation is an important piece
of treatment in today's health care environment. But the additional requirement
that individual group counseling notes be done within 24 hours needs to be
considered in the overall picture of cost. It seems to be a simpler process
to complete notes following an individual session than completing individual
notes after each group session. Acceptable ways to streamline this process
should be provided by TCADA.
Response: Frequency of individual counseling varies from weekly to monthly,
and these time frames are too long to wait before documenting services delivered.
Individual documentation of group sessions is a standard expectation in the
health care industry and required for third party payment. The commission
has provided samples of streamlined formats and suggested procedures to minimize
time spent on documentation and will continue to do so. The rule has been
revised to allow up to 72 hours to complete documentation.
Comment: Subsection (i) requires the weekly summary note in residential
programs to be completed within 24 hours of the end of the treatment week.
We disagree with the 24-hour time frame as staff in residential programs may
be scheduled to be off work the following day. This time frame should be expanded.
Response: The rule has been revised to allow up to 72 hours to complete
documentation of services delivered.
The following comment was received regarding §148.426. Discharges.
Comment: I am requesting that TCADA review their rules regarding continuity
of care for persons who are dually diagnosed with mental illnesses. It is
not uncommon for individuals to be transferred to a facility without notice
to the receiving facility. It is my hope that we can continue to work to improve
the odds of recovery and the quality of life for persons affected with dual
diagnoses.
Response: Language has been added to the rules to require coordination
when a client is transferred to another facility.
The following comment was received regarding §148.502. Medication
Storage.
Comment: Subsection (d) requires the facility to ensure store stock prescription
medications are stored in a licensed pharmacy or physician's office and dispensed
by a pharmacist or physician. It is our understanding that a locked emergency
medication storage box is acceptable when accompanied by emergency standing
orders/protocols. It does not seem necessary to change this to a pharmacy.
Response: According to the Texas State Board of Pharmacy there is no exemption
that would allow such a kit to be maintained in a licensed chemical dependency
treatment facility outside of a licensed pharmacy or the physician's office.
The following comment was received regarding §148.504. Administration
of Medication.
Comment: Subsection (e) requires the signature of the staff person who
administered or supervised each dose. If signed at the bottom of page, shouldn't
initials as opposed to full signature suffice? This seems to be an acceptable
practice in other areas of healthcare.
Response: This practice is acceptable as described in §148.11. A definition
of signature has been added to clarify that the alternative methods of authentication
provided in §148.11 are acceptable.
The following comment was received regarding §148.601. General Physical
Plant Provisions.
Comment: Subsection (b) requires a residential program to have a certificate
of occupancy from the local authority. Not all localities issue certificates
of occupancy. Please consider adding the phrase "unless documentation that
the locality does not issue such certificates is provided."
Response: The rule has been revised as suggested.
The following comment was received regarding the deleted sections.
Comment: The sections of the current licensure standards that address Parents
and Their Dependent Children (§148.232), Structured Therapeutic Children's
Services (§148.233), Small Family Living Environments (§148.237),
Physical Plant Requirements for Children (§148.372) and Physical Plant
Requirements for Small Family Living Environments (§148.373) are not
included in the proposed standards. Is this a reflection of the future of
these programs? Does TCADA propose to discontinue residential programs for
women and children?
Response: The commission will continue to fund Specialized Female Treatment
and residential treatment for Women with Dependent Children. Rules relating
to specialized women's programs have been moved to Chapter 144 (Contract Requirements).
Although specific rules for small family living environments have been deleted,
facilities are still permitted to house clients in small family living environments.
If clients are supervised in the residence, the residential physical plant
requirements will be applied to these living situations. If clients simply
live in housing provided by the facility while attending an outpatient program,
the residence will not be subject to licensure.
Subchapter A. DEFINITIONS
40 TAC §148.1
The new rules are adopted under the Texas Health and Safety
Code, Chapter 464, which provides the Texas Commission on Alcohol and Drug
Abuse with the authority to adopt rules licensing chemical dependency treatment
facilities.
The code affected by the adopted new rules is the Texas Health and Safety
Code, Chapter 464.
§148.1.Definitions.
The following words and terms, when used in this chapter, shall have
the following meanings unless the context clearly indicates otherwise.
(1)
Abuse--An intentional, knowing, or reckless act or omission
by an employee, volunteer, or other individual working under the auspices
of a facility that causes or may cause death, emotional harm, or physical
injury to a client. Client abuse includes:
(A)
any sexual activity between facility personnel and a client;
(B)
corporal punishment;
(C)
nutritional or sleep deprivation;
(D)
efforts to cause fear;
(E)
the use of any form of communication to threaten, curse,
shame, or degrade a client;
(F)
restraint that does not conform with these rules;
(G)
coercive or restrictive actions taken in response to the
client's request for discharge or refusal of medication or treatment that
are illegal or not justified by the client's condition; and
(H)
any other act or omission classified as abuse by the Texas
Family Code, §261.001.
(2)
Adolescent--An individual 13 through 17 years of age whose
disabilities of minority have not been removed by marriage or judicial decree.
(3)
Adult--An individual 18 years of age or older, or an individual
under the age of 18 whose disabilities of minority have been removed by marriage
or judicial decree.
(4)
Advanced practice nurse--A registered nurse currently licensed
in Texas who is prepared for advanced practice and approved by the Texas State
Board of Nurse Examiners.
(5)
Aftercare--Structured services provided after a client
completes treatment that are designed to strengthen and support the client's
recovery and prevent relapse.
(6)
Assessment--An ongoing process through which the counselor
collaborates with the client and others to gather and interpret information
necessary for developing and revising a treatment plan and evaluating client
progress toward achievement of goals identified in the treatment plan, including
identification of the client's strengths, weaknesses, and problems/needs.
(7)
Brief interventions--Short-term practices designed to investigate
a potential problem and motivate an individual to begin to do something about
his or her substance abuse, either by natural, client-directed means or by
seeking additional treatment. Brief interventions are described in "Brief
Interventions and Brief Therapies for Substance Abuse" (Treatment Improvement
Protocol 34), published by the Center for Substance Abuse Treatment.
(8)
Brief therapy--A systematic, focused process that relies
on assessment, client engagement, and rapid implementation of change strategies.
Brief therapies are described in "Brief Interventions and Brief Therapies
for Substance Abuse" (Treatment Improvement Protocol 34), published by the
Center for Substance Abuse Treatment.
(9)
Chemical dependency--Substance abuse and substance dependence
as defined in the current edition of the Diagnostic and Statistical Manual
of Mental Disorders, published by the American Psychiatric Association.
(10)
Chemical dependency counseling--A collaborative process
conducted face-to-face that facilitates the client's progress toward mutually
determined treatment goals and objectives as described in "Addiction Counseling
Competencies: The Knowledge, Skills, and Attitudes of Professional Practice"
published by the Center for Substance Abuse Treatment.
(11)
Chemical dependency education--A planned, structured presentation
of information provided by qualified staff, which is related to chemical dependency
and includes a discussion of the material presented.
(12)
Chemical dependency treatment--A planned, structured,
and organized program designed to initiate and promote a person's chemical-free
status or to maintain the person free of illegal drugs. It includes, but is
not limited to, the application of planned procedures to identify and change
patterns of behavior related to or resulting from chemical dependency that
are maladaptive, destructive, or injurious to health, or to restore appropriate
levels of physical, psychological, or social functioning lost due to chemical
dependency.
(13)
Child abuse and neglect--Any act or omission that constitutes
abuse or neglect of a child by a person responsible for a child's care, custody,
or welfare as defined in the Texas Family Code §261.001.
(14)
Client--An individual who has been admitted to a chemical
dependency treatment program and is currently receiving services.
(15)
Commission--The Texas Commission on Alcohol and Drug Abuse.
(16)
Consenter--The individual legally responsible for giving
informed consent for a client. Unless otherwise provided by law, a legally
competent adult is his or her own consenter, and the consenter for an adolescent
is the adolescent's parent, guardian, or conservator. State law allows a person
16 or 17 years of age to consent to his or her own treatment.
(17)
Counselor--A qualified credentialed counselor, graduate,
or counselor intern.
(18)
Counselor intern (CI)--A person registered with the commission
who is pursuing a course of training in chemical dependency counseling at
an approved clinical training institution or a person enrolled at an accredited
institution of higher education completing an internship at a treatment program
as part of a degree or certificate program in chemical dependency counseling.
(19)
Direct care staff--Staff responsible for providing treatment,
care, supervision, or other direct client services that involve a significant
amount of face-to-face contact.
(20)
Discharge--Formal, documented termination from a treatment
facility. Discharge occurs when a client successfully completes treatment
goals, is transferred to another facility, leaves against professional advice,
or is terminated for other reasons.
(21)
DSM-IV--The Diagnostic and Statistical Manual of Mental
Disorders, Fourth Edition-Text Revision, published by the American Psychiatric
Association. Any reference to DSM-IV is understood to mean the most recent
edition of the Diagnostic and Statistical Manual of Mental Disorders.
(22)
Ensure--Take all reasonable and necessary steps to achieve
results.
(23)
Exploitation--The illegal or improper use of a client
or a client's resources for monetary or personal benefit, profit, or gain
by an employee, volunteer, or other individual working under the auspices
of a facility.
(24)
Facility--A legal entity with a single governing body,
a single administration, and a single staff that provides chemical dependency
treatment.
(25)
Graduate--An individual who has successfully completed
the 270 hours of education, 300 hour practicum, and 4,000 hours of supervised
work experience required to become a licensed chemical dependency counselor
in the state of Texas but has neither received a license nor failed the examination
the maximum number of times allowed by law.
(26)
HIV--Human Immunodeficiency Virus infection.
(27)
Individual service day--A day on which a specific client
receives services.
(28)
Intake--The administrative process for gathering information
about a prospective client and giving a prospective client information about
the facility and its treatment and services.
(29)
Licensed chemical dependency counselor--A counselor licensed
by the Texas Commission on Alcohol and Drug Abuse.
(30)
Licensed health professional--A physician, physician assistant,
advance practice nurse, or registered nurse, or licensed vocational nurse
authorized to practice in the state of Texas.
(31)
Life skills training--A formalized program of training,
based upon a written curriculum and provided by qualified staff, designed
to help clients with communication and social interaction, stress management,
problem solving, decision making, and managing daily responsibilities.
(32)
Mechanical restraint--Use of a physical device to control
or restrict a person's physical movement or actions.
(33)
Medical emergency--A medical condition with acute symptoms
of sufficient severity that a prudent layperson could reasonably expect the
absence of immediate medical attention to result in death or serious harm.
(34)
Medication error--Medication not given according to the
written order by the prescribing professional or as recommended on the medication
label. Medication errors include duplicate doses, missed doses, and doses
of the wrong amount or drug.
(35)
Motivational Interviewing--A therapeutic style intended
to help counselors work with clients to address their ambivalence and enhance
motivation for positive change. Motivational interviewing is described in
"Enhancing Motivation for Change in Substance Abuse Treatment" (Treatment
Improvement Protocol 35), published by the Center for Substance Abuse Treatment.
(36)
Neglect--A negligent act or omission by an employee, volunteer,
or other individual working under the auspices of a facility, that causes
or may cause death or substantial emotional harm or physical injury to a client.
Examples of neglect include, but are not limited to:
(A)
failure to provide adequate nutrition, clothing, or health
care;
(B)
failure to provide a safe environment free from abuse;
(C)
failure to maintain adequate numbers of appropriately trained
staff;
(D)
failure to establish or carry out an appropriate individualized
treatment plan; and
(E)
any other act or omission classified as neglect by the
Texas Family Code, §261.001.
(37)
On duty--Present on the site to perform job duties.
(38)
Person--An individual, firm, partnership, corporation,
association, or other business or professional entity.
(39)
Personal restraint--Physical contact to control or restrict
a person's physical movement or actions.
(40)
Personnel--Members of the governing body, employees, contract
providers, consultants, agents, representatives, volunteers, and other individuals
working on behalf of the facility through a formal or informal agreement.
(41)
Private practice--Unless otherwise defined by a licensing
board, an individual's professional counseling practice in which the individual:
(A)
provides all treatment services personally;
(B)
does not report to a supervisor or utilize subordinate
counseling staff; and
(C)
is a licensed chemical dependency counselor or exempt from
licensure.
(42)
Program--A specific level of chemical dependency treatment
delivered to a specific client population at a specific location.
(43)
Psychiatric emergency--A condition that requires immediate
intervention and/or medical attention to prevent an individual from presenting
an immediate danger to self or others, or which causes the individual to be
incapable of controlling, knowing, or understanding the consequences of his
or her actions.
(44)
Qualified credentialed counselor (QCC)--A licensed chemical
dependency counselor or one of the professionals listed below who is licensed
and in good standing in the state of Texas and has at least 1,000 hours of
documented experience working with people who have substance use disorders:
(A)
licensed professional counselor (LPC);
(B)
licensed master social worker (LMSW);
(C)
licensed marriage and family therapist (LMFT);
(D)
licensed psychologist;
(E)
licensed physician;
(F)
registered nurse (RN) holding the credential of certified
addictions registered nurse (CARN); and
(G)
advance practice nurse recognized by the Board of Nurse
Examiners as a clinical nurse specialist or nurse practitioner with a specialty
in psyche-mental health (APN-P/MH).
(45)
Qualified mental health professional--A qualified mental
health professional as defined in the Texas Administrative Code, Part 2, Chapter
401, Subchapter J.
(46)
Refer--Identify appropriate services and provide information
and assistance needed to access them.
(47)
Residential site--A site owned, leased, or operated by
the facility where clients who are receiving chemical dependency treatment
or aftercare stay in a supervised 24-hour living environment.
(48)
Retaliate--Adverse actions taken to punish or discourage
a person who reports a violation or cooperates with an investigation, inspection,
or proceeding. Such actions include but are not limited to suspension or termination
of employment, demotion, discharge, transfer, discipline, restriction of privileges,
harassment, and discrimination.
(49)
Screening--The process by which a client is determined
appropriate and eligible for admission to a particular program and through
which the counselor, client, and available significant others determine the
most appropriate initial course of action, given the client's needs and characteristics
and the available resources within the community.
(50)
Seclusion--Isolating a client in a room from which exit
is prevented.
(51)
Sexual exploitation--A pattern, practice, or scheme of
conduct that can reasonably be construed as being for the purposes of sexual
arousal or gratification or sexual abuse of any person. It may include sexual
contact, a request for sexual contact, or a representation that sexual contact
or exploitation is consistent with or part of treatment.
(52)
Signature--Authentication of a record that meets the criteria
established in §148.11 of this title (relating to General Documentation
Requirements).
(53)
Staff--Individuals working for the facility in exchange
for money or other compensation.
(54)
Unethical conduct--Conduct prohibited by the ethical standards
adopted by state or national professional organizations or by rules established
by a profession's state licensing agency.
(55)
Unprofessional conduct--An act or omission that violates
commonly accepted standards of behavior for individuals or organizations.
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 August 9, 2001.
TRD-200104606
Karen Pettigrew
General Counsel
Texas Commission on Alcohol and Drug Abuse
Effective date: September 1, 2001
Proposal publication date: June 22, 2001
For further information, please call: (512) 349-6607
40 TAC §§148.11, 148.21 - 148.28, 148.31
The new rules are adopted under the Texas Health and Safety
Code, Chapter 464, which provides the Texas Commission on Alcohol and Drug
Abuse with the authority to adopt rules licensing chemical dependency treatment
facilities.
The code affected by the adopted new rules is the Texas Health and Safety
Code, Chapter 464.
§148.23.New Licensure Application.
(a)
An applicant for initial licensure shall submit a complete
licensure application with an application fee.
(b)
Within 45 days of receipt of the application, the commission
shall notify the applicant that the application is complete or specify the
additional information required.
(c)
The applicant shall submit all requested materials and
correct any deficiencies identified by the commission within the specified
time frames.
(d)
If an on-site inspection is necessary, the commission will
conduct the inspection within 45 days of receiving a satisfactory version
of requested materials. The commission will notify the provider of any deficiencies
identified during an on-site inspection within 30 days, and the provider shall
provide evidence of sufficient corrective action within the timeframe specified
in the inspection report.
(e)
The commission will issue the license within 45 days of
receiving all required evidence of compliance and all required fees.
(f)
If an applicant fails to provide evidence of compliance
within six months from the date the application is received, the application
will be denied. Six months after the date of denial, the applicant may reapply
by submitting a new application and application fee.
(g)
The applicant shall not provide chemical dependency treatment
services before receiving written notice of licensure approval.
(h)
The facility shall display the licensure certificate prominently
at the headquarters location and each approved residential site.
§148.25.Changes in Status.
(a)
A facility shall submit the appropriate application and
fees and receive written approval before adding a new Level I service, adding
a new residential site, moving to a new residential location, or increasing
the number of beds in a residential program.
(b)
If the facility fails to provide evidence of compliance
within six months from the date the application for a change in status is
received, the application will be denied. Six months after the date of denial,
the facility may reapply by submitting a new application and application fee.
(c)
The facility shall notify the commission in writing of
each location where outpatient services will be provided and shall not provide
services at a new outpatient location until it has received written acknowledgement
that the commission has received the notice.
(d)
The provider shall also notify the commission's licensure
department in writing before:
(1)
adding a new Level II, III, or IV service;
(2)
providing services to a new age group or gender;
(3)
changing the organization's name; or
(4)
increasing the number of outpatient slots.
(e)
The provider shall notify the commission in writing within
30 days if it:
(1)
closes a residential site or outpatient location;
(2)
decreases the number of residential beds or outpatient
slots; or
(3)
discontinues a level of service.
§148.31.Action Against a License.
(a)
The commission shall take action against a facility if
an applicant, licensee, owner, member of the governing body, administrator,
or clinical staff member of the facility:
(1)
has a documented history of client abuse or neglect;
(2)
violates any provision of the Texas Health and Safety Code,
Chapter 464, or any other applicable statute, or a commission rule; or
(3)
owes the commission money.
(b)
Action taken may include:
(1)
suspending or revoking a license;
(2)
refusing to renew a license;
(3)
placing a facility on probation when the facility's license
has been suspended;
(4)
imposing an administrative penalty; and
(5)
issuing a reprimand.
(c)
The commission will determine the length of probation or
suspension. The commission may hold a hearing at any time and revoke probation
or suspension.
(d)
Surrender or expiration of a license does not interrupt
an investigation or action taken against a license. The facility is not eligible
to regain the license until all outstanding investigations, disciplinary proceedings,
or hearings are resolved.
(e)
A facility whose license has been revoked is not eligible
to apply for licensure until two years have passed since the date of revocation.
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 August 9, 2001.
TRD-200104607
Karen Pettigrew
General Counsel
Texas Commission on Alcohol and Drug Abuse
Effective date: September 1, 2001
Proposal publication date: June 22, 2001
For further information, please call: (512) 349-6607
40 TAC §§148.101 - 148.103, 148.105, 148.106, 148.111 - 148.113, 148.115
The new rules are adopted under the Texas Health and Safety
Code, Chapter 464, which provides the Texas Commission on Alcohol and Drug
Abuse with the authority to adopt rules licensing chemical dependency treatment
facilities.
The code affected by the adopted new rules is the Texas Health and Safety
Code, Chapter 464.
§148.102.Policies, Procedures, and Licensure Rules.
(a)
The facility shall adopt and implement written policies
and procedures specified in this section. The policies and procedures shall
contain sufficient detail to ensure compliance with the referenced commission
rules.
(b)
All programs shall have policies and/or procedures related
to the following rules:
(1)
Section 148.103 of this title (relating to Standards of
Conduct);
(2)
Section 148.112 of this title (relating to Client Records);
(3)
Section 148.113 of this title (relating to Significant
Incident Reports);
(4)
Section 148.115 of this title (relating to Client Transportation);
(5)
Section 148.302 of this title (relating to Client Grievances);
(6)
Section 148.303 of this title (relating to Client Abuse,
Neglect, and Exploitation); and
(7)
Section 148.313 of this title (relating to Restraint and
Seclusion).
(c)
Residential programs must also have procedures related
to the following rules:
(1)
Section 148.315 of this title (relating to Responding to
Emergencies);
(2)
Section 148.316 of this title (relating to Searches);
(3)
Section 148.411 of this title (relating to Additional Requirements
for Adolescent Programs (Residential and Outpatient)), subsection (l), if
applicable;
(4)
Sections 148.501-148.504 of this title (relating to General
Provisions for Medication; Medication Storage; Medication Inventory and Disposal;
and Administration of Medication); and
(5)
Section 148.603 of this title (relating to Emergency Evacuation).
(d)
The policy and procedure manual shall be current, in compliance
with current licensure rules, individualized to the program, and easily accessible
to all staff at all times.
§148.113.Significant Incident Reports.
(a)
Staff shall complete an incident report for all significant
client incidents, including:
(1)
incidents of actual or suspected abuse, neglect, exploitation,
or other violation of client rights;
(2)
accidents and injuries;
(3)
medical emergencies;
(4)
psychiatric emergencies;
(5)
medication errors;
(6)
illegal or violent behavior;
(7)
loss of a client record;
(8)
personal or mechanical restraint or seclusion;
(9)
release of confidential information without client consent;
(10)
fire or significant disruption of program operation (including
disruption due to insufficient staffing);
(11)
death of an active outpatient or residential client (on
or off the program site); and
(12)
clients absent without permission from a residential program.
(b)
The incident report shall be completed within 24 hours
and shall provide a detailed description of the event, including the date,
time, location, individuals involved, and action taken.
(c)
The person writing the report shall sign it and record
the date and time it was completed.
(d)
Incident reports shall be stored in a central file.
(e)
The facility shall have a designated individual responsible
for reviewing incident reports. When indicated, the facility shall implement
corrective action to prevent similar incidents from occurring.
(f)
Alleged client abuse, neglect, and exploitation shall be
reported to the commission's investigations division as described in §148.303
of this title (relating to Client Abuse, Neglect, and Exploitation).
(g)
Incidents within the following categories that do not meet
the definition of abuse, neglect, or exploitation shall be reported to the
commission's investigations division within 72 hours:
(1)
all fires;
(2)
substantial disruption of program operation;
(3)
death of an active client (on or off the program site);
(4)
suicide attempt by an active client (on or off the program
site);
(5)
medical and psychiatric emergencies that result in admission
to an inpatient unit of a medical or psychiatric facility;
(6)
illegal behavior on the program site; and
(7)
violent behavior on the program site that results in injury
or a police report; and
(8)
use of personal or mechanical restraint or seclusion.
(h)
The facility shall report all illegal drugs and other contraband
found on the facility site to law enforcement authorities.
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 August 9, 2001.
TRD-200104608
Karen Pettigrew
General Counsel
Texas Commission on Alcohol and Drug Abuse
Effective date: September 1, 2001
Proposal publication date: June 22, 2001
For further information, please call: (512) 349-6607
40 TAC §§148.201 - 148.203, 148.205
The new rules are adopted under the Texas Health and Safety
Code, Chapter 464, which provides the Texas Commission on Alcohol and Drug
Abuse with the authority to adopt rules licensing chemical dependency treatment
facilities.
The code affected by the adopted new rules is the Texas Health and Safety
Code, Chapter 464.
§148.201.Hiring Practices.
(a)
A facility-using counselor interns shall be registered
with the commission as a clinical training institution and comply with all
applicable requirements.
(b)
The facility shall verify the current status of all required
credentials with the credentialing authority by phone or letter.
(c)
The facility shall comply with all applicable laws, including
the Texas Civil Practice and Remedies Code, §81.003, which relates to
employment reference checks.
(d)
The facility shall obtain and assess the results of a statewide
criminal background check from the Department of Public Safety on all staff
within six weeks of the date of hire. The facility shall use the criteria
listed in the Texas Occupations Code, §53.022 and §53.023 to evaluate
criminal history reports and make related employment decisions.
(e)
The facility shall not hire an individual who has not passed
a pre-employment drug test that meets criteria established by the commission.
(f)
The facility shall maintain a personnel file for each staff
member with documentation demonstrating compliance with this section.
§148.203.Staff Training.
(a)
Each staff person shall complete initial training during
the first 30 calendar days of employment. The initial training shall include
discussion of licensure rules relating to:
(1)
client rights;
(2)
client grievance procedures;
(3)
confidentiality of client-identifying information;
(4)
client abuse, neglect, and exploitation;
(5)
requirements for reporting abuse, neglect, and other serious
incidents;
(6)
standards of conduct; and
(7)
emergency and evacuation procedures.
(b)
The facility shall provide training in issues relating
to abuse, neglect, and exploitation and illegal, unprofessional, and unethical
conduct to all staff who have any client contact.
(1)
This training shall comply with the interagency memorandum
of understanding on abuse training (see §148.205 of this title (relating
to Training Requirements Relating to Abuse, Neglect, and Unprofessional or
Unethical Conduct)).
(2)
Full time staff in residential programs must receive at
least eight hours every year, and full time staff in outpatient programs must
receive at least two hours every year. Hours of training for part time staff
may be determined by the facility based on the number of hours worked and
the amount of direct client contact.
(c)
All direct care staff shall complete four hours of training
related to tuberculosis, HIV, Hepatitis B and C, and sexually transmitted
diseases during the first 90 days of employment.
(1)
The training must be based on the Texas Commission on Alcohol
and Drug Abuse Workplace and Education Guidelines for HIV and Other Communicable
Diseases.
(2)
The facility shall provide all staff with updated information
about these diseases every two years.
(d)
All direct care staff in residential programs shall have
current certification in CPR within 90 days of hire. Licensed health professionals
are exempt, and personnel in licensed medical facilities are exempt if emergency
resuscitation equipment and trained response teams are available 24 hours
a day.
(e)
All direct care staff in residential programs and in Level
I, II, and III outpatient programs shall have at least four hours of face-to-face
training in nonviolent crisis intervention during the first 90 days of employment.
(1)
The instructor shall have successfully completed a course
for crisis intervention instructors or have equivalent training and experience.
(2)
The training shall teach staff how to use verbal and other
non-physical methods for prevention, early intervention, and crisis management.
(f)
All direct care staff working in programs that use restraint
or seclusion shall have face-to-face training and competency in the safe methods
of the specific procedures used within 90 days of hire. This includes all
direct care staff working in adolescent residential programs, detoxification
programs, and programs that accept emergency detentions. The training shall
last approximately four hours and shall include hands-on practice under the
supervision of a qualified instructor.
(g)
Each staff member who conducts intakes or screens applicants
for admission shall complete eight hours of training in the program's intake
and screening procedures annually.
(1)
The first eight hours must be completed during the first
90 days of employment and before a staff member conducts intakes or screens
applicants for admission.
(2)
The training shall cover the DSM-IV diagnostic criteria
for substance-related disorders, and shall also include at least two hours
annually on other mental health diagnoses.
(h)
All staff members responsible for supervising clients in
self-administration of medication who are not credentialed to administer medication
shall complete at least two hours of documented training from a physician,
pharmacist, physician assistant, or registered nurse before performing this
task. The training is required one time and shall be completed during the
first 90 days of employment. It shall include:
(1)
prescription labels;
(2)
medical abbreviations;
(3)
routes of administration;
(4)
use of drug reference materials;
(5)
storage, maintenance, handling, and destruction of medication;
(6)
documentation requirements; and
(7)
procedures for medication errors, adverse reactions, and
side effects.
(i)
All counselors working in adolescent programs shall have
or receive at least eight hours of specialized education or training in emotional,
mental health and chemical dependency problems specific to adolescents and
appropriate adolescent treatment strategies. This training must be completed
within the first 90 days of employment.
(j)
All direct care staff working in detoxification programs
shall complete detoxification training during the first 90 days of employment.
The training is required one time only and shall be provided by a physician,
physician assistant, advanced practice nurse, or registered nurse with at
least one year of documented experience in detoxification. It shall include:
(1)
signs of withdrawal;
(2)
observation and monitoring procedures;
(3)
pregnancy-related complications (if the program admits
women);
(4)
complications requiring transfer;
(5)
appropriate interventions; and
(6)
frequently-used medications, including purpose, precautions,
and side effects.
(k)
The amount and type of training for contract personnel
shall be based on the amount of time spent at the facility, degree of client
contact, and individual qualifications and responsibilities.
(l)
Unless otherwise specified, video, manual, or computer-based
training is acceptable if the supervisor discusses the material with the staff
person in a face-to-face session to highlight key issues and answer questions.
(m)
The facility may accept documented training from another
organization completed during the year prior to employment if it meets commission
requirements.
(n)
The facility shall maintain documentation of all required
training for each staff person.
§148.205.Training Requirements Relating to Abuse, Neglect, and Unprofessional or Unethical Conduct.
(a)
Introduction. The commission is a party to a joint memorandum
of understanding (MOU) with the Texas Department of Health and the Texas Department
of Mental Health and Mental Retardation concerning training requirements for
identifying abuse, neglect, and unprofessional or unethical conduct in health
care facilities.
(b)
Memorandum of understanding (MOU). The purpose of the MOU
is to implement certain requirements enacted by Acts 1993, 73rd Legislature,
Regular Session, Chapter 573 (Senate Bill 210), which amends the Texas Health
and Safety Code, Chapter 161, by adding Subchapter K, relating to, "abuse,
neglect, and unprofessional or unethical conduct in health care facilities."
Section 161.133 requires the Texas Board of Mental Health and Mental Retardation
(TXMHMR), the Texas Board of Health (TDH) and the Texas Commission on Alcohol
and Drug Abuse (TCADA) to adopt by rule a joint MOU, as set out below, detailing
the health facility inservice training requirement for identifying patient
abuse or neglect and illegal, unprofessional, or unethical conduct by or in
the health care facility. In accordance with the referenced legislation, each
health care facility is required to annually provide, as a condition of continued
licensure, a minimum of eight hours of inservice training designed to assist
employees and health care professionals associated with the facility in identifying
patient abuse or neglect and illegal, unprofessional, or unethical conduct
by or in the facility, as such terms are defined in Health and Safety Code,
Subchapter K, Chapter 161. Accordingly, TXMHMR, TDH, and TCADA agree as follows.
(c)
Application. If a health care facility provides inpatient
mental health, chemical dependency, or comprehensive medical rehabilitation
services in a separate and distinct unit of the hospital, the requirements
of this MOU shall apply to all employees and associated health care professionals
who are assigned to, or who provide services on such units.
(d)
Definitions. The following words and terms, when used in
this section, shall have the following meanings, unless the context clearly
indicates otherwise.
(1)
Health care facility--An inpatient mental health facility,
inpatient treatment facility, or hospital that provides comprehensive medical
rehabilitation services.
(2)
Hospital that provides comprehensive medical rehabilitation
services--Includes a general hospital and a special hospital.
(3)
Illegal conduct--Conduct prohibited by law.
(4)
Inpatient mental health facility--As defined in Texas Health
and Safety Code Chapter §571.003, a mental health facility that can provide
24-hour residential and psychiatric services and that is:
(A)
a facility operated by the TXMHMR;
(B)
a private mental hospital licensed by the TDH;
(C)
a community center;
(D)
a facility operated by a community center or other entity
designated by the TXMHMR to provide mental health services;
(E)
an identifiable part of a general hospital in which diagnosis,
treatment, and care for persons with mental illness is provided and that is
licensed by the TDH; or
(F)
a hospital operated by a federal agency.
(5)
Inpatient treatment facility--A treatment facility that
can provide 24-hour residential and chemical dependency services and that
is:
(A)
a public or private hospital;
(B)
a detoxification facility;
(C)
a primary care facility;
(D)
an intensive care facility;
(E)
a long-term care facility;
(F)
a community mental health center;
(G)
a recovery center;
(H)
a halfway house;
(I)
an ambulatory care facility; or
(J)
any other facility that offers or purports to offer chemical
dependency treatment.
(6)
Unethical conduct--Conduct prohibited by the ethical standards
adopted by state or national professional organizations for their respective
professions or by rules established by the state licensing agency for the
respective profession.
(7)
Unprofessional conduct--Conduct prohibited under rules
adopted by the state licensing agency for the respective profession.
(e)
Minimum standards of training program.
(1)
The inservice training program shall address, at a minimum,
the following elements:
(A)
Applicable laws and regulations governing patient abuse
and neglect, as well as policies and procedures adopted by the governing board
of the facility with regard to patient abuse and neglect.
(B)
Applicable laws and regulations governing illegal, unprofessional,
and unethical conduct, as well as policies and procedures adopted by the governing
board of the facility with regard to illegal, unprofessional, and unethical
conduct.
(C)
Applicable laws and regulations governing patient rights,
as well as policies and procedures adopted by the governing board of the facility
with respect to patient rights.
(D)
Specific types of patient abuse and neglect and how to
identify when abuse or neglect is occurring or has occurred.
(E)
Specific types of illegal, unprofessional, and unethical
conduct and how to identify when illegal, unprofessional, or unethical conduct
is occurring or has occurred.
(F)
Requirements and procedures for reporting an incident of
patient abuse and neglect, together with the applicable penalties for non-reporting.
(G)
Requirements and procedures for reporting illegal, unprofessional,
and unethical conduct, together with the applicable penalties for non-reporting.
(H)
The legal protection afforded to employees and associated
health care professionals who report patient abuse and neglect and illegal,
unprofessional, and unethical conduct.
(2)
In addition, the training program may include training
designed to improve patient care or to prevent abuse or neglect and illegal,
unprofessional, and unethical conduct from occurring. This additional training
may be customized according to the type of tasks performed by the various
employees and health care professionals, their amount of direct patient contact,
and the likelihood of their being exposed to patient abuse or neglect and
illegal, unprofessional, or unethical conduct. Courses related to improving
patient care may include things such as the "Prevention and Management of
Aggressive Behavior" (PMAB) or other programs designed to deal with aggressive
behavior and crisis intervention, some aspects of existing employee orientation
courses, and continuing education courses (continuing medical education, continuing
nursing education, continuing education unit) related to improving patient
care.
(3)
Each full-time employee or associated health care professional
shall receive a minimum of eight hours inservice training on identifying patient
abuse or neglect and illegal, unprofessional, or unethical conduct. The inservice
training program shall include the topics outlined in paragraph (1) of this
subsection; in addition, the training may include other topics as outlined
in paragraph (2) of this subsection.
(4)
Although each part-time employee or associated health care
professional must receive training as outlined in paragraphs (1) and (2) above,
the amount and type of training provided to each part-time employee or associated
health care professional may be determined based on a number of factors, including,
but not limited to:
(A)
the amount of direct contact the employee or associated
health care professional has with patients;
(B)
the amount of time the employee or associated health care
professional spends at the health care facility (for example, a consultant
who is at the hospital 20 hours a week versus a consultant who works at the
health care facility once a month).
(5)
An interim training program that does not meet the minimum
requirements set forth in subsection (e), paragraph (1), above, is acceptable
until June 1, 1994, to allow for development of a training program that meets
the minimum standards of this MOU.
(f)
Means of reporting compliance with requirements.
(1)
Each facility subject to the inservice training requirement
shall keep a record of the exact content of training provided.
(2)
Each facility subject to the inservice training requirement
shall furnish documentation to show that each employee has completed the required
training. Documentation shall include:
(A)
course title;
(B)
instructor's name;
(C)
date(s) of course(s);
(D)
employee or associate health professional's social security
number;
(E)
signature block for employee or associated health care
professional to verify that training was received and that he/she is aware
of the training objectives; and
(F)
length of program presented.
(3)
The health care facility shall keep the records required
in paragraphs (1) and (2) above for five years.
(4)
A health care facility that utilized an independent contracting
agency that supplies health care professionals and/or contract personnel to
serve on a full or part time basis in a health care facility may rely on written
representations by the independent contracting agency that such health care
professionals and/or contract personnel have received inservice training on
identifying patient abuse or neglect and illegal, unprofessional or unethical
conduct. An independent contracting agency shall meet all other requirements
of this MOU and shall supply evidence documenting each healthcare professional's
and/or contract personnel's compliance with such requirements.
(5)
Employees and associated health care professionals may
fulfill all or some of the training requirement by attending a continuing
education program on patient abuse or neglect or illegal, unprofessional,
or unethical conduct, provided such program meets the minimum requirements
set forth in subsection (e) paragraph (1) above. In addition, briefings regarding
the Code of Ethics for the appropriate discipline provided by the discipline
head or other individual may be used to fulfill a portion of the requirement.
(6)
Each health care facility shall be in compliance with the
annual requirement if it can demonstrate that each employee or associated
health care professional received the required training over a twelve month
period, and that the health care facility provided the required eight hours
of inservice training over the 12-month period.
(g)
Miscellaneous provisions.
(1)
This memorandum of understanding shall be jointly adopted
as a rule by the Texas Board of Mental Health and Mental Retardation, the
Texas Board of Health, and the Texas Commission on Alcohol and Drug Abuse
and shall be effective upon final joint adoption of the rules by the signatory
agencies.
(2)
This memorandum may be amended at any time upon the mutual
agreement of the agencies and such amendments shall also be made to the jointly
adopted rules.
(3)
Each agency shall review and modify the memorandum as necessary
not later than the last month of each state fiscal year.
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 August 9, 2001.
TRD-200104609
Karen Pettigrew
General Counsel
Texas Commission on Alcohol and Drug Abuse
Effective date: September 1, 2001
Proposal publication date: June 22, 2001
For further information, please call: (512) 349-6607
40 TAC §§148.301 - 148.303, 148.311 - 148.313, 148.315, 148.316
The new rules are adopted under the Texas Health and Safety
Code, Chapter 464, which provides the Texas Commission on Alcohol and Drug
Abuse with the authority to adopt rules licensing chemical dependency treatment
facilities.
The code affected by the adopted new rules is the Texas Health and Safety
Code, Chapter 464.
§148.301.Client Bill of Rights.
(a)
The facility shall respect and protect clients' rights.
The Bill of Rights shall include:
(1)
You have the right to a humane environment that provides
reasonable protection from harm and appropriate privacy for your personal
needs.
(2)
You have the right to be free from abuse, neglect, and
exploitation.
(3)
You have the right to be treated with dignity and respect.
(4)
You have the right to appropriate treatment in the least
restrictive setting available that meets your needs.
(5)
You have the right to be told about the program's rules
and regulations before you are admitted.
(6)
You have the right to be told before admission:
(A)
the condition to be treated;
(B)
the proposed treatment;
(C)
the risks, benefits, and side effects of all proposed treatment
and medication;
(D)
the probable health and mental health consequences of refusing
treatment; and
(E)
other treatments that are available and which ones, if
any, might be appropriate for you.
(7)
You have the right to accept or refuse treatment after
receiving this explanation.
(8)
If you agree to treatment or medication, you have the right
to change your mind at any time (unless specifically restricted by law).
(9)
You have the right to a treatment plan designed to meet
your needs, and you have the right to take part in developing that plan.
(10)
You have the right to meet with staff to review and update
the plan on a regular basis.
(11)
You have the right to refuse to take part in research
without affecting your regular care.
(12)
You have the right not to receive unnecessary or excessive
medication.
(13)
You have the right not to be restrained or placed in a
locked room by yourself unless you are a danger to yourself or others.
(14)
You have the right to have information about you kept
private and to be told about the times when the information can be released
without your permission.
(15)
You have the right to communicate with people outside
the facility. This includes the right to have visitors, to make telephone
calls, and to send and receive sealed mail. This right may be restricted on
an individual basis by your doctor or the person in charge of the program
if it is necessary for your treatment or for security, but even then you may
contact an attorney or the Texas Commission on Alcohol and Drug Abuse at any
reasonable time.
(16)
You have the right to be told in advance of all estimated
charges and any limitations on the length of services that the facility is
aware of.
(17)
You have the right to receive an explanation of your treatment
or your rights if you have questions while you are in treatment.
(18)
If you consented to treatment, you have the right to leave
the facility within four hours of requesting release unless a physician determines
that you pose a threat of harm to yourself and others.
(19)
You have the right to make a complaint and receive a fair
response from the facility within a reasonable amount of time.
(20)
You have the right to complain directly to the Texas Commission
on Alcohol and Drug Abuse at any reasonable time.
(21)
You have the right to get a copy of these rights before
you are admitted, including the address and phone number of the Texas Commission
on Alcohol and Drug Abuse.
(22)
You have the right to have your rights explained to you
in simple terms, in a way you can understand, within 24 hours of being admitted.
(b)
If a client's right to free communication is restricted
under the provisions of paragraph (15) of this section, the physician or program
director shall document the clinical reasons for the restriction and the duration
of the restriction in the client record. The physician or program director
shall also inform the client, and, if appropriate, the client's consenter
of the clinical reasons for the restriction and the duration of the restriction.
§148.302.Client Grievances.
(a)
The facility shall have a written client grievance procedure.
(b)
Staff shall give each client and consenter a copy of the
grievance procedure within 24 hours of admission and explain it in clear,
simple terms that the client understands.
(c)
The grievance procedure shall tell clients that they can:
(1)
file a grievance about any violation of client rights or
commission rules;
(2)
submit a grievance in writing and get help writing it if
they are unable to read or write;
(3)
request writing materials, postage, and access to a telephone
for the purpose of filing a grievance.
(d)
The procedure shall also inform clients that they can submit
a complaint directly to the commission at any time and include the current
mailing address and toll-free telephone number of the commission's investigation
division.
(e)
The facility shall have a written procedure for staff to
follow when responding to client grievances. The facility shall:
(1)
evaluate the grievance thoroughly and objectively, obtaining
additional information as needed;
(2)
provide a written response to the client within seven calendar
days of receiving the grievance;
(3)
take action to resolve all grievances promptly and fairly;
and
(4)
document all grievances, including the final disposition,
and keep the documentation in a central file.
(f)
The facility shall not:
(1)
discourage, intimidate, harass, or seek retribution against
clients who try to exercise their rights or file a grievance; or
(2)
restrict, discourage, or interfere with client communication
with an attorney or with the commission for the purposes of filing a grievance.
§148.303.Client Abuse, Neglect, and Exploitation.
(a)
Any person who receives an allegation or has reason to
suspect that a client has been, is, or will be abused, neglected, or exploited
by any person shall immediately inform the commission's investigations division
and the facility's chief executive officer or designee. If the allegation
involves the chief executive officer, it shall be reported directly to the
facility's governing body.
(1)
The person shall also report allegations of child abuse
or neglect to the Texas Department of Protective and Regulatory Services as
required by the Texas Family Code, §261.101.
(2)
The person shall also report allegations of abuse or neglect
of an elderly or disabled individual to the Texas Department of Protective
and Regulatory Services as required by the Texas as required by the Texas
Human Resources Code, §48.051.
(b)
If the allegation involves sexual exploitation, the chief
executive officer shall comply with reporting requirements listed in the Civil
Practice and Remedies Code, §81.006.
(c)
The chief executive officer shall take immediate action
to prevent or stop the abuse, neglect, or exploitation and provide appropriate
care and treatment.
(d)
The chief executive officer or designee shall ensure that
a verbal report has been or is made to the commission's investigations division
as required in subsection (a) of this section.
(e)
The person who reported the incident shall submit a written
incident report to the chief executive officer within 24 hours.
(f)
The chief executive officer shall send a written report
to the commission's investigations division within two working days after
receiving notification of the incident. This report shall include:
(1)
the name of the client and the person the allegations are
against;
(2)
the information required in the incident report or a copy
of the incident report;
(3)
other individuals, organizations, and law enforcement notified.
(g)
The chief executive officer or designee shall also notify
the legal consenter. If the client is the legal consenter, family members
and significant others may be notified only if the client gives written consent.
(h)
The facility shall investigate the complaint and take appropriate
action unless otherwise directed by the commission's investigations division.
The investigation and the results shall be documented.
(i)
The governing body or its designee shall take action needed
to prevent any confirmed incident from recurring.
(j)
The facility shall:
(1)
document all investigations and resulting actions and keep
the documentation in a central file;
(2)
have a written policy that clearly prohibits the abuse,
neglect, and exploitation of clients;
(3)
enforce the policy and provide appropriate sanctions for
confirmed violations.
§148.313.Use of Restraint and Seclusion.
(a)
The governing body shall adopt a policy to either authorize
or prohibit the use of personal restraint, mechanical restraint, and seclusion.
All adolescent residential programs, and programs accepting emergency detentions
shall authorize use of personal restraint. Any facility authorizing use of
restraint or seclusion shall have a written procedure that ensures compliance
with this section.
(b)
In programs authorizing use of restraint or seclusion,
direct care staff shall be trained as described in §148.203 of this title
(relating to Staff Training).
(c)
Staff shall not use restraint or seclusion unless a client's
behavior endangers the client or others and less restrictive methods have
been tried and failed.
(d)
Staff shall not use more force than is reasonable and necessary
to prevent imminent harm and shall ensure the safety, well-being, and dignity
of clients who are restrained or secluded, including attention for personal
needs.
(e)
Staff shall obtain authorization from the supervising qualified
credentialed counselor before starting restraint or seclusion or as soon as
possible after implementation.
(1)
The facility shall not use standing authorizations for
restraint or seclusion.
(2)
Authorization for mechanical restraint or seclusion shall
be based on a face-to-face evaluation.
(3)
Each authorization shall include a specific time limit,
not to exceed 12 hours.
(f)
When the client has been safely restrained or secluded,
staff shall tell the client what behavior and timeframes are required for
release when and shall release the client as soon as the criteria are met.
(g)
Clinical staff shall review and document alternative strategies
for dealing with behaviors necessitating the use of restraint or seclusion
two or more times in any 30-day period.
(h)
The chief executive officer or designee shall review all
incident reports involving restraint or seclusion and take action to address
unwarranted use of these measures.
(i)
A client held in restraint shall be under continuous direct
observation. The facility shall ensure adequate circulation during mechanical
restraint and shall only use devices designed for therapeutic restraint.
(j)
Seclusion rooms shall be set up to prevent clients from
harming themselves and shall allow staff to observe clients easily in all
parts of the room. When a client is in seclusion, staff shall conduct a visual
check every 15 minutes.
(k)
The facility shall have a written procedure that ensures
compliance with this section.
(l)
Staff shall record the following information in the client
record within 24 hours:
(1)
the circumstances leading to the client's loss of control;
(2)
the specific behavior necessitating the restraint or seclusion
and the behavior required for release;
(3)
less restrictive interventions that were tried before restraint
or seclusion began;
(4)
the signed authorization of the supervising qualified credentialed
counselor;
(5)
the names of the staff members who implemented the restraint
or seclusion;
(6)
the date and time the procedure began and ended;
(7)
the behavior and timeframes required for release;
(8)
the client's response;
(9)
observations made, including the 15 minute checks; and
(10)
attention given for personal needs.
§148.316.Searches.
(a)
All residential facilities shall adopt a written policy
on client searches. Client searches include personal searches and searches
of a client's property or sleeping quarters. If client searches are allowed,
the facility shall adopt a written search procedure that ensures the protection
of client rights.
(b)
Client searches may only be conducted to protect the health,
safety, and welfare of clients, including detection of drugs and weapons.
(c)
Searches must be conducted in a professional manner that
maintains respect and dignity for the client. The facility shall not conduct
a directly observed strip search of any client.
(d)
A witness shall be present during all client searches.
(e)
Staff and witnesses involved in a personal search must
be the same gender as the client.
(f)
All client searches shall be documented in the client record,
including the reason for the search, the result of the search, and the signatures
of the individual conducting the search and the witness.
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 August 9, 2001.
TRD-200104610
Karen Pettigrew
General Counsel
Texas Commission on Alcohol and Drug Abuse
Effective date: September 1, 2001
Proposal publication date: June 22, 2001
For further information, please call: (512) 349-6607
40 TAC §§148.401, 148.403, 148.405, 148.406, 148.411 - 148.413, 148.421 - 148.424, 148.426
The new rules are adopted under the Texas Health and Safety
Code, Chapter 464, which provides the Texas Commission on Alcohol and Drug
Abuse with the authority to adopt rules licensing chemical dependency treatment
facilities.
The code affected by the adopted new rules is the Texas Health and Safety
Code, Chapter 464.
§148.401.Requirements Applicable to All Programs (Residential and Outpatient).
(a)
The facility shall, to the greatest extent possible, provide
clients access to a full continuum of care within the facility or establish
agreements with other service providers to give clients access to treatment
settings and levels it does not provide.
(b)
The level of care received by clients shall be modified
as needed during the course of treatment to meet individual client needs.
(c)
The facility shall provide the minimum services required
for each licensed level of care.
(1)
Level I shall provide medication and nursing care to manage
the client's withdrawal symptoms. The program shall also provide motivational
interviewing and brief interventions and therapies to enhance the client's
understanding of addiction, address immediate needs, motivate the client to
participate in on-going treatment, and prepare the client for discharge or
transfer. The number of hours and content of the services for each client
shall be based on the individual's condition and needs identified during assessment.
(2)
Level II shall provide an average of at least 20 hours
of treatment services per week for each client, comprised of at least three
hours of chemical dependency counseling (including at least one hour of individual
counseling) and 17 hours of additional counseling, chemical dependency education,
and/or life skills training.
(3)
Level III shall provide an average of at least ten hours
of treatment services per week for each client, comprised of at least two
hours of chemical dependency counseling (including at least one hour of individual
counseling every other week) and eight hours of additional counseling, chemical
dependency education, and/or life skills training.
(4)
Level IV shall provide an average of at least two hours
of counseling per week including at least one hour of individual counseling
per month. Additional hours of service, if provided, may include counseling,
education, and/or life skills training.
(d)
Group size shall be limited to a number that allows effective
interaction between the group and counselor and between group members.
(1)
Group counseling sessions are limited to a maximum of 16
clients.
(2)
Group education and life skills training sessions are limited
to a maximum of 35 clients. This limit does not apply to multi-family educational
groups, seminars, outside speakers, or other events designed for a large audience.
(e)
Chemical dependency education and life skills training
shall follow a written curriculum. All educational sessions shall include
client participation and discussion of the material presented and how it relates
to the clients' individual treatment goals.
(f)
The program shall provide education about tuberculosis,
HIV, Hepatitis B and C, and sexually transmitted diseases based on the Texas
Commission on Alcohol and Drug Abuse Workplace and Education Guidelines for
HIV and Other Communicable Diseases.
(g)
The program shall provide education about the health risks
of tobacco products and nicotine addiction and shall encourage abstinence
from tobacco products.
(h)
The program shall provide access to screening for tuberculosis
and testing for HIV antibody, Hepatitis C, and sexually transmitted diseases.
(1)
HIV antibody testing shall be carried out by an entity
approved by the Texas Department of Health.
(2)
If a client tests positive, the program shall refer the
client to an appropriate health care provider.
(i)
The program shall refer clients to physical health, mental
health, and ancillary services if those services are not available through
the program and are necessary to meet treatment goals and shall conduct follow-up.
(j)
Individuals shall not be denied admission or discharged
from treatment because they are taking prescribed medication.
§148.403.General Staffing Requirements (Residential and Outpatient).
(a)
The facility shall maintain an adequate number of qualified
staff to comply with licensure rules, provide appropriate and individualized
treatment, and protect the health, safety, and welfare of clients.
(b)
Direct care staff shall be awake and on site during all
hours of program operation.
(c)
Each program shall set limits on caseload size that ensure
effective, individualized treatment. The program shall justify the caseload
size in writing based on the program design, characteristics and needs of
the population served, and any other relevant factors.
(d)
All personnel shall receive the training and supervision
necessary to ensure compliance with commission rules, provision of appropriate
and individualized treatment, and protection of client health, safety, and
welfare.
(e)
Individuals responsible for planning, directing, or supervising
Level II, III, and IV treatment shall be qualified credentialed counselors
(QCCs). The clinical program director must have at least two years of post-licensure
experience providing chemical dependency treatment.
(f)
Chemical dependency counseling, education, and life skills
training shall be provided by counselors or individuals who have the specialized
education, expertise, and/or experience needed to teach the material.
(g)
All counselor interns shall work under the direct supervision
of a qualified credential counselor as required in Chapter 150 of this title
(relating to Counselor Licensure).
(h)
Mental health services shall be provided by:
(1)
a qualified mental health professional; or
(2)
an LCDC who has received additional training and achieved
competence in working with chemically dependent individuals with co-occurring
mental health conditions. At a minimum, the training must include 45 education
hours in mental health and 2,000 hours of documented work experience under
the supervision of a qualified mental health professional.
(i)
Counselors shall not provide group or individual counseling
focused on trauma, abuse, or sexual issues unless they are licensed and have
specialized education/training and supervised experience in the subject. At
a minimum, LCDCs providing these services must have 45 education hours and
2,000 hours of documented work experience under the supervision of a qualified
mental health professional.
(j)
One or more direct care staff trained in non-violent crisis
intervention shall be on duty and on site at all times that the program is
in operation. In residential programs, one or more direct care staff certified
in CPR must also be on duty and on site at all times that the program is in
operation.
(k)
The facility shall not allow its clients to serve as staff.
Former clients shall not be hired until at least two years after discharge
from active treatment at the facility.
§148.405.Additional Requirements for Level I (Residential or Outpatient Detoxification).
(a)
The program shall have a medical director who is a licensed
physician. The medical director shall be responsible for admission, diagnosis,
medication management, and client care.
(b)
The medical director shall approve all medical policies,
procedures, guidelines, tools, and the medical content of all forms, which
shall include:
(1)
screening instruments and procedures;
(2)
treatment protocol or standing orders for each major drug
category; and
(3)
emergency procedures.
(c)
In residential programs, direct care staff shall be awake
and on duty where the clients are located 24 hours a day.
(1)
During day and evening hours, at least two awake staff
shall be on duty for the first 12 clients, with one more person on duty for
each additional one to 16 clients.
(2)
At night, at least one awake staff member shall be on duty
for the first 12 clients, with one more person on duty for each additional
one to 16 clients. Night staff shall conduct and individually document in
client records at least three checks while clients are sleeping.
(d)
Residential programs shall have a licensed vocational nurse
or registered nurse on duty for at least eight hours every day and a physician
on call 24 hours a day.
(e)
In outpatient programs, a licensed vocational nurse or
registered nurse shall be on duty during all hours of operation. Clients shall
have access to an on-call health care professional with detoxification experience
24 hours a day.
(f)
The program shall ensure continuous access to emergency
medical care.
(g)
Direct care staff shall complete training in detoxification
as described in §148.203 of this title (relating to Staff Training) and
in restraint and/or seclusion as described in §148.313 of this title
(relating to Restraint and Seclusion).
§148.406.Additional Requirements for Level II, III, and IV Residential Services.
(a)
In adult Level II residential programs, the direct care
staff-to-client ratio shall be at least 1:16 when clients are awake and 1:32
during sleeping hours.
(b)
In adult Level III and IV residential programs, the direct
care staff-to-client ratio shall be at least 1:20 when clients are awake and
1:50 during sleeping hours.
(c)
Direct care staff included in staff-to-client ratios shall
not have job duties that prevent ongoing and consistent client supervision.
(d)
The program shall have at least one counselor on duty at
least eight hours a day, Monday through Saturday.
(e)
The program shall provide planned, structured activities
during evenings and weekends in addition to the required treatment services.
The minimum number of additional hours is 10 for adults and 15 for adolescents.
(f)
Clients in residential programs shall have an opportunity
for eight continuous hours of sleep each night. Staff shall conduct and document
at least three checks while clients are sleeping.
(g)
Every residential program shall adopt medication procedures
so that clients can take medication during treatment.
(h)
Residential programs shall provide three meals for every
client. Meals must provide a balanced and nutritious diet. Records of menus
as served shall be maintained for 30 days after the date of the serving.
(1)
The program shall provide modified diets to residents who
medically require them as determined by a licensed health professional. Special
diets shall be prepared in consultation with a licensed dietitian.
(2)
All food shall be selected, stored, prepared, and served
in a safe, healthy manner.
(3)
When meals are provided by a contracted food service, a
written contract shall require the food service to pass an annual kitchen
health inspection by the local health authority or the Texas Department of
Health.
(i)
Residential programs shall ensure clients have access to
appropriate physical and mental health services.
§148.411.Additional Requirements for Adolescent Programs (Residential and Outpatient).
(a)
The facility shall maintain separation between adults and
adolescents except during family-based treatment activities. Residential facilities
shall have separate sleeping areas, bedrooms, and bathrooms for adults and
adolescents and for males and females.
(b)
Residential and Level II outpatient programs shall provide
access to education approved by the Texas Education Agency within three school
days of admission when treatment is expected to last more than 14 days.
(c)
The program's treatment services, lectures, and written
materials shall be age-appropriate and easily understood by clients.
(d)
The facility shall allow regular communication between
an adolescent client and the client's family and shall not arbitrarily restrict
any communications without clear individualized clinical justification documented
in the client record.
(e)
The facility shall ensure that staff who plan, supervise,
or provide adolescent treatment have specialized education or training as
required in §148.203 of this title (relating to Staff Training).
(f)
In residential programs, the direct care staff-to-client
ratio shall be at least 1:8 during waking hours (including program-sponsored
activities away from the facility) and 1:16 during sleeping hours. In Level
II outpatient programs, the direct care staff-to-client ratio shall be at
least 1:8.
(g)
Clients shall be under direct supervision at all times.
(h)
The treatment plan shall address adolescent needs and issues
and family relationships.
(i)
The program shall involve the adolescent's family or an
alternate support system in the treatment process or document why this is
not happening.
(j)
The program shall prohibit adolescent clients from using
tobacco products on the program site. Staff and other adults (volunteers,
clients, and visitors) shall not use tobacco products in the presence of adolescent
clients on site.
(k)
The facility shall have written procedures that staff use
when an adolescent leaves a program without permission.
§148.412.Correctional Facilities.
(a)
Programs located in correctional facilities are not required
to meet commission standards in areas under the control of the correctional
facility. Correctional mandates shall take precedence when correctional requirements
conflict with commission requirements.
(b)
A correctional facility is an institution operated under
the jurisdiction of federal, state or local government used to confine individuals
who have been convicted of a crime and sentenced to a period of incarceration.
Correctional facilities include prisons, jails, and youth detention centers
but exclude community-based organizations serving individuals mandated to
treatment by the judicial or correctional system.
(c)
The commission may grant variances to community-based treatment
facilities that contract with correctional authorities when correctional requirements
conflict with commission requirements.
§148.421.Screening and Admission Authorization.
(a)
Every individual admitted to a Level I treatment program
shall meet the DSM-IV criteria for substance intoxication or withdrawal.
(b)
Every person admitted to a Level II, III, or IV treatment
program shall meet the DSM-IV criteria for substance abuse or dependence.
(c)
Adults and adolescents shall be treated in separate programs.
(1)
Adolescent programs serve youth 13 to 17 years of age.
However, children aged 10-12 and young adults aged 18-21 may be admitted to
an adolescent program when the screening process indicates the individual's
needs, experiences, and behavior are similar to those of adolescent clients.
(2)
Adult programs serve individuals 18 years of age or older.
However, adolescents aged 16 or 17 may be admitted to an adult program when
they are referred by the adult criminal justice system or when the screening
process indicates the individual's needs, experiences, and behavior indicate
that treatment in an adult program is clinically appropriate.
(3)
Every exception to the general age requirements must be
clinically justified and documented and approved in writing by the program
director.
(d)
The facility shall use the Texas Department of Insurance
criteria to place applicants in the most appropriate level of care accessible
to them at the facility or through referral. Exceptions shall be clinically
justified in writing and approved by the program director.
(e)
A qualified professional shall conduct a face-to-face examination
of each applicant to establish the Axis I diagnosis, assess withdrawal potential,
and determine the need for treatment and the type of treatment to be provided.
The examination shall identify potential mental health problems that warrant
further assessment.
(1)
In programs providing Level I treatment, the examination
shall be conducted by a physician, physician assistant, advanced nurse practitioner,
or registered nurse.
(2)
In programs providing Level II, III, or IV treatment, a
counselor shall conduct the examination.
(f)
A qualified professional shall authorize each admission
in writing and specify the type of care to be provided. If the examining professional
is not qualified to authorize admission, the authorizing professional shall
review the results of the examination and meet with the applicant face-to-face
before authorizing admission. The authorization shall be documented in the
client record and shall contain sufficient documentation to support the diagnosis
and the placement decision.
(1)
All admissions to Level I treatment shall be authorized
by a physician, physician assistant, advanced nurse practitioner, or registered
nurse. Each admission authorization shall be verified and co-signed by a physician
within 72 hours. If the physician determines an admission was not appropriate,
the client shall be transferred to an appropriate service provider.
(2)
In programs providing Level II, III, or IV treatment, a
QCC shall authorize the admission.
(g)
If an individual is not admitted, the program shall refer
and assist the applicant to obtain appropriate services.
(h)
When an applicant is denied admission, the facility shall
maintain documentation signed by the examining professional which includes
the reason for the denial and all referrals made.
§148.423.Initial Assessment.
(a)
A counselor shall conduct and document a comprehensive
assessment of each client admitted to the facility. The assessment shall provide
comprehensive information about the client's past and present status that
provides a thorough understanding of the following areas:
(1)
presenting problems and circumstances leading to admission;
(2)
alcohol and other drug use, past and present;
(3)
past psychiatric and chemical dependency treatment;
(4)
significant medical history and current health status;
(5)
family structure;
(6)
current living situation;
(7)
relationships with family of origin, nuclear family, and
significant others;
(8)
social history;
(9)
education and vocational training;
(10)
employment history and current status;
(11)
legal history and current legal status;
(12)
emotional state and behavioral functioning, past and present;
and
(13)
strengths and weaknesses.
(b)
If the screening identifies a potential mental health problem,
the facility shall obtain a mental health assessment and seek appropriate
mental health services when resources for mental health assessments and/or
services are available internally or through referral at no additional cost
to the facility. These services shall be provided by a facility authorized
to provide such services or a qualified professional as described in §148.303(h)
of this title (relating to General Staffing Requirements (Residential and
Outpatient)).
(c)
The assessment shall result in a comprehensive diagnostic
impression. The diagnostic impression shall include DSM-IV Axes I, IV, and
V and may include Axes II and III.
(d)
The assessment shall result in a comprehensive listing
of the client's problems and needs.
(e)
The assessment shall be signed by a QCC and filed in the
client record within three individual service days of admission.
(f)
The program may accept an assessment from an outside source
if:
(1)
it meets the commission's criteria;
(2)
it was completed during the 30 days preceding admission
or is received directly from a facility that is transferring the client; and
(3)
a counselor reviews the information with the client and
documents an update.
(g)
For residential clients in Levels II, III, and IV, a licensed
health professional shall conduct an assessment of the client's physical health
status within 96 hours of admission. The facility may accept a health assessment
from an outside source completed no more than 30 days before admission or
received directly from a transferring facility. If the client has any physical
complaints or indications of medical problems, the client shall be referred
to a physician, physician assistant, or advanced nurse practitioner for a
history and physical examination. The examination, if needed, shall be completed
within a reasonable time frame and the results filed in the client record.
(h)
Each Level I client shall have a history and physical examination
signed by a physician, physician assistant, or advanced nurse practitioner.
(1)
Residential clients shall have the history and physical
examination completed and filed within 24 hours of admission. The program
may accept an examination completed during the 24 hours preceding admission
if it is approved by the program's physician, physician assistant, or advanced
practice nurse.
(2)
Outpatient clients shall have the history and physical
examination completed and available for review by program staff before admission.
§148.424.Treatment Planning and Implementation.
(a)
The counselor and client shall work together to develop
an individualized, written treatment plan that addresses problems and needs
identified in the assessment. When appropriate, family and/or significant
others shall also be involved.
(1)
When the client needs services not offered by the facility,
appropriate referrals shall be made and documented in the client record.
(2)
The client record shall contain justification when identified
needs are temporarily deferred or not addressed during treatment.
(b)
The treatment plan shall include goals, objectives, and
strategies.
(1)
Goals shall be based on the client's problems/needs, strengths,
and preferences.
(2)
Objectives shall be individualized, realistic, measurable,
time specific, appropriate to the level of treatment, and clearly stated in
behavioral terms.
(3)
Strategies shall describe the type and frequency of the
specific services and interventions needed to help the client achieve the
identified goals.
(c)
The treatment plan shall include the conditions for discharging
or transferring the client to another level of care. The Texas Department
of Insurance criteria shall be used as a general guideline for determining
when clients are appropriate for transfer or discharge, but individualized
criteria shall be specifically developed for each client.
(d)
The treatment plan shall include initial plans for discharge.
The discharge plans shall be updated as the client progresses through treatment.
(e)
The treatment plan shall identify the client's primary
counselor, and shall be dated and signed by the client, and the counselor.
When the counselor is an intern or graduate, a QCC shall review and sign the
treatment plan.
(f)
The treatment plan shall be completed and filed in the
client record within five individual service days of admission.
(g)
The program shall implement the treatment plan. The progress
notes shall reflect that every goal and objective is addressed regularly or
as needed during the course of treatment and shall document when a goal or
objective is completed.
(h)
Program staff shall document all treatment services (counseling,
chemical dependency education, and life skills training) in the client record
within 72 hours, including:
(1)
the date, nature, and duration of the contact;
(2)
the topic of the session and the goals and/or objectives
addressed;
(3)
the client's response; and
(4)
the signature and credentials of the person providing the
service.
(i)
In addition to the items in subsection (h) of this section,
individual and group counseling notes shall include:
(1)
clinical observations made during the session, including
the client's mental status; and
(2)
changes in client circumstances and new issues or needs
identified during the session.
(j)
All residential programs and Level II outpatient programs
shall write a weekly summary note describing the client's response to treatment
over the course of the week. Information documented in other progress notes
does not need to be repeated in the weekly summary. The weekly summary shall
be completed within 72 hours of the end of the treatment week and shall include:
(1)
significant events and changes in the client's circumstances;
(2)
clinical observations, including the client's mental status;
(3)
progress towards specific goals and objectives; and
(4)
new issues or needs identified.
(k)
The treatment plan shall be evaluated on a regular basis
and revised as needed to reflect the ongoing reassessment of the client's
problems, needs, and response to treatment.
(l)
The primary counselor shall meet with the client to evaluate
the treatment plan at appropriate intervals defined in writing by the program.
At a minimum, treatment plans shall be reviewed midway through the projected
duration of treatment. The treatment plan shall also be reviewed and revised
when there is a significant change in the client's status.
(m)
The treatment plan review shall include:
(1)
an evaluation of the client's progress toward each goal
and objective;
(2)
revision of the goals, objectives and discharge plans as
needed; and
(3)
an assessment of the continued appropriateness of the current
treatment level.
(n)
Treatment plan reviews shall be dated and signed by the
client, the counselor, and the supervising QCC, if applicable.
(o)
When a client is transferred to a new level of care, the
client record shall contain:
(1)
clear documentation of the decision signed by QCC, including
the rationale and the effective date; and
(2)
a revised treatment plan.
§148.426.Discharges.
(a)
The program shall plan all discharges with clients, consenters,
and other service providers to provide reasonable protection and continuity
of services to the client.
(1)
When a client is referred or transferred to another chemical
dependency or mental health service provider for continuing care, the facility
shall contact the receiving program before the client is discharged to make
arrangements for the transfer.
(2)
Coordination activities shall be documented in the client
record.
(3)
With proper client consent, the facility shall provide
the receiving program with copies of relevant parts of the client's record.
(b)
The program shall involve the client's family or an alternate
support system in the discharge planning process when appropriate.
(c)
Discharge planning shall be completed before the client's
scheduled discharge.
(d)
A written discharge plan shall be developed to address
ongoing client needs, including:
(1)
individual goals or activities to sustain recovery;
(2)
referrals; and
(3)
aftercare services, if applicable.
(e)
The completed discharge plan shall be dated and signed
by the counselor, the client, and the consenter (if applicable).
(f)
The program shall give the client and consenter a copy
of the plan, and file the original signed plan in the client record.
(g)
The program shall complete a discharge summary for each
client within 30 days of discharge. The discharge summary shall be signed
by a QCC and shall include:
(1)
dates of admission and discharge;
(2)
needs and problems identified at the time of admission,
during treatment, and at discharge;
(3)
services provided;
(4)
assessment of the client's progress towards goals;
(5)
reason for discharge; and
(6)
referrals and recommendations, including arrangements for
aftercare.
(h)
The facility shall contact each client no later than 90
days after discharge from the facility and document the individual's current
status or the reason the contact was unsuccessful.
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 August 9, 2001.
TRD-200104611
Karen Pettigrew
General Counsel
Texas Commission on Alcohol and Drug Abuse
Effective date: September 1, 2001
Proposal publication date: June 22, 2001
For further information, please call: (512) 349-6607
40 TAC §§148.501 - 148.504
The new rules are adopted under the Texas Health and Safety
Code, Chapter 464, which provides the Texas Commission on Alcohol and Drug
Abuse with the authority to adopt rules licensing chemical dependency treatment
facilities.
The code affected by the adopted new rules is the Texas Health and Safety
Code, Chapter 464.
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 August 9, 2001.
TRD-200104612
Karen Pettigrew
General Counsel
Texas Commission on Alcohol and Drug Abuse
Effective date: September 1, 2001
Proposal publication date: June 22, 2001
For further information, please call: (512) 349-6607
40 TAC §§148.601 - 148.607
The new rules are adopted under the Texas Health and Safety
Code, Chapter 464, which provides the Texas Commission on Alcohol and Drug
Abuse with the authority to adopt rules licensing chemical dependency treatment
facilities.
The code affected by the adopted new rules is the Texas Health and Safety
Code, Chapter 464.
§148.601.General Physical Plant Provisions.
(a)
Physical plant requirements apply only to residential programs.
(b)
The residential program shall have a certificate of occupancy
from the local authority that reflects the current use by the occupant or
documentation that the locality does not issue occupancy certificates.
(c)
The entire residential site, including grounds, buildings,
electrical and mechanical systems, appliances, equipment, and furniture shall
be structurally sound, in good repair, clean, and free from health and safety
hazards.
(d)
The water supply shall be of safe, sanitary quality, suitable
for use, and adequate in quantity and pressure. The water shall be obtained
from a water supply system approved by the Texas Natural Resource Conservation
Commission (TNRCC).
(e)
Sewage shall be discharged into a state-approved sewage
system or septic system; otherwise, the sewage must be collected, treated,
and disposed of in a manner which is approved by TNRCC.
(f)
Mobile homes, recreational vehicles, and campers shall
not be used for client sleeping areas.
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 August 9, 2001.
TRD-200104613
Karen Pettigrew
General Counsel
Texas Commission on Alcohol and Drug Abuse
Effective date: September 1, 2001
Proposal publication date: June 22, 2001
For further information, please call: (512) 349-6607
Chapter 159.
ADMINISTRATIVE RULES AND PROCEDURES
Subchapter D. CONTRACT DISPUTE RESOLUTION
40 TAC §§159.55 - 159.83
The Texas Commission for the Blind adopts new §§159.55-159.83
relating to procedures for the negotiation and mediation of certain breach
of contract claims asserted by contractors against the Commission. The rules
are adopted without changes to the text published in the May 25, 2001, issue
of the
Texas Register
(26 TexReg 3711). The
rules are adopted pursuant to Government Code, Chapter 2260, which requires
that units of state government with rulemaking authority adopt rules to establish
negotiation and mediation provisions. These proposed rules have been modeled
closely after model rules provided to state agencies by the Office of the
Attorney General and the State Office of Administrative Hearings.
The Commission received no comments in response to the proposal.
The rules are adopted under the authority of Human Resources
Code, Title 5, Chapter 91, §91.022, which authorizes the agency to adopt
rules prescribing the policies and procedures followed by the Commission in
the administration of its programs.
The new rules also affect Texas Government Code, Chapter 2260. 40 TAC §§159.55-159.83
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 August 24, 2001.
TRD-200104530
Terrell I. Murphy
Executive Director
Texas Commission for the Blind
Effective date: August 28, 2001
Proposal publication date: May 25, 2001
For further information, please call: (512) 377-0611
Subchapter E. CONSUMER PARTICIPATION IN COST OF SERVICES
40 TAC §163.61
The Texas Commission for the Blind adopts amendments to §163.61
pertaining to scope of Subchapter E, Consumer Participation in Cost of Services,
without changes to the text proposed in the May 25, 2001, issue of the
The agency received no public comments in response to the proposal.
The rule is adopted under the authority of Human Resources Code,
Title 5, Chapter 91, §91.022, which authorizes the agency to adopt rules
prescribing the policies and procedures followed by the Commission in the
administration of its programs.
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 August 8, 2001.
TRD-200104528
Terrell I. Murphy
Executive Director
Texas Commission for the Blind
Effective date: August 28, 2001
Proposal publication date: May 25, 2001
For further information, please call: (512) 377-0611
40 TAC §§167.1 - 167.3
The Texas Commission for the Blind adopts the repeal of §§167.1-167.3
pertaining to the Business Enterprises Program without changes to the proposed
text published in the March 23, 2001, issue of the
Texas Register
(26 TexReg 2333). The repeal is adopted to allow the
agency to simultaneously adopt revised rules for the administration of the
program.
The Commission received no public comments about the proposed repeal.
The repeals are adopted under the authority of Human Resources
Code §94.012, which authorizes the Commission to promulgate rules for
the administration of the program and §94.016, which authorizes the commission
to administer the program in accordance with the provisions of the Randolph-Sheppard
Act (20 U.S.C. Section 107 et seq.).
The repeal also affects Human Resources Code §91.052, Vocational Rehabilitation
Program for the Blind. 40 TAC §§167.1-167.3
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 August 7, 2001.
TRD-200104511
Terrell I. Murphy
Executive Director
Texas Commission for the Blind
Effective date: March 1, 2002
Proposal publication date: March 23, 2001
For further information, please call: (512) 377-0611
40 TAC §§167.1 - 167.16
The Commission adopts new §§167.1-167.16 pertaining
to Business Enterprises of Texas with changes to the proposed text published
in the March 23, 2001, issue of the
Texas Register
(26 TexReg 2334). The new rules are the result of the agency's review
of 40 TAC Chapter 167 under the requirements of Texas Government Code, §2001.039
and the General Appropriations Act, Article IX, Section 9-10.13, 76th Legislature,
1999, and are the culmination of a two-year study of the program. The recent
change in the program's name from Business Enterprises Program to Business
Enterprises of Texas is reflected in the new chapter title. The new rules
implement Texas Human Resources Code, Chapter 94, pertaining to vending facilities
operated by blind persons, and United States Code, Title 20, Chapter 6A, pertaining
to vending facilities in federal buildings.
The following sections are adopted without changes to the text as proposed;
therefore, the text will not be republished: §167.1, Legal Authority; §167.2,
Definitions; §167.5, Training of Potential Managers; §167.9, Set-Aside
Fees; §167.10, Duties and Responsibilities of Managers; §167.11,
Responsibilities of the Commission; §167.12, BET Elected Committee of
Managers; and §167.16, Establishing and Closing Facilities.
The following sections are adopted with changes to the text as proposed: §167.3,
General Policies; §167.4, BET Administration; §167.6, BET Licenses; §167.7,
Initial and Career Advancement Assignment Procedures; §167.8, Fixtures,
Furnishings, and Equipment; Initial Inventory and Expendables; §167.13.
Termination of License for Reasons Other Than Unsatisfactory Performance; §167.14.
Administrative Action Based on Unsatisfactory Performance; and §167.15,
Procedures for Resolution of Manager's Dissatisfaction. The Commission received
written comments from two licensed managers and one organization, the Elected
Committee of Managers of Texas. The changes are primarily the result of public
comments and are explained in the following Commission's responses to comments.
§167.3, General Policies.
Comments: One licensed manager commented that it appears that the purpose
of §167.3(c), pertaining to full-time employment, is to ensure that Managers
are personally fully engaged in operating their facility to the extent necessary
to achieve a successful operation and that no Manager should be exempt from
the rule. He also suggested that managers would be employees of TCB if the
purpose of the rule is to schedule a certain number of hours for each Manager
as determined by the Director and establish a time-keeping system.
Response: The commenter is correct that the purpose of the rule is to ensure
that managers are personally engaged in the operation of their facility on
a full-time basis. The Commission disagrees that the establishment of at least
40 hours a week as the definition of "full-time" employment establishes an
employer/employee relationship between TCB and the licensee. The Commission,
as state licensing agency, has the authority to promulgate rules and regulations
that adequately insure the effective operation of each vending facility (34
CFR §395.4(a)). Assuring the presence of the licensed manager in a facility
on a full-time basis not only insures a facility's effective operation, but
also is in consonance with Randolph-Sheppard Act regulations which define
a facility's normal working hours as an eight hour work period, Monday through
Friday (34 CFR §395.1(m)).
It is not the intent in §167.3(c) of the proposed rules to establish
a time-keeping system. If such a system is needed, however, it will be addressed
in operating procedures. The intent is to clarify that becoming a licensed
manager in BET is not a vocational rehabilitation employment outcome of self-employment
in which a person would be free to set his or her working hours or hire someone
else to manage the business. Rather, BET is a full-time vocational rehabilitation
employment outcome as that term is defined in the Rehabilitation Act in which
persons who are blind and unemployed are given preference in personally operating
a BET facility under the continuing management supervision of the Commission
(34 CFR §361.5(16); 34 CFR §395.7(a)).
The Commission disagrees that the rule must not allow for exceptions. The
Commission is allowing for those rare circumstances when it is determined
that fewer than 40 hours are justified based on the type and needs of the
facility. Also, in the interest of fairness, allowances are being made for
a limited number of managers who prior to this rule have been granted authority
to participate on an ongoing basis less than 40 hours in the active management
of their assigned facility. Through normal manager attrition the small number
of exceptions granted prior to this rule being adopted will decrease accordingly.
Two minor technical changes have been made to subparagraph (c). The rule
has been clarified by specifying that any approval for waivers to the rule
must be in writing. The word "means" has replaced the word "is" in the last
sentence.
Comments: With regard to §167.3(e), pertaining to the effect of outside
employment, public comments were received from two managers. One manager commented
that it seems unfair that a manager earning fifty thousand a year would be
terminated when the manager's outside income reached seventy five thousand
but a manager in a more lucrative facility, when starting an outside business,
could earn much more before being terminated from the program. He also suggested
that the Commission does not have authority to verify a manager's personal
income by requesting access to personal income tax returns, which may be jointly
filed returns. A second manager expressed concerned that the provisions in §167.3(e)
would make a manager ineligible to continue in the program if he/she had earnings
from investments or a spouse's business.
Response: The Commission has decided to eliminate subsection (e) at this
time and further study the issue of managers having outside employment income
in addition to being a licensed manager through BET, a taxpayer-subsidized
program. The remaining subsections (f) through (j) are unchanged, but have
been renumbered accordingly.
§167.4. BET Administration.
Comments: The Commission received comments from one manager about proposed §167.4(c)
pertaining to the use of consultants. The manager objected that the proposed
rule provides the BET Director the right to hire an assistant for the manager
utilizing the revenues generated from that facility. He also states that it
would be an abuse of authority to arbitrarily limit the income of a manager
by removing revenues from the operation against the will of the manager without
a clearly delineated purpose.
The Commission also received comments from the Elected Committee of Managers
(ECM) about proposed §167.4(c). The ECM expressed concern that the rule
gives the Commission exclusive authority to decide whether a facility manager
must hire a consultant to assist a manager or protect the interests of the
agency and to determine whether the manager or the agency pays for the services
of a consultant out of facility revenues. The ECM asked that the rule be modified
to ensure that payment for consultants is made from set-aside funds generated
by levies on facility net proceeds and vending machine income and not from
facility revenues. The ECM also asked that the rule be modified to ensure
that the Commission does not require any facility manager with more than one
year of experience as a manager to hire or pay for any consultant, unless
after consultation between such facility manager and the agency the manager
agrees to do so.
Response: The Commission disagrees with the conclusions of the first commenter.
The rule gives the BET Director neither arbitrary discretion nor the right
to hire an assistant for the manager. The rule is specific that a consultant
is not a hired assistant and clearly states that a consultant will be considered
only when it becomes necessary to "assist a manager or protect the interests
of the agency." Randolph-Sheppard regulations require the state licensing
agency to take effective action, including the termination of licenses, to
carry out full responsibility for the supervision and management of each vending
facility in its program in accordance with its established rules and regulations
and the terms and conditions governing the permit (34 CFR §395.3(a)(11)(ii)).
The Commission finds that using a temporary consultant to safeguard the manager's
assignment to a facility is far more advisable than prematurely initiating
administrative action mentioned in the regulations when the manager is having
difficulty or lacks the specific skills to meet the terms of the permit. For
the purpose of clarification, the Commission has changed §167.4(c)(1)
by adding those instances in which it is not appropriate to pay for the consultant
from facility revenue. The rule has also been clarified by linking the term
"post-employment services" to the definition in the Rehabilitation Act.
In response to comments made by the Elected Committee of Managers (ECM),
the ECM has misconstrued the relationship between the facility and the Commission.
The contract or permit with the host is in the name of the Commission (34
CFR §395.35). Contrary to the commenter's conclusion, the Commission
is not taking revenues from the manager. The Commission is utilizing revenues
from the facility to assure that the manager remains in the facility or that
the Commission's agreement with the facility host is not jeopardized. No manager
is guaranteed all of the proceeds from an agreement between the Commission
and the host.
The rule is also necessary because the Commission is pursuing the establishment
of larger facilities with greater income potential. To provide effective services
at these facilities often requires operating skills and knowledge beyond the
present skill level of the manager chosen to operate the facility or the skill
of the Commission, or if the Commission does possess the knowledge, its staffing
level may not allow for action to be taken quickly enough to preserve the
facility. The Commission disagrees that temporary consultant fees should always
be paid from "set-aside funds generated by levies on facility net proceeds
and vending machine income." No statute or rule limits the Commission to paying
for consultant services only from set-aside funds.
§167.6. BET Licenses.
Comments: The Commission received comments from one manager about proposed §167.6.
He argues that the proposed rule is in conflict with 34 CFR §395.7. He
stated that a person should be certified at the end of training and only licensed
when assigned to a facility.
Response: The Commission does not agree that §167.6 as proposed is
in conflict with 34 CFR §395.7. The agency has operated its program in
the manner described in the proposed rule for decades with the approval of
the Rehabilitation Services Administration. Requiring a license to be issued
for the operation of a particular facility would require the relicensing of
managers every time they change locations. A system described by the commenter
would also cause managers to lose their licenses every time their facilities
close. A system such as this is less efficient than issuing licenses without
an expiration date once the person has received training and has been certified
as qualified to operate a BET facility.
No changes have been made in the rule as a result of the previous public
comment. However, a change has been made to subsection (g) of the rule to
conform to changes made in §§167.13 and 167.14, wherein the word
"administrative" is being substituted for the word "disciplinary" throughout
these rules.
§167.7. Initial and Career Advancement Assignment Procedures.
Comments: The Commission received comments from the Elected Committee of
Managers about §167.7(b), pertaining to initial assignments. The ECM
does not agree that the BET director should make the initial assignment of
newly licensed managers. The ECM recommends that a newly-licensed manager
continue to be assigned to a Level I facility through competition and selection
by a selection committee.
Response: The Commission disagrees with the commenter's position that the
BET Director should not once again make initial assignments. In the past,
initial assignments have been made by the BEP Director. We disagree based
on two reasons. The first is found in 34 CFR §395.7, which requires the
State licensing agency to give preference to blind persons who are in need
of employment in the licensing of managers. The rule as proposed allows for
the swift assignment of unemployed licensees into a Level 1 facility. All
career advancement (promotion) assignments are still competitive. The second
reason the BET Director should make the initial assignment is because newly-licensed
managers maintain their status as consumers within the Vocational Rehabilitation
Program until they are assigned to a facility and have maintained their employment
outcome as a BET manager for an appropriate period of time, but not less than
90 days (34 CFR §361.56). There are certain rights afforded to consumers
under the Rehabilitation Act, including the right to confidentiality of all
consumer records (34 CFR §361.38). Although a consumer has the right
to consent to the release of their records to persons outside the agency during
their training, certification, and initial assignment process, the agency
cannot by rule declare that they must release personal records, which would
include personal confidential information as well as BET training records
and test scores. For this reason, agency personnel are the appropriate persons
to make initial assignments to qualified consumer/new licensees. The proposed
rule adequately addresses the Randolph-Sheppard Act by requiring the BEP Director
to consider the recommendations of the ECM chairperson prior to assigning
a newly licensed manager to an available Level 1 facility.
No changes have been made in §167.7 as a result of the previous public
comments. However, a change has been made to (c)(4)(C) and (c)(9)(J) and (K),
of the rule to conform to changes made in §§167.13 and 167.14, wherein
the word "administrative" is being substituted for the word "disciplinary"
throughout these rules.
§167.8. Fixtures, Furnishings, and Equipment; Initial Inventory and
Expendables.
No comments were received about §167.8. However, a change has been
made to (g)(1) of the rule to conform to changes made in §§167.13
and 167.14, wherein the word "administrative" is being substituted for the
word "disciplinary" throughout these rules.
§167.9. Set-Aside Fees.
Comments: The Commission received comments from the ECM on proposed §167.9(d)
of the proposed rules pertaining to the method of computing monthly set-aside
fee. The ECM objects to the proposed set-aside fee schedule, in particular
to the increase in set-aside payments for managers whose net proceeds exceed
$6,000 per month. The ECM also argues that the Commission has neither justified
the reasonableness of the proposed set-aside charges as the regulations require,
nor has it consulted with the Elected Committee of Managers on such charges.
The Commission also received comments from one manager, who also disagrees
with the amount of set-aside fee charged to managers earning $6,000 per month
or more.
Response: In response to the comment that the agency has not included a
justification of the reasonableness of the proposed set-aside fee, the agency
is not required to justify the reasonableness by rule. The Secretary of Education
is charged with determining the extent to which funds are to be set aside
or caused to be set aside from the net proceeds of the operation of the vending
facilities (34 CFR 395.3(a)(11)(iii) and (iv)). By way of explanation, however,
the reasonableness for the method for the set-aside charges is as follows:
The Commission wanted those managers who receive a greater economic benefit
from the program to reinvest a larger percentage of their profits. This was
because the wealthier managers not only receive a larger benefit from the
program, but also because it was perceived to be fairer for the wealthier
to bear a larger burden than those who receive far less money. Our rationale
is much the same as the rationale for the federal income tax system. The exact
numbers were derived by determining the amount of set-aside revenue necessary
to sustain the program and then dividing the burden of contribution based
upon the previously mentioned equitable considerations. Over 80% of the managers
will pay less under the schedule. The Commission also researched set-aside
fees used in most other states prior to developing this revised schedule.
The Commission did consult with the Elected Committee of Managers in the
following manner: (1) The chairman of the ECM and an additional ECM representative
designated by the ECM chairman participated in all of the BET Ad Hoc Committee
meetings which developed these rules. The ECM representatives were expected
to discuss all issues with the full ECM and any other managers and present
the views of the ECM to the Ad Hoc Committee. The Commission did not dictate
how the ECM wished to communicate its views through its chairman and representative.
(2) The Ad Hoc Committee discussed this particular rule over a period of many
months. All drafts of the rule were made available to the ECM through its
chairman. The ECM Chairman discussed views of the ECM during the months of
policy development. (3) After completion of the Ad Hoc Committee's work, a
draft of the proposed rules was distributed by the Commission to all managers
for review, input, and comment.
§167.10. Duties and Responsibilities of Managers.
Comments: The Commission received comments from the Elected Committee of
Managers seeking the removal of any reference or requirement for facility
managers, licensees, or trainees to follow "any proper and authorized instruction
by Commission staff" used in proposed §167.10(a) or in any other provision
of the proposed rules. The ECM stated that the Commission should not require
any facility manager, licensee, or trainee to follow any instructions which
are not required by statute, rule, regulation, contractual agreements, or
permits.
Response: The Commission is somewhat puzzled by the commenter's insistence
that the Commission's staff is an improper method for relaying applicable
program instructions. Randolph-Sheppard Act regulations require the agency
to establish policies and standards governing the relationship of the State
licensing agency to the vendors, including their duties (34 CFR §395.3(a)(7)).
The specified duty of the State licensing agency is to provide management
services, which means supervision, inspection, quality control, consultation,
accounting, regulating, in-service training, and other related services (34
CFR §395.1(j) and 34 CFR §361.49(a)(5)). Proper and authorized instructions
means instructions in accordance with applicable statutes and program rules,
regulations, and procedures. The primary communication management service
link between licensed managers and the agency is through BET personnel. The
term "proper and authorized instruction" means instructions in accordance
with applicable statutes and program rules, regulations, and procedures.
No changes have been made in §167.10 as a result of public comments.
§167.12. BET Elected Committee of Managers.
Comments: The Commission received one comment pertaining to proposed 167.12.
A manager stated that the Elected Committee of Managers should be subject
to the Open Meetings Act.
Response: The ECM is not a governmental body as that term is defined in
Government Code §551.001 (Open Meetings Act).
No changes have been made in §167.12 as a result of public comments.
167.13. Nondisciplinary Termination of License.
167.14. Disciplinary Actions.
Comments: The Commission received comments from the Elected Committee of
Managers objecting to the use of the word "disciplinary" in the proposed rules.
The ECM also specifically called for the elimination of (a)(1), (a)(15),
and (e)(3) of proposed §167.14, saying the rules are vague and subject
to abuse. The ECM also stated that in the event a manager is removed from
his or her facility under this section, and it is subsequently determined
by competent authority, or by agreement between the Texas Commission for the
Blind and the Elected Committee of Managers, that the manager had been removed
through misfeasance, malfeasance, error, or malice, then the manager must
be reinstated promptly and he or she shall be compensated in an amount equal
to the amount the manager would have received in the absence of removal, and
the manager further shall be compensated for all reasonable expenses incurred
as a result of such removal.
Response: Much as the State of Texas has disciplinary procedures for licensed
professionals such as lawyers, engineers, etc., the Commission has historically
had disciplinary procedures for those licensed professionals in BET. We have
no objection, however, to discontinuing the use of forms of the word "discipline"
in these rules and have modified §167.13 and §167.14 and other sections
where the word appears. The word "administrative" has replaced "disciplinary"
in both sections and other minor editing has been made as a result of the
change in wording.
Administrative actions leading up to and including the termination of licenses
for unsatisfactory performance are necessary. Under the terms of state law,
a blind person's willful failure to comply with the commission's rules or
the provisions of this chapter constitutes grounds for the automatic revocation
of the person's license (HRC §94.006(d)). Federal law states that the
State licensing agency shall provide for the issuance of licenses for an indefinite
period but subject to suspension or termination if, after affording the vendor
an opportunity for a full evidentiary hearing, the State licensing agency
finds that the vending facility is not being operated in accordance with the
State licensing agency's rules and regulations, the terms and conditions of
the permit, and the terms and conditions of the agreement with the vendor
(34 CFR Sec. 395.7(b)).
In response to the comment calling for the elimination of (a)(10), (a)(15),
and (e)(3) of proposed §167.14, no changes have been made in the adoption. §167.14(a)(10)
is designed to address any action that endangers the Commission's investment
in the facility. The Commission cannot list all the possible ways that this
can be done. The rule is necessary to protect taxpayer dollars and employment
opportunities for persons who are blind. §167.14(a)(15) is neither vague
nor overbroad. §167.14(e)(3) is necessary to remove a manager if the
Commission finds that the manager's continued presence in the facility would
endanger the Commission's investment in the facility.
Pertaining to the ECM's statement regarding compensation to managers removed
from facilities who are subsequently determined to have been removed in error,
the commission cannot waive sovereign immunity in grievance procedures. This
does not mean that managers do not have remedies outside the grievance process
addressed in these rules.
§167.15. Procedures for Resolution of Manager's Dissatisfaction.
Comments: The Elected Committee of Managers objected to three subsections
of §167.15. The first was subsection (c) of the proposed rule pertaining
to Commission discretion and sovereign immunity. The ECM said that the Commission
should waive sovereign immunity with respect to the resolution of grievances
under the Randolph-Sheppard Act. The second was subsection (f) pertaining
to full evidentiary hearings. The ECM asked that the subsection be amended
to impose a limit on the time for filing a grievance for an evidentiary hearing
to a date not later than 20 business days following the last action or omission
complained of. The Committee also asked that the subsection be amended to
reflect that a decision of an administrative law judge or hearing officer
of the State Office of Administrative Hearings or any successor agency shall
be final for purposes of appeal, and that, the Executive Director not be empowered
to make a final adjudicative decision in a grievance by a manager. The third
was subsection (g) pertaining to arbitration. The ECM asked that §167,15(g)
be amended by eliminating the time limit on a manager's right to file a complaint
for arbitration.
Response: On the first subsection, the Commission does not have the power
to waive sovereign immunity for the State of Texas. Neither does the Randolph-Sheppard
Act provide for a waiver of sovereign immunity for each of the several State
licensing agencies. No changes were made in subsection (c).
On the second subsection, TCB disagrees that expanding the time in which
to bring a request for a full evidentiary hearing from 15 working days to
20 working days places too large a burden on a manager to quickly file a request
for a full evidentiary hearing. The shorter limitation period has been in
effect for decades, and it has not proved to be an obstacle to a grievance
procedure. Section 107b(6) of the Randolph-Sheppard Act (20 U.S.C. §107
et seq.) provides that the State licensing agency (SLA) must provide a blind
licensee dissatisfied with any action arising from the operation or administration
of the vending facility program an opportunity for a fair hearing. This same
section of the Act gives the SLA latitude to create the procedure providing
for the grievance, but requires the SLA to submit its procedural rules governing
the opportunity for a fair hearing to the Secretary of Education for his approval.
The 15 day rule was approved by the Secretary of Education. The longer, 20
day rule in subsection (f) should be even more acceptable. Regarding the ECM's
comment that the Commission (TCB) should not be the gatekeeper and final adjudicator
of grievances brought by facility managers against TCB, the agency disagrees
with the ECM's conclusions. The Randolph-Sheppard Act requires the agency
to provide to any blind licensee dissatisfied with any action arising from
the operation or administration of the vending facility program an opportunity
for a fair hearing. As such, the agency is established in the Act as the "gatekeeper"
for hearings. We disagree that the rule as proposed establishes TCB as the
"final adjudicator" because any manager who is dissatisfied with any action
taken or decision rendered as a result of a hearing may file a complaint with
the Secretary of Education, who shall convene a panel to arbitrate the dispute.
The decision of such arbitration is final.
No changes were made in subsection (f) as a result of the preceding comments.
In response to the comments about subsection (g), the Commission has removed
the time limit from the rule.
Additional Comment: The Commission also received comments from the Elected
Committee of Managers seeking the addition of a new rule pertaining to teaming
partners in food service management with respect to military dining contracts.
This request will be reviewed by the Commission and discussed with the Elected
Committee of Managers at a later time.
The rules are adopted under the authority of Human Resources
Code §94.012, which authorizes the Commission to promulgate rules for
the administration of the program and §94.016, which authorizes the commission
to administer the program in accordance with the provisions of the Randolph-Sheppard
Act (20 U.S.C. Section 107 et seq.).
The rules also affect Human Resources Code §91.052, Vocational Rehabilitation
Program for the Blind. 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.
§167.3.General Policies.
(a)
Objectives. The objectives of Business Enterprises of Texas
shall be:
(1)
to provide employment opportunities for qualified individuals;
and
(2)
to administer a continuing process of career development
for managers which encourages them to move into the private sector of business.
(b)
Relationship of BET to Vocational Rehabilitation Program.
The intent of Business Enterprises of Texas, as authorized in the Randolph-Sheppard
Act and the Texas Human Resources Code, is to stimulate and enlarge the economic
opportunities for the citizens of Texas who are blind or visually impaired
by establishing a vending facility program in which such persons who are in
need of employment are given preference in the operation of vending facilities
selected and installed by the Commission. The Commission is required to administer
BET in accordance with the Commission's vocational rehabilitation objectives.
Therefore, a consumer receiving services from the Vocational Rehabilitation
Program whose employment goal is to be a licensed manager shall have reached
an employment outcome as that term is used in the Rehabilitation Act of 1973
when the consumer is licensed by the Commission and is managing a BET facility.
The licensed manager shall not be considered an employee of the Commission,
state, or federal government.
(c)
Full-time employment. Managing a BET facility shall constitute
full-time employment. Full-time shall mean being actively engaged in the management
of a BET facility at least 40 hours a week unless a different period of time
is approved subsequent to the effective date of this section or a different
period of time has been approved by the Commission in writing prior to the
effective date of this subsection. Management means the personal supervision
of the day-to-day operation of the assigned BET facility by the assigned manager.
(d)
Management subcontracting. The management of a BET facility
shall not be subcontracted except for temporary periods of time approved by
the Commission or in those circumstances in which the Commission deems that
subcontracting the operation of some parts of the facility are in the best
interest of BET. In all events, subcontracting shall require the prior written
consent of the Commission. This subsection shall not affect subcontracts in
existence on the effective date of this subsection.
(e)
Availability of funds. The administration of BET and the
implementation of these policies are contingent upon the availability of funds
for the purposes stated herein.
(f)
BET manual. All BET policies adopted by the board shall
be included in the BET manual. The BET director shall ensure that each manager
is provided with a copy of the manual and any revisions thereto. The manager
shall be responsible for reading the manual and acknowledging in writing that
he or she has read and understands its contents. The BET director shall insure
that the BET manual contains procedures whereby managers may obtain assistance
in understanding BET policies and procedures.
(g)
Accessibility of BET materials. All information produced
by and provided to managers by the Commission shall be in an accessible format.
When possible, materials will be sent in the format requested by the manager.
(h)
Nondiscrimination.
(1)
VR and BET participants. The Commission shall not discriminate
against any blind person who is participating in or who may wish to participate
in Business Enterprises of Texas on the basis of sex, age, religion, color,
creed, national origin, political affiliation, or physical or mental impairment,
insofar as such impairment does not preclude satisfactory performance.
(2)
BET facilities. Managers shall operate BET facilities without
discriminating against any present or prospective supplier, customer, employee,
or other individual who might come into contact with the facility on the basis
of sex, age, religion, color, creed, national origin, political affiliation
or physical or mental impairment.
(i)
Emergencies. The BET director is authorized to expend funds
on an emergency basis for the purpose of protecting the state's investment
in a BET facility not to exceed $15,000 in a fiscal year or $2,500 per facility
incident.
§167.4.BET Administration.
(a)
Executive director. The executive director (subject to
Subchapter A, Chapter 531, Government Code, pertaining to the authority of
the Commissioner of the Health and Human Services Commission over certain
agency functions) is authorized to:
(1)
establish personnel policies for Commission personnel employed
in BET;
(2)
establish BET plans, which at a minimum shall provide for
all services, assistance, training, supervision, and planning necessary for
the implementation and administration of BET; and
(3)
delegate authority to implement these rules to the BET
director.
(b)
BET director. In addition to the responsibilities delegated
to the BET director by the executive director, the BET director shall be responsible
for:
(1)
implementing BET personnel policies and development plans;
and
(2)
disseminating the information developed by the executive
director related to BET plans and policies to all managers.
(c)
Consultants.
(1)
If the Commission determines a consultant is necessary
to assist a manager or protect the interests of the agency, the Commission
shall contract with a consultant and may pay for the consultant out of the
facility revenues. The Commission shall not contract with a consultant when
it possesses the expertise and staffing level to provide the consulting services.
The Commission shall not pay for a consultant with facility revenues if the
manager qualifies for post-employment services as that term is defined in
The Rehabilitation Act of 1973, as amended.
(2)
If the Commission determines a consultant is necessary
to assist a manager who is currently in a facility, the BET director shall
consult with the manager prior to contracting with a consultant. The final
authority, however, for contracting with a consultant shall rest with the
Commission.
(3)
All consultant contracts entered into by the Commission
for the provision of support and mentoring services to the manager shall not
exceed three years in duration, provided, however, that the contract may be
extended for additional periods not to exceed one year each. No contract shall
be extended until the manager has been consulted. The final discretion to
extend the contract shall rest with the Commission.
(4)
If the Commission determines it necessary to contract with
a consultant to protect the interests of the Commission, the Commission shall
enter into a separate agreement for that purpose with such terms and conditions
as the Commission may deem appropriate.
§167.6.BET Licenses.
(a)
Natural persons. Licenses to manage a BET facility shall
be issued only to natural persons.
(b)
Prerequisites. No person may be licensed until such person
has satisfactorily completed all required BET training and otherwise continues
to satisfy the criteria for entry into BET.
(c)
Issuance. A license issued by the Commission shall bear
the name of the manager, date of issue, and contain such other information
as may be deemed to be appropriate from time to time by the executive director.
The license shall be signed by the executive director on behalf of the Commission
and State of Texas.
(d)
Display. The license or a copy of the license shall be
displayed prominently in the enterprise to which the manager is assigned.
(e)
Property right. A license shall not create any property
right in the manager to whom it is issued and shall be deemed only to inform
the public and other interested parties that the manager has successfully
completed BET training and is qualified and authorized to operate a BET facility.
(f)
Transferability. A license is not transferable.
(g)
Term. A license issued by the Commission shall be valid
for an indefinite period, subject, however, to termination, revocation, or
suspension pursuant to conditions specified in these policies pertaining to
termination of license for reasons other than unsatisfactory performance and
administrative action based on unsatisfactory performance.
§167.7.Initial and Career Advancement Assignment Procedures.
(a)
Purpose. This section defines the process for the initial
and career advancement assignments of managers. It is the goal of the process
to provide a fair, unbiased, and impartial process for selection, transfer,
and promotion.
(b)
Initial assignment. Upon successful completion of BET training,
the initial assignment for a newly-licensed manager shall be made by the BET
director. The initial assignment shall be for a minimum of 12 months. The
BET director shall make the assignment based on the following:
(1)
availability of a Level 1 facility;
(2)
recommendations from the BET training specialist and the
ECM chairperson;
(3)
manager's training records;
(4)
manager's geographical concerns; and
(5)
any other circumstances on a case-by-case basis.
(c)
Career advancement assignments.
(1)
Availability. All career advancement opportunities are
dependent upon the availability of BET facilities.
(2)
Notice. As BET facilities become available, written notice
of such availability shall be given to all managers.
(3)
On-site visits. An advertised facility shall be available
for onsite visits upon reasonable notice by applicants.
(4)
Eligibility. To apply for an available facility, a manager
must meet the following requirements:
(A)
The manager must have successfully managed a BET facility
for a minimum of one year.
(B)
The manager must have been current on all accounts payable
for the preceding 12 months prior to the date of the facility announcement.
(C)
The manager must not be on probation under the section
of these rules relating to administrative actions.
(D)
The manager must meet eligibility requirements of the facility's
host organization.
(E)
The manager must not have submitted two or more insufficient
fund checks to the Commission within the 12 months prior to the date of the
facility announcement.
(F)
The manager must not have submitted two or more late reports
within the 12 months prior to the date of the facility announcement.
(G)
If unassigned, the manager must have fulfilled all resignation
requirements in the manager's last facility or be displaced and eligible to
apply for a facility.
(H)
The manager must have an inventory of merchandise and expendables
in the manager's current facility as the Commission has determined sufficient
for its satisfactory operation.
(I)
The manager must satisfy the Commission that he can acquire
the merchandise and expendables required for the available facility.
(J)
A manager who has been placed on probation is not eligible
for promotion and transfer for 30 days following release from probation.
(K)
A manager who has been placed on probation twice within
a twelve-month period is not eligible for promotion or transfer for six months
following release from probation.
(L)
A manager who has been placed on probation three times
within a two-year period is not eligible for promotion or transfer for one
year following release from probation.
(5)
BET application deadline. A manager may apply for an available
facility by submitting an application not later than the 12th business day
(exclusive of date of mailing) after the date the facility notice was mailed.
The submission date shall be:
(A)
the date the application is delivered to the Commission;
or
(B)
3 days after deposit of the application in the United States
mail, whichever is earlier; or
(C)
the date the application is delivered to an overnight courier.
(6)
BET application contents. A copy of the current form of
the application shall be included in the BET manual. The substance of the
application form shall not be modified except by action of the Commission's
board. Modifications shall be provided to all managers prior to their effective
date.
(7)
Preliminary review of applications. Commission staff and
the ECM representative in each geographic area in which the applying managers
are currently located shall review all applications from their areas and shall
verify the applying manager's eligibility and the accuracy of the application.
In the event an ECM representative is an applicant for an available BET facility,
the ECM chairperson shall appoint another ECM member for the review. The reviewing
Commission staff and ECM representative shall provide assistance upon request
to enable the applicant to correctly complete the application. Completed applications
shall then be forwarded to the BET director who shall provide copies to the
ECM and Commission staff in the area in which the available facility is located.
(8)
Level 1 assignments. Assignments to Level 1 facilities
shall be made by the BET director after reviewing the recommendations and
assessments of all applicants conducted by the ECM representative and Commission
staff for the regions in which the available facilities are located.
(9)
Level 2 assignments. For Level 2 assignments, the following
additional procedures shall apply:
(A)
Business plan. An applicant must submit a business plan
to the BET director no later than the 20th business day after the postmark
date on the notice of facility availability. Upon request by an applicant,
the Commission staff in the area in which the available facility is located
shall provide a standard packet of information to the applicant containing
information necessary to prepare the business plan. The Commission staff shall
deliver the packet to the applicant no later than the 3rd business day after
receiving a request.
(B)
Establishment of pool of impartial and qualified individuals.
The Commission shall establish and maintain a pool of qualified individuals.
The pool members shall be individuals who:
(i)
have no personal, professional, or financial interest that
would be in conflict with the objectivity of the individual;
(ii)
neither have nor have had any association with the Commission
or Business Enterprises of Texas prior to being considered as a pool member;
and
(iii)
have at least 5 years experience in business at a managerial
or executive level, including experience in budget preparation and administration,
personnel supervision or management; and administration of business plans
or equivalents to business plans in the sector of business in which the person
has experience.
(C)
Evaluation of business plans. All business plans shall
be reviewed and evaluated by an individual chosen at random from the pool
of impartial and qualified individuals. Business plans shall be evaluated
and scored based on a scoring system of 100 points. The evaluations and scores
shall then be forwarded to the BET director for consideration by the selection
panel in the selection process.
(D)
Selection panel. A selection panel consisting of one representative
from the ECM, one Commission staff member, and one individual from the pool
of impartial and qualified individuals shall be chosen by means of a computer
program that selects randomly from a database. The selection of each panel
member shall be from among all persons within their respective categories,
except that the impartial member may not be the individual who evaluated the
business plans. If the member of a category of panel members who is selected
is unable or refuses to serve, the BET director shall use the same method
of random selection until three members are chosen.
(E)
Presiding officer. The impartial panel member shall serve
as the presiding officer of the selection panel.
(F)
Interview notices. Applicants shall be notified by first
class U. S. Mail of the date, place and time of the selection panel interview
no fewer than 10 business days prior to the convening of the selection panel.
(G)
Selection panel materials. Completed applications and business
plans shall be provided to the selection panel members no fewer than 5 business
days prior to the date the selection panel is to convene.
(H)
Duties of selection panel. The selection panel shall review
the documents provided and interview the applicants. The selection panel shall
then rank the top three applicants. The selections shall be transmitted to
the BET director, who shall in turn notify the highest ranked applicant of
the decision of the selection panel. The available facility shall be offered
to the applicants in order of ranking.
(I)
Reports of improper contact. Members of the selection panel
must report improper contacts to the BET director or the executive director.
Improper contact is defined as any communication with a member of the selection
panel for the purpose of influencing or manipulating, directly or indirectly,
the selection of an applicant for the facility being considered for assignment.
Nothing contained in this section, however, shall be deemed to prohibit any
manager from endorsing or supporting any candidate for selection by furnishing
a letter or other document to that effect to be included with the applying
manager's application. At the conclusion of the selection panel's responsibilities,
each panel member shall be required to sign a statement certifying whether
the member had, or had knowledge of, an improper contact during the selection
proceedings.
(J)
Process for investigating reports of improper contact.
When improper contact is reported, each applicant for the facility under consideration
shall be informed as to the improper contact. The information provided to
the applicants shall describe the nature of the improper contact but shall
not divulge the identities of any persons allegedly participating in such
improper contact. Each applicant may make objection to continuation by the
existing panel and request that a new panel be formed to select the manager
for the available facility. The executive director, upon the request of any
applicant for the facility or upon the request of the BET director, shall
determine if the improper contact is such as to require that the panel be
disbanded and a new panel formed. In making that decision, the executive director
shall consider all relevant factors, including the objections, if any, of
the applicants, to determine if the improper contact is likely to influence
the decision of the selection panel. If the executive director determines
that the improper contact is likely to influence the selection process, the
executive director shall direct that the panel be disbanded and that a new
panel be formed to consider the selection for the facility being considered.
The executive director shall inform all applicants of his decision to continue
the selection process with the existing panel or to form a new panel and shall
state the basis of the decision. The actions prescribed as a consequence of
improper contact set forth in policies pertaining to administrative actions
shall apply whether or not any improper contact results in the panel being
disbanded.
(K)
Exceptions to assignment and selection procedures. Unusual
circumstances may require exceptions to assignment and selection procedures.
Exceptions to these procedures shall be made only if the circumstance is not
covered by assignment procedures and failure to react to the circumstance
would be detrimental to BET or a manager. Notwithstanding anything in this
section, no exceptional procedure shall result in the removal of a manager
from a facility except for reasons contained in policies pertaining to administrative
actions. Assignment and selection decisions that are exceptions to these procedures
shall be made by the BET director after discussing relevant information with
the ECM chairperson and receiving the chairperson's recommendation. Should
a decision contrary to the ECM chairperson's recommendation be made, the BET
director shall provide a written explanation of the decision to the ECM chairperson.
§167.8.Fixtures, Furnishings, and Equipment; Initial Inventory and Expendables.
(a)
Survey. When a BET facility becomes available for assignment
to a manager, Commission staff shall conduct a survey of the site to determine
the fixtures, furnishings, and equipment required to allow the facility to
operate in accordance with projections by Commission staff as to the potential
for the facility. When such facility is an existing one, the survey shall
consider the need for replacement or repair of fixtures, furnishings, and
equipment.
(b)
Facility plan. Commission staff shall prepare a detailed
schedule of the requirements for fixtures, furnishings, and equipment for
the facility, including specifications for each item required and a site plan
of the facility depicting the placement of the fixtures, furnishings, and
equipment within the facility.
(c)
Acquisition, placement, and installation. When satisfied
as to the fixtures, furnishings, and equipment required for the facility,
Commission staff shall cause the necessary fixtures, furnishings, and equipment
to be purchased or otherwise acquired and placed and/or installed in or upon
the facility in accordance with the approved plans.
(d)
Ownership.
(1)
All state fixtures, furnishings, and equipment within the
facility shall at all times remain the property of the State of Texas. Their
use by the facility manager shall be as a licensee only.
(2)
The Commission shall have the sole authority to direct,
control, transfer, and dispose of such fixtures, furnishings, and equipment
as it determines to be appropriate and necessary.
(e)
Modifications. No modifications or alterations shall be
made to state-owned fixtures, furnishings, and equipment by any person, firm,
or entity without the express prior written approval of the Commission, which
shall be granted or not granted solely at the discretion of the Commission.
(f)
Upkeep and maintenance.
(1)
The manager assigned to a facility shall be provided with
manuals, instructions, and guides in an accessible format to state-owned fixtures,
furnishings, and equipment within the facility.
(2)
It shall be the responsibility of the manager to keep Commission
fixtures, furnishings, and equipment in a clean and sanitary condition and
to perform maintenance required or recommended by the manufacturers or vendors
of the fixtures, furnishings, and equipment.
(3)
The manager shall keep and maintain accurate records of
all maintenance performed on Commission fixtures, furnishings, and equipment.
Any failure or refusal of the manager to perform the maintenance referred
to herein shall result in the manager being required to reimburse the Commission
for any cost or expense resulting from such failure or refusal.
(g)
Repairs and replacements.
(1)
The Commission shall be responsible for all necessary repairs
of any of the state-owned fixtures, furnishings, and equipment located within
the facility except for repairs necessitated by the negligence, abuse, or
misuse of the fixtures, furnishings, or equipment by the manager or the manager's
employees. The cost of repairs necessitated by negligence, abuse, or misuse
by the manager or the manager's employees shall be the sole responsibility
of the manager. Failure to make such repairs shall result in administrative
action pursuant to these rules.
(2)
The BET director shall establish and implement procedures
for effecting the timely necessary repairs and for the payment for such services.
There shall be included in these procedures specific procedures for initiating
repairs by the manager and a list of approved vendors for repairs, which shall
be provided to each manager as published and as revised from time to time.
(3)
Under no circumstances is a manager authorized to have
the cost of repairs charged to the Commission or have repairs made by anyone
other than approved vendors unless specific authority to do so has been given
to the manager in writing by Commission staff. Each vendor included in the
approved list of vendors for repairs shall be informed by Commission staff
of this prohibition and of the procedures for authorized repairs and for payment
for services.
(4)
Commission staff on their own initiative or upon request
by a manager shall determine the need for replacement of any fixtures, furnishings,
or equipment. If such need is determined, Commission staff shall report the
need to the BET director. If authorized by the BET director, replacement fixtures,
furnishings, or equipment shall be acquired from available BET funds.
(5)
Fixtures, furnishings, and equipment shall not include
expendables. Each manager of a facility shall be responsible for replacing
all such items with items of comparable quality as those being replaced and
originally furnished by the Commission.
(h)
Initial inventory of merchandise and expendables for newly-licensed
managers. The Commission shall furnish without charge the initial inventory
of merchandise and expendables for the first facility of a newly-licensed
manager. The initial inventory of merchandise and expendables shall be sufficient,
as projected by the Commission, to provide the manager with merchandise and
expendables for 30 days.
(i)
Subsequent inventory of merchandise and expendables.
(1)
The manager shall maintain an inventory of merchandise
and expendables in the same quantity as the initial merchandise and expendables
transferred to the manager upon assignment to the facility. If the Commission
determines that changed circumstances require a different amount of merchandise
and expendables, the Commission shall communicate in writing to the manager
the new amount of merchandise and expendables. If a new amount of merchandise
and expendables is necessary to provide for the satisfactory operation of
the facility, that new amount of inventory must be maintained by the manager.
(2)
Managers assigned to any facility other than their initial
assignment in Texas shall acquire the merchandise and expendables as determined
by the Commission to be sufficient to satisfactorily operate the facility.
(j)
Purchases on credit. Managers must notify the Commission
in advance of any purchase of merchandise and expendables on credit.
(k)
Obtaining an advance from the Commission for initial inventory.
Managers may apply to the Commission for an advance to purchase an initial
inventory of merchandise and expendables. The granting of an advance is discretionary
and may be granted only under the following conditions:
(1)
The manager must satisfy the Commission in writing as to
why the advance is needed and why the funds are not available from other sources.
(2)
Before an advance is granted by the Commission pursuant
to this section, the manager must submit evidence satisfactory to the Commission
that the financing has been sought from at least two commercial financial
institutions, such as, by way of example, the Small Business Administration,
banks, savings and loans, credit unions, or like institutions.
(3)
The manager shall satisfy the Commission as to the manager's
ability to repay the advance within 12 months.
(4)
Managers with outstanding balances on advances are not
eligible for transfer to another assignment.
(l)
Transfer of fixtures, furnishings, equipment, and inventory
of merchandise and expendable Items. When a manager is assigned to an existing
BET facility, the responsibility for the fixtures, furnishings, and equipment
of that facility, as well as its inventory of merchandise and expendable items,
shall be transferred to the incoming manager. The BET director shall develop
and implement procedures for effecting such transfers to assure that both
the incoming and outgoing managers have full knowledge of the nature and condition
of the items being transferred.
§167.13.Termination of License for Reasons Other Than Unsatisfactory Performance.
(a)
Causes for termination. The license of a manager shall
be terminated upon the occurrence of any one of the following:
(1)
The manager's visual acuity is improved by any means to
the point at which the manager no longer satisfies the definition of blind.
(2)
The manager becomes otherwise permanently disabled and
as a result of such permanent disability is unable to perform the essential
functions of operating and maintaining a BET facility. Permanently disabled
is a condition that is medically documented and has existed or is expected
to exist for at least twelve months. The determination of permanently disabled
shall be made by the executive director or his designee after review of medical
documentation and other information relevant to the issue. Other information
relevant to the issue shall include recommendations from Commission staff
and the ECM, pertinent information from the manager's BET file or provided
by the manager, and reports of examinations or evaluations, if any, obtained
by the Commission and the manager.
(3)
The manager is unassigned and has not applied for an assignment
for a period of 12 consecutive months.
(b)
Examination and evaluation. In any situation in which the
vision or other disability of a manager is at issue with respect to termination
of a license, the Commission or the manager may require an examination or
evaluation by professionals to determine whether the manager is otherwise
permanently disabled and as a result of such permanent disability is unable
to perform the essential functions of operating and maintaining a BET facility.
The reports of such professionals shall be furnished to the executive director
and manager. Any failure of the manager to participate in required examinations
or evaluations shall be grounds for administrative action.
(c)
Restoration of license. A license terminated under the
provisions of this section may be restored at the discretion of the executive
director if the condition or conditions causing the termination have been
satisfactorily resolved. In considering a decision whether to restore a license
terminated according to this section, the executive director shall consult
with appropriate BET staff, the ECM chairperson, and any advocate for the
manager and shall consider all pertinent information and/or documentation
provided by any of the persons described in this subsection.
(d)
Conditional restoration. If the executive director determines
that a license terminated according to this section should be restored, the
executive director may condition the restoration of the license on any reasonable
matters, such as, by way of illustration, continued medical treatment or therapy,
or completion of refresher or other courses of training.
§167.14.Administrative Action Based on Unsatisfactory Performance.
(a)
Causes for administrative action based on unsatisfactory
performance. The happening of any one or more of the following acts or omissions
by a manager shall subject a manager to administrative action for unsatisfactory
performance:
(1)
Failing to personally operate the assigned facility as
set forth in the permit or contract with the host and/or in the manager's
record of assignment unless prior written approval to operate the facility
in another manner has been obtained from the Commission.
(2)
Failing to pay moneys due from the operation of the facility,
including, but not limited to, taxes, fees, or assessments to a governmental
entity or supplier, or knowingly giving false or deceptive information to
or failing to disclose required information to or misleading in any manner
a governmental entity (including the Commission) or a supplier.
(3)
Failing to file required financial and other records with
the Commission or preserve them for the time required by these policies and
procedures.
(4)
Failing to cooperate in a timely manner with audits conducted
by the Commission or other state or federal agencies.
(5)
Failing to maintain insurance coverage required by these
policies and procedures.
(6)
Using BET equipment or facility premises to operate another
business.
(7)
Failing to properly maintain facility equipment in a clean
and operable condition within the scope of the manager's level of maintenance
authorization.
(8)
Intentionally abusing, neglecting, using, or removing facility
equipment without written Commission authorization.
(9)
Substance abuse while operating a facility; or other abusive
use of substances that interferes with the operation of the facility.
(10)
Operating a BET facility in a manner that endangers the
Commission's investment in the facility.
(11)
Using privileged information concerning an existing facility
to compete with the Commission for the facility.
(12)
Failing to comply with any federal or state law prohibiting
discrimination and failure to assure services without distinction on the basis
of race, gender, color, national origin, religion, age, political affiliation,
or disability.
(13)
Failing to maintain the necessary skills and abilities
for effectively managing a facility.
(14)
Using a facility to conduct unlawful activities.
(15)
Failing to comply with the manager's responsibilities
under applicable law, these rules, the requirements of the BET manual, or
any proper and authorized instruction by Commission personnel.
(b)
Acts of improper contact. The participation in any one
or more of the following acts or omissions by a manager shall result in termination
of the manager's license:
(1)
Contacting or communicating with a member of a selection
panel or an applicant for a facility then being considered for assignment
for the purpose of influencing or manipulating, directly or indirectly, the
selection of an applicant for the facility being considered for assignment.
(2)
Causing another person to contact or communicate with a
member of a selection panel or an applicant for a facility then being considered
for assignment for the purpose of influencing or manipulating, directly or
indirectly, the selection of an applicant for the facility being considered
for assignment.
(3)
Giving or offering to give, directly or indirectly, expressly
or by implication, a thing of value, tangible or intangible, including promises
of future benefit, for the purpose of influencing or manipulating any decision
or process of BET.
(4)
Causing another person to give or offer to give, directly
or indirectly, expressly or by implication, a thing of value, tangible or
intangible, including promises of future benefit, for the purpose of influencing
or manipulating any decision or process of BET.
(c)
Administrative action pending an appeal. The Commission
may at its discretion suspend administrative action pending the outcome of
an appeal.
(d)
Types of administrative actions. There are four types of
administrative actions based on unsatisfactory performance:
(1)
Written reprimand. Written reprimand means a formal statement
describing violations of applicable law, these rules, the requirements of
the BET manual, or any proper and authorized instruction by Commission personnel.
(2)
Probation. Probation means allowing a manager to continue
in BET in an effort to satisfactorily remedy a condition that is not acceptable
under these rules. If the condition causing probation is satisfactorily remedied
within the time periods specified in the written notice of probation, the
probation will be lifted. If the unacceptable condition is not remedied within
the time specified, additional and more serious administrative actions may
ensue. When a manager who has been on probation three times in a three-year
period qualifies for probation for the fourth time within said three years,
the Licensed Manager's license may be revoked according to Commission procedures.
(3)
Loss of facility. Loss of facility means the removal of
a manager from the manager's current facility for administrative reasons.
(4)
Termination. Termination means the cessation of a license
issued to a manager to operate a facility and the removal of the manager from
BET.
(e)
Administrative action procedures.
(1)
The Commission shall make the decision as to what administrative
action to take based upon the seriousness of the violation, the damage to
BET, and the manager's record. The foregoing language notwithstanding, when
the act or omission alleged to be a matter requiring administrative action
is one or more of those described in subsection (b) of this section, the only
administrative action available shall be termination of the license.
(2)
Upon receipt of information which indicates that administrative
action may be appropriate, the Commission shall take the following actions
prior to making a determination as to taking administrative action:
(A)
The Commission shall notify the manager in writing of the
allegations and reasons that administrative action is being considered. The
notice shall either be hand delivered and read to the manager, or it shall
be delivered to the manager's work or home address.
(B)
The manager shall have 5 business days to respond, either
in person or in writing, to the notice. The response shall be made to the
individual designated in the notice. After receiving the manager's response,
the Commission shall decide what administrative action, if any, is appropriate.
If no response is timely received from the manager, the Commission shall decide
what administrative action, if any, is to be taken without the manager's response.
(C)
If a decision is made to issue a written reprimand, the
written reprimand will be accompanied by a brief summary of the evidence justifying
the reprimand, suggested steps for correcting the violation, and consequences
of not correcting the violation. All reprimands shall contain notice of the
manager's right to appeal the reprimand and a statement that failure to correct
the violation may result in further administrative action.
(D)
If a decision is made to place a manager on probation,
the Commission shall deliver to the manager a letter of probation containing
the following:
(i)
the specific reasons for probation;
(ii)
the remedial action required to remove the manager from
probation;
(iii)
the time within which said remedial action must take
place;
(iv)
the consequences of failure to take remedial action within
the prescribed time frame; and
(v)
notice of the manager's right to appeal.
(E)
Upon satisfactory completion of the remedial action outlined
in the letter of probation, a manager shall be removed from probation.
(F)
Failure of the manager to complete remedial requirements
within the prescribed time frame shall result in one or more of the following
actions:
(i)
required training;
(ii)
extension of probation;
(iii)
restrictions on applying for another facility;
(iv)
removal from the facility;
(v)
termination of license.
(G)
If, after the manager has had an opportunity to respond,
a decision is made that sufficient grounds exist to remove the manager from
a facility, the Commission shall notify the manager in writing by hand delivery
or certified U. S. Mail, return receipt requested, that the manager's assignment
to the BET facility has been terminated and the manager must vacate the facility.
The removal letter shall contain the following information:
(i)
specific reasons for removal from the facility;
(ii)
actions required by the manager, if any;
(iii)
requirements for obtaining reassignment; and
(iv)
notice of the manager's right to appeal.
(H)
If, after the manager has had an opportunity to respond,
a decision is made that sufficient grounds exist for termination, the Commission
shall notify the manager in writing by hand delivery or certified U. S. Mail,
return receipt requested, that the Commission has decided that sufficient
cause exists to terminate the manager's license. The manager shall be instructed
to vacate the facility if the manager has not already done so. The termination
letter shall contain the following information:
(i)
specific reasons for termination;
(ii)
actions required by the manager, if any;
(iii)
procedures for applying for any other Commission services
for which the person may be eligible; and
(iv)
notice of the manager's rights under the Randolph-Sheppard
Act.
(3)
The provisions of paragraph (2) notwithstanding, pending
a determination with respect to administrative action, a manager may be removed
from a facility if the Commission considers such removal in the best interest
of BET.
(4)
During the license termination process, the manager shall
not be eligible for assignment to any other BET facility.
§167.15.Procedures for Resolution of Manager's Dissatisfaction.
(a)
Appealable actions. These rules provide the procedures
for managers who are dissatisfied with a Commission action arising from the
operation of BET.
(b)
Actions not subject to appeal. The phrase "Commission action
arising from the operation of BET" in subsection (a) does not include the
following actions of the Commission:
(1)
the hiring, firing or discipline of Commission employees;
(2)
the challenge of federal or state law, or rules previously
approved by the Secretary of Education pursuant to the Randolph-Sheppard Act;
or
(3)
an action by the Commission unless it is alleged that the
action is in violation of applicable law, these rules, the requirements of
the BET manual, any proper and authorized instruction by Commission personnel,
or is unreasonable. Unreasonable shall mean without rational basis or arbitrary
and capricious.
(c)
Commission discretion and sovereign immunity. The Commission
does not waive its right and duty to exercise its lawful and proper discretion.
The Commission does not waive its sovereign immunity.
(d)
Remedies. Remedies available to resolve dissatisfaction
shall correct the action complained of from the earlier time of:
(1)
agreement by the parties as to an appropriate remedy, or
(2)
a final resolution pursuant to the Randolph-Sheppard Act
that the Commission acted in violation of applicable law, these rules, the
requirements of the BET manual, any proper and authorized instruction by Commission
personnel, or acted unreasonably.
(e)
Informal administrative review. The manager has the right
to request an informal administrative review to resolve a dissatisfaction.
The purpose of an informal administrative review is to allow a manager a quick
means for resolving a dissatisfaction arising from the operation or administration
of BET. The Commission shall attempt to resolve complaints at the informal
administrative review level. Informal administrative reviews shall be conducted
according to the following:
(1)
The manager or manager's representative must submit a written
request for an informal administrative review no later than the 20th business
day after the occurrence of the disputed action. The request shall be considered
timely if it is either postmarked or delivered to the Commission within said
20 business days.
(2)
An informal administrative review shall be conducted only
by a member or members of the administrative staff of the Commission who have
not participated in the Commission action in question.
(3)
The written request for an informal administrative review
must describe with reasonable particularity the specific action sufficient
to provide notice as to the action which is alleged to be unreasonable or
in violation of applicable law, these rules, the requirements of the BET manual,
or any proper and authorized instruction by Commission personnel. The request
must, to the best of the Complainant's knowledge, contain the dates those
actions occurred and the law or regulation must be reasonably identified if
an action is alleged to be in violation of law, these rules, the requirements
of the BET manual, or regulation. The request must also identify the desired
relief or remedy.
(4)
The informal administrative review shall be held during
regular Commission working hours at a district or local office location. Unless
agreed otherwise by the parties, an informal administrative review shall be
conducted no later than the 45th business day after the date the Commission
receives the request.
(5)
Reader or other communication services, if needed, shall
be arranged for the manager by the Commission upon request by the manager
at least three business days prior to the review date.
(6)
The Commission staff member conducting the informal administrative
review shall determine whether the action arising out of the operation or
administration of BET was in violation of applicable law, these rules, the
requirements of the BET manual, any proper and authorized instruction by Commission
personnel or is unreasonable. If the action is found to be not in violation
of applicable law, these rules, the requirements of the BET manual, any proper
and authorized instruction by Commission personnel or not unreasonable, the
staff member shall not substitute his discretion for that of the discretion
exercised by the Commission.
(7)
The reviewing Commission staff member shall prepare brief
findings of fact, conclusions, and recommendations no later than the 10th
business day after the conclusion of the review. These shall be sent to the
executive director, who shall review them and make his own determination as
to whether to accept the findings, conclusions and recommendation of the reviewing
staff member. The executive director shall inform the manager of his decision
in writing no later than the 10th business day after receipt of the recommendation.
(8)
When an informal administrative review does not resolve
a dispute to the satisfaction of a manager, such manager may request a full
evidentiary hearing in accordance with the provisions of these rules and regulations.
(f)
Full evidentiary hearing. A manager has the right to request
a full evidentiary hearing to resolve a dissatisfaction according to the following:
(1)
A manager has the right to request a full evidentiary hearing
without first going through an informal administrative review.
(2)
A request for an evidentiary hearing must be made no later
than the 20th business day after the occurrence of the agency action about
which the manager complains. The executive director, upon request of the complaining
party, may extend the time period for filing a grievance upon the showing
of good cause by the complaining party for such additional period if such
request is made no later than the 20th business day after the occurrence of
the agency action about which the manager complains.
(3)
A manager requesting a full evidentiary hearing after the
conduct of an informal administrative review must request such hearing in
writing no later than the 20th business day after receipt of the executive
director's decision.
(4)
A request for a full evidentiary hearing must be in writing
and transmitted to the executive director. A request that is postmarked within
the applicable time frame shall be considered timely delivered if properly
posted.
(5)
The request for a full evidentiary hearing must describe
the specific action with reasonable particularity sufficient to provide notice
as to the action which is alleged to be unreasonable or in violation of applicable
law, these rules, the requirements of the BET manual, or any proper and authorized
instruction by Commission personnel. The request must, to the best of the
complainant's knowledge, contain the date the action occurred and the law
or regulation must be reasonably identified if an action is alleged to be
in violation of law, these rules, the requirements of the BET manual, or regulation.
The request must also identify the desired relief or remedy.
(6)
The manager may be represented in the evidentiary hearing
by legal counsel or other representative of the manager's choice, at the manager's
expense.
(7)
Reader or other communication services, if needed, shall
be arranged for the manager by the Commission upon request by the manager
at least three business days prior to the hearing date.
(8)
The manager shall be notified in writing of the time and
place fixed for the hearing and of the manager's right to be represented by
legal or other counsel.
(9)
The presiding officer at the hearing shall be an impartial
and qualified official who has no involvement either with the Commission action
which is at issue or with the administration or operation of BET.
(10)
Hearings shall be conducted in accordance with the Randolph-Sheppard
Act, these rules, and the State Office of Administrative Hearings (SOAH) procedures
for hearing contested case hearings contained in 1 TAC §105.1 et seq.
to the extent those procedures do not conflict with the Act or these rules.
(11)
Managers bringing complaints shall have the burden of
proving their cases by the preponderance of evidence. Managers shall present
their evidence first.
(12)
A record shall be made of the evidence and shall be made
available to the parties by the Commission no later than the 30th business
day after the close of the hearing.
(13)
The hearing officer shall issue a recommendation which
shall set forth the principal issues and relevant facts adduced at the hearing
and the applicable provisions of law, rule, the requirements of the BET manual,
or any proper and authorized instruction by Commission personnel. The recommendation
shall contain findings of fact and conclusions with respect to each of the
issues, and the reasons and bases for the conclusions.
(14)
In formulating a recommendation, the hearing officer shall
not evaluate whether the Commission's actions were wise, efficient, or effective.
Rather, the hearing officer is limited to determining whether the Commission's
actions were unreasonable, or violated applicable law, these rules, the requirements
of the BET manual, or any proper and authorized instruction by Commission
personnel.
(15)
Should the hearing officer find that the actions taken
by the Commission were unreasonable, or violated applicable law, these rules,
the requirements of the BET manual, or any proper and authorized instruction
by Commission personnel, the hearing officer shall also recommend any prospective
action necessary to correct the violations.
(16)
The hearing officer's recommendation shall be made no
later than the 30th business day after the receipt of the official transcript.
The recommendation shall be delivered promptly to the executive director.
(17)
The executive director shall review the recommendation
of the hearing officer and forward a decision to the manager no later than
the 20th business day after receipt of the hearing officer's recommendation.
(g)
Arbitration. A manager appealing the Commission's decision
must file a complaint with the Secretary of Education in conformity with the
provisions of Sec. 395.13 of the Act, pertaining to arbitration of vendor
complaints.
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 August 7, 2001.
TRD-200104512
Terrell I. Murphy
Executive Director
Texas Commission for the Blind
Effective date: March 1, 2002
Proposal publication date: March 23, 2001
For further information, please call: (512) 377-0611
Chapter 183.
BOARD FOR EVALUATION OF INTERPRETERS AND INTERPRETER CERTIFICATION
Subchapter B. BOARD CERTIFICATION EVALUATION
Chapter 20.
COST DETERMINATION PROCESS
Part 3.
TEXAS COMMISSION ON ALCOHOL AND DRUG ABUSE
Subchapter B. CONTRACT ADMINISTRATION
Subchapter D. ORGANIZATIONAL
Subchapter E. PREVENTION AND INTERVENTION
Subchapter F. TREATMENT
Chapter 148.
FACILITY LICENSURE
Subchapter B. FACILITY MANAGEMENT
Subchapter C. CLIENT MANAGEMENT
Subchapter D. PROGRAM SERVICES
Subchapter E. TREATMENT PROCESS
Subchapter F. PHYSICAL PLANT
Chapter 148.
FACILITY LICENSURE
Subchapter B. LICENSURE INFORMATION
Subchapter C. FACILITY MANAGEMENT
Subchapter D. PERSONNEL AND STAFF DEVELOPMENT
Subchapter E. CLIENT RIGHTS
Subchapter F. PROGRAM SERVICES
Subchapter G. MEDICATION
Subchapter H. RESIDENTIAL PHYSICAL PLANT REQUIREMENTS
Part 4.
TEXAS COMMISSION FOR THE BLIND
Chapter 163.
VOCATIONAL REHABILITATION PROGRAM
Chapter 167.
BUSINESS ENTERPRISES PROGRAM
Chapter 167.
BUSINESS ENTERPRISES OF TEXAS
Part 6.
TEXAS COMMISSION FOR THE DEAF AND HARD OF HEARING