Part 1.
TEXAS DEPARTMENT OF HUMAN SERVICES
Chapter 3.
TEXAS WORKS
Subchapter CC. CLAIMS
40 TAC §3.2901
The Texas Department of Human Services (DHS) proposes to
amend §3.2901, concerning client responsibility to repay, in its Texas
Works chapter. The purpose of the amendment is to add the requirement for
DHS to establish and collect claims against Food Stamp clients who are found
guilty of intentional violations for trafficking.
Jerry W. Friedman, Executive Deputy Commissioner, has determined that for
the first five-year period the proposed section will be in effect there will
be no fiscal implications for state or local governments as a result of enforcing
or administering the section.
Mr. Friedman also has determined that for each year of the first five years
the section is in effect the public benefit anticipated as a result of adoption
of the proposed rule will be to deter the misuse of Food Stamp benefits and
allow the recovery of any misused benefits from the households that commit
intentional program violations due to trafficking. There will be no effect
on small or micro businesses as a result of enforcing or administering the
section, because it will act as a deterrent to fraud and abuse in the Food
Stamp program. There is no anticipated economic cost to persons who are required
to comply with the proposed section.
Questions about the content of this proposal may be directed to Diane Donaldson
at (512) 231-5746 in DHS's Office of Program Integrity section. Written comments
on the proposal may be submitted to Supervisor, Rules and Handbooks Unit-155,
Texas Department of Human Services E-205, P.O. Box 149030, Austin, Texas 78714-9030,
within 30 days of publication in the
Texas Register
.
Under §2007.003(b) of the Texas Government Code, the department has
determined that Chapter 2007 of the Government Code does not apply to these
rules. Accordingly, the department is not required to complete a takings impact
assessment regarding these rules.
The amendment is adopted under the Human Resources Code, Title
2, Chapter 22 and Chapter 31, which authorizes the department to administer
public and financial assistance programs.
The amendment implements the Human Resources Code, §§22.001-
22.030 and §§31.001-31.0325, and 7 Code of Federal Regulations,
Section 273.18.
§3.2901.Client Responsibility to Repay.
(a)
(No change.)
(b)
Food stamps.
(1)
Clients must repay any benefits they receive
that they are not entitled to as stipulated in the Food Stamp Act of 1977
as amended by Title VIII, Sections 809 and 844, of Public Law [
(2)
Clients must repay benefits
that are trafficked when they commit an intentional program violation for
the purpose of buying or selling coupons, Authorization to Purchase (ATP)
cards, or other benefit instruments for cash or consideration other than eligible
food. Clients must repay benefits if they exchange them for firearms, ammunition,
explosives, or controlled substances.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State, on June 25, 2001.
TRD-200103605
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: August 5, 2001
For further information, please call: (512) 438-3108
Chapter 104.
INFORMAL APPEALS, AND MEDIATION BY APPLICANTS/CLIENTS OF DETERMINATIONS BY AGENCY PERSONNEL THAT AFFECT THE PROVISION OF VOCATIONAL REHABILITATION SERVICES
40 TAC §104.3
The Texas Rehabilitation Commission (TRC) proposes a change
to Title 40, Chapter 104, §104.3, concerning informal appeals, formal
appeals, and mediation by applicants/clients of determinations by agency personnel
that affect the provision of vocational rehabilitation services by TRC. The
change is being proposed to bring TRC's rules into conformance with regulations
issued by the US Department of Education at 34 CFR §361.57(b)(1).
Charles E. Harrison, Jr., Deputy Commissioner for Financial Services, has
determined that for the first five-year period the section is in effect, there
will be no material fiscal implications for state or local government.
Mr. Harrison also has determined that for each year of the first five years
the section is in effect the public benefit anticipated as a result of enforcing
the section will be the agency's compliance with Chapter 111, Human Resources
Code. There will be no material effect on small businesses. There is no material
anticipated economic cost to persons who are required to comply with the section
as proposed.
Comments on the proposal may be submitted to Roger Darley, Assistant General
Counsel, Texas Rehabilitation Commission, 4900 North Lamar Boulevard, Suite
7300, Austin, Texas 78751.
The amendment is proposed under the Texas Human Resources Code,
Title 7, Chapter 111, §111.018 and §111.023, which provides the
Texas Rehabilitation Commission with the authority to promulgate rules consistent
with Title 7, Texas Human Resources Code.
No other statute, article, or code is affected by this proposal.
§104.3.General Provisions.
(a)
General. The formal appeal and mediation process commences
with the filing of a Petition for Administrative Hearing with the Office for
Administrative Hearings and Subrogation. Appeals of determinations made by
personnel of the commission that affect the provision of vocational rehabilitation
services to applicants or eligible individuals may be made concerning:
(1)
applicants for vocational rehabilitation services; and
(2)
clients.
(b)
Jurisdiction.
(1)
The Impartial Hearing Officer acquires jurisdiction over
a case after a client files a Petition for Administrative Hearing and the
IHO is appointed pursuant to these rules.
(2)
A Petition for Administrative Hearing shall be considered
filed on the date the Petition is received and date-stamped by the Office
for Administrative Hearings and Subrogation.
(3)
The IHO's authority is limited to a review of a client's
dissatisfaction with the furnishing or denial of services by personnel of
the Commission. The IHO does not have authority to:
(A)
change or alter rules, policies, or procedures of the Commission;
(B)
hear alleged violations of the Americans with Disabilities
Act, §504 of the Act, or other federal laws; or
(C)
hear or decide class actions.
(c)
Conduct and Decorum. Appropriate conduct and decorum shall
be maintained and enforced by the IHO. Every party, witness, attorney, or
other representative shall participate in all proceedings with proper dignity,
courtesy, and respect for the Commission, the IHO, and all other parties.
Attorneys and other representatives or parties shall observe and practice
a high standard of ethical behavior.
(d)
Computation of Time.
(1)
Unless otherwise required by law in computing any period
of time prescribed or allowed by these rules, the date of the act, event,
or default after which the designated period of time begins to run is not
to be included. The last day of the period so computed is to be included,
unless such day is a Saturday, Sunday, or legal holiday, in which event the
period runs until the end of the next day which is neither a Saturday, Sunday,
nor legal holiday. Unless specifically stated otherwise, "days" as used in
these policies refer to calendar days.
(2)
Unless otherwise provided by statute, the time for filing
any pleading may be extended by order of the IHO at the request of any party
upon written motion duly filed with the Office for Administrative Hearings
and Subrogation prior to the expiration of the applicable period of time for
the filing of same. Said motion shall include a showing that there is good
cause for such extension of time and that the need therefor is not caused
by neglect, indifference, or lack of diligence of the movant. A copy of any
such motion shall be served upon all other parties of record to the proceeding
contemporaneously with the filing thereof. Any party may file written pleadings
contesting a motion to extend which shall be served upon all other parties
contemporaneously with the filing thereof.
(3)
The date upon which a pleading or motion is filed is the
date on which it is received and date-stamped by the Office for Administrative
Hearings and Subrogation.
(e)
Appearances and right to representation. Any party may
appear on his/her own behalf or may be represented by an attorney at law in
good standing with the State Bar of Texas or by an authorized representative.
The IHO may require any person appearing in a representative capacity to provide
such evidence of his authority as the IHO may deem necessary.
(f)
Notification.
(1)
An applicant or eligible individual or,
as appropriate, the individual's representative will be provided notice of
the right to obtain review of TRC determinations that affect the provision
of vocational rehabilitation services through an impartial due process hearing
under §104.5 of this chapter; the right to pursue mediation under §104.5(c)
of this chapter with respect to determinations made by TRC personnel that
affect the provision of vocational rehabilitation services to an applicant
or eligible individual; the names and addresses of individuals with whom requests
for mediation or due process hearings may be filed; the manner in which a
mediator or impartial hearing officer may be selected consistent with the
requirements of §104.5 of this chapter; and the availability of the client
assistance program, established under 34 CFR part 370, to assist the applicant
or eligible individual during mediation sessions or impartial due process
hearings. The notice will be provided in writing at the time the individual
applies for vocational rehabilitation services under this part; at the time
the individual is assigned to a category in the State's order of selection,
for programs within which an order of selection has been established; at the
time the IPE is developed; and whenever vocational rehabilitation services
for an individual are reduced, suspended, or terminated.
[(1)
An applicant or an eligible individual
or, as appropriate, the applicant's representative or individual's representative,
shall be notified of the right to obtain review of determinations described
in subsection (a) of this section in an impartial due process hearing under
subsection (h) of this section, and of the right to pursue mediation with
respect to the determinations under §104.5(c) of this title (relating
to Formal Appeal and Mediation), and of the availability of assistance from
the client assistance program. Such notification shall be provided in writing
at the time an individual applies for vocational rehabilitation services,
and at the time the individualized plan for employment for the individual
is developed, and upon reduction, suspension, or cessation of vocational rehabilitation
services for the individual.]
(2)
The IHO shall issue notice of the date, time, and location
for the hearing.
(g)
Evidence and representation. An applicant or an eligible
individual, or, as appropriate, the applicant's representative or individual's
representative, will be provided with an opportunity to submit at the mediation
session or hearing evidence and information to support the position of the
applicant or eligible individual, and may be represented in the mediation
session or hearing by a person selected by the applicant or eligible individual.
(h)
Hearings.
(1)
Hearing officer. A due process hearing shall be conducted
by an impartial hearing officer who shall issue a decision based on the provisions
of the approved state plan, the Rehabilitation Act if 1973, as amended (including
regulations implementing the Act), and state regulations and policies that
are consistent with the Rehabilitation Act and its implementing regulations.
The impartial hearing officer shall provide the decision in writing to the
applicant or eligible individual, or, as appropriate, the applicant's representative
or individual's representative, and to the commission.
(2)
List. The commission will maintain a list of qualified
impartial hearing officers who are knowledgeable in laws (including regulations)
relating to the provision of vocational rehabilitation services under the
Rehabilitation Act of 1973, as amended, from which hearing officers will be
selected. For the purposes of maintaining such list, impartial hearing officers
shall be identified jointly by the Commission, and by members of the Rehabilitation
Council of Texas.
(3)
Selection. An impartial hearing officer shall be selected
to hear a particular case relating to a determination on a random basis.
(i)
Confidentiality. All personal information regarding applicants
or clients in the possession of the commission must be used only for purposes
directly connected with the administration of the Act. Information may not
be shared with advisory or other bodies which do not have official responsibility
for administration of the Act.
(j)
Testimony under oath or affirmation. In any hearing, the
IHO shall administer an oath or affirmation before permitting testimony from
any witness.
(k)
Class actions. Class actions are not permitted under these
rules.
(l)
Reasonable accommodation. The commission shall provide
reasonable accommodation to the client or other individuals with disabilities,
upon request, for purposes of the appeal process as required by the Americans
with Disabilities Act of 1990, 42 United States Code §12101 et seq. and
the Act, §504.
(m)
Stay of official acts or services. A request for an informal
or formal appeal does not of itself stay an official act of or the provision
of services by the commission unless the official act or services are stayed
by controlling law.
(n)
Limitations on number of witnesses. The IHO has the right
in any proceeding under these rules to limit the number of witnesses whose
testimony will be repetitious and to set time limits in order to exclude irrelevant,
immaterial, or unduly repetitious testimony, so long as all viewpoints are
given a reasonable opportunity to be heard.
(o)
Mileage and Witness fees.
(1)
An individual who is not an employee of TRC and who is
subpoenaed or otherwise compelled to attend any hearing or proceeding to give
testimony or to produce documents is entitled to receive:
(A)
mileage, in the same amount per mile as the mileage travel
allowance for state employees, for traveling to and returning from the place
of the hearing or the place where the deposition is taken, if the place is
more than 25 miles from the individual's place of residence; and
(B)
a fee of not less than $10 a day for each day or part of
a day the individual is required to be present or a fee equal to the per diem
and travel allowances of a state employee, if an overnight stay is required.
(2)
Mileage and fees to which a witness is entitled under this
rule shall be paid by the party at whose request the individual appears or
at whose request the deposition is taken.
(p)
Impact on provision of services. Unless the individual
with a disability so requests, or, in an appropriate case, the individual's
representative so requests, pending a decision by a mediator or impartial
hearing officer under subsection (h)(1) of this section or §104.6 of
this title (relating to Motion for Reconsideration), the commission will not
institute a suspension, reduction, or termination of services being provided
for the individual, including evaluation and assessment services and plan
development, unless such services have been obtained through misrepresentation,
fraud, collusion, or criminal conduct on the part of the individual, or the
individual's representative. In the case of a client who has completed a term
of training or similar services prior to the appeal, and the next term has
not yet begun (prior to the current appeal), it is understood that such training
or services are not "being provided."
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State, on June 21, 2001.
TRD-200103513
Sylvia F. Hardman
Deputy Commissioner for Legal Services
Texas Rehabilitation Commission
Earliest possible date of adoption: August 5, 2001
For further information, please call: (512) 424-4050
40 TAC §104.5
The Texas Rehabilitation Commission (TRC) proposes a change
to Title 40, Chapter 104, §104.5, concerning informal appeals, formal
appeals, and mediation by applicants/clients of determinations by agency personnel
that affect the provision of vocational rehabilitation services by TRC. The
change is being proposed to bring TRC's rules into conformance with regulations
issued by the US Department of Education at 34 CFR §361.57(d).
Charles E. Harrison, Jr., Deputy Commissioner for Financial Services, has
determined that for the first five-year period the section is in effect, there
will be no material fiscal implications for state or local government.
Mr. Harrison also has determined that for each year of the first five years
the section is in effect the public benefit anticipated as a result of enforcing
the section will be the agency's compliance with Chapter 111, Human Resources
Code. There will be no material effect on small businesses. There is no material
anticipated economic cost to persons who are required to comply with the section
as proposed.
Comments on the proposal may be submitted to Roger Darley, Assistant General
Counsel, Texas Rehabilitation Commission, 4900 North Lamar Boulevard, Suite
7300, Austin, Texas 78751.
The amendment is proposed under the Texas Human Resources Code,
Title 7, Chapter 111, §111.018 and §111.023, which provides the
Texas Rehabilitation Commission with the authority to promulgate rules consistent
with Title 7, Texas Human Resources Code.
No other statute, article, or code is affected by this proposal.
§104.5.Formal Appeal and Mediation.
(a)
The formal appeal process commences with the filing of
a Petition for Administrative Hearing with the Office for Administrative Hearings
and Subrogation.
(b)
Role of Office for Administrative Hearings and Subrogation.
Upon receipt of the Petition for Administrative Hearing, the Office for Administrative
Hearings and Subrogation shall:
(1)
acknowledge receipt of the petition for administrative
hearing (via certified mail, return receipt requested) and advise the appellant
of the availability of the Client Assistance Program, including the address
and telephone number;
(2)
date-stamp the Petition and record a docket control number
for the appeal;
(3)
select the impartial hearings officer (IHO), who is appointed
by the commissioner, on a random basis from a pool of qualified persons identified
jointly by TRC and the Rehabilitation Council of Texas in accordance with
the Rehabilitation Act and forward a copy of the Petition for Administrative
Hearing to the IHO;
(4)
forward a copy of the Petition for Administrative Hearing
to the Office of the General Counsel, Deputy Commissioner for Rehabilitation
Services and Commission Representative immediately upon receipt;
(5)
provide administrative support to the IHO:
(A)
serve as the custodian of records for all documents, motions,
and pleadings directed to the IHO;
(B)
coordinate and schedule all dates, meetings, hearings;
(C)
make all necessary arrangements for the formal appeal:
(i)
schedule and set up the hearing location;
(ii)
if required, retain the services of a certified shorthand
reporter to prepare a transcript of the proceedings;
(iii)
provide any requested reasonable accommodations;
(6)
compile and maintain the official record of the appeal;
(7)
accompany IHO to prehearing conference, administrative
hearing and provide necessary assistance during the proceedings;
(c)
Mediation.
(1)
An applicant or eligible individual and the State may elect
to resolve disputes involving TRC determinations that affect the provision
of vocational rehabilitation services through a mediation process whenever
an applicant or eligible individual or, as appropriate, the individual's representative
requests an impartial due process hearing under this section.
(2)
The following apply to mediation.
(A)
Participation in the mediation process is voluntary on
the part of the applicant or eligible individual, as appropriate, and on the
part of TRC;
(B)
Use of the mediation process will not be used to deny or
delay the applicant's or eligible individual's right to pursue resolution
of the dispute through an impartial hearing held within the time period specified
in section 104.9 of this chapter, or any other rights provided under this
chapter. At any point during the mediation process, either party or the mediator
may elect to terminate the mediation. In the event mediation is terminated,
either party may pursue resolution through an impartial hearing;
(C)
The mediation process will be conducted by a qualified
and impartial mediator who is not an employee of a public agency (other than
an administrative law judge, hearing examiner, employee of a State office
of mediators, or employee of an institution of higher education); is not a
member of the Rehabilitation Council of Texas; has not been involved previously
in the vocational rehabilitation of the applicant or eligible individual;
is knowledgeable of the vocational rehabilitation program and the applicable
Federal and State laws, regulations, and policies governing the provision
of vocational rehabilitation services; has been trained in effective mediation
techniques consistent with any State-approved or -recognized certification,
licensing, registration, or other requirements; and has no personal, professional,
or financial interest that would be in conflict with the objectivity of the
individual during the mediation proceedings. An individual serving as a mediator
is not considered to be an employee of the designated State agency or designated
State unit for the purposes of this definition solely because the individual
is paid by the designated State agency or designated State unit to serve as
a mediator. The mediator will be selected from a list of qualified and impartial
mediators maintained by the TRC on a random basis; or by agreement between
TRC and the applicant or eligible individual or, as appropriate, the individual's
representative; or in accordance with a procedure established by TRC for assigning
mediators which ensures the neutrality of the mediator assigned.
(D)
Mediation sessions will be scheduled and conducted in a
timely manner and will be held in a location and manner that is convenient
to the parties to the dispute.
(3)
Discussions that occur during the mediation process will
be kept confidential and may not be used as evidence in any subsequent due
process hearings or civil proceedings, and the parties to the mediation process
may be required to sign a confidentiality pledge prior to the commencement
of the process.
(4)
An agreement reached by the parties to the dispute in the
mediation process will be described in a written mediation agreement that
is developed by the parties with the assistance of the qualified and impartial
mediator and signed by both parties. Copies of the agreement will be sent
to both parties.
(5)
The costs of the mediation process will be paid by TRC.
However, TRC will not pay for any costs related to the representation of an
applicant or eligible individual by counsel or other advocate selected by
the applicant or eligible individual.
[(c)
Mediation. Applicants and eligible individuals
who have requested appeals may agree with the Commission to attempt resolution
of disputes involving determinations described in §104.3(a) of this title
(relating to General Provisions) through mediation. The mediation process
must be voluntary on the part of the parties. It may not be used to deny or
delay the right of an individual to a hearing under §104.3(h) of this
title, or to deny any other right afforded by law, and it will be conducted
by a qualified and impartial mediator who is trained in effective mediation
techniques. The Commission will bear the cost of the mediation process. Clients/Applicants
are responsible for the cost of any attorney or other person representing
him/her.]
[(1)
List of mediators. The Commission will maintain a list
of individuals who are qualified mediators and knowledgeable in laws (including
regulations) relating to the provision of vocational rehabilitation services
under the Rehabilitation Act of 1973, as amended, from which mediators will
be selected.]
[(2)
Scheduling. Each session in the mediation process shall
be scheduled in a timely manner and shall be held in a location that is convenient
to the parties to the dispute.]
[(3)
Agreement. An agreement reached by the parties to the
dispute in the mediation process shall be set forth in a written mediation
agreement and signed by both parties or their representatives, and the mediator.]
[(4)
Confidentiality. Discussions that occur during the mediation
process shall be confidential and may not be used as evidence in any subsequent
due process hearing or civil proceeding. The parties to the mediation process
may be required to sign a confidentiality pledge prior to the commencement
of such process.]
(d)
Impartial Hearing Officer.
(1)
Qualifications. The IHO:
(A)
cannot be an employee of a public agency;
(B)
cannot be a member of the Rehabilitation Council of Texas
(the Act, §105, as amended in 1992); and
(C)
must have knowledge of the delivery of vocational rehabilitation
services, the state plan under the Act, §101, the federal regulations,
and commission rules governing the provision of such services and training
with respect to the performance of official duties;
(D)
must not have been involved in previous decisions regarding
the vocational rehabilitation of the applicant or client;
(E)
must have no personal or financial interest that would
conflict with his/her objectivity;
(F)
must have successfully completed impartial hearings training
presented by the commission; and
(G)
must not be a client of TRC.
(2)
Powers and Duties.
(A)
The IHO shall have the authority and duty to:
(i)
conduct a full, fair, and impartial hearing;
(ii)
take action to avoid unnecessary delay in the disposition
of the proceeding;
(iii)
maintain order; and
(iv)
permit deviations from the rules and procedures prescribed
in subsections (f)-(j) of this section, except subsection (j)(4)(F), in the
interest of justice or to expedite the proceedings. If prior to adjournment
of a hearing either party disagrees with a ruling or otherwise so requests,
the IHO shall include in the written record a justification, and an explanation
of how the decision is in the interest of justice and/or reasonably necessary
to expedite the proceedings. Actions taken under this subsection shall be
limited to procedural matters, and no party shall lose any substantive rights.
(B)
The IHO shall have the power to regulate the course of
the hearing and the conduct of the parties and authorized representative(s),
including the power to:
(i)
administer oaths;
(ii)
take testimony;
(iii)
rule on questions of evidence;
(iv)
rule on discovery issues;
(v)
issue orders relating to hearing and prehearing matters,
including orders granting permission to subpoena witnesses and imposing sanctions
regarding discovery;
(vi)
limit irrelevant, immaterial, and unduly repetitious testimony
and reasonably limit the time for presentations;
(vii)
admit or deny party status;
(viii)
grant continuance(s);
(ix)
require parties to submit legal memoranda, proposed findings
of fact, and conclusions of law;
(x)
make findings of fact and conclusions of law; and
(xi)
issue decisions.
(C)
An IHO shall disqualify him/herself if the IHO has directly
or indirectly had prior involvement with any issues that are the basis for
the hearing, or if the IHO has a personal relationship or familial relationship
with any party or witness.
(D)
Substitution of impartial hearing officers.
(i)
If for any reason an IHO is unable to continue presiding
over a pending hearing or issue a decision after the conclusion of the hearing,
another IHO may be designated as a substitute in accordance with applicable
law and these rules.
(ii)
The substitute IHO may use the existing record and need
not repeat previous proceedings, but may conduct further proceedings as necessary
and proper to conclude the hearing and render a decision.
(e)
Ex Parte Communications. Unless required for the disposition
of ex parte matters authorized by law, the IHO may not communicate, directly
or indirectly, in connection with any issue of fact or law with the commissioner
or any party or a party's representative, except upon notice to all parties.
(f)
Prehearing Procedures.
(1)
Prehearing Conference(s).
(A)
When appropriate, the IHO may hold a prehearing conference
to resolve matters preliminary to the hearing.
(B)
A prehearing conference may be convened to address preliminary
matters including the following listed in clauses (i)-(xv) of this subparagraph:
(i)
issuance of subpoenas;
(ii)
factual and legal issues;
(iii)
stipulations;
(iv)
clarification of the issues at the discretion of the IHO;
(v)
requests for official notice;
(vi)
identification and exchange of documentary evidence;
(vii)
admissibility of evidence;
(viii)
identification and qualification of witnesses;
(ix)
motions;
(x)
discovery disputes;
(xi)
order of presentation;
(xii)
scheduling;
(xiii)
settlement conferences;
(xiv)
mediation; and
(xv)
such other matters as will promote the orderly and prompt
resolution of the issues and conduct of the hearing.
(C)
Among other matters, as stated in subsection (b) of this
section, an IHO may order:
(i)
that the parties jointly discuss the prospects of settlement
or stipulations or other dispute resolution methods approved herein and be
prepared to report thereon at the prehearing conference;
(ii)
that the parties file and be prepared to argue preliminary
motions at the prehearing conference;
(iii)
that the parties be prepared to specify the controlling
factual and legal issues in the case at the prehearing conference; and
(iv)
that the parties make a concise statement of undisputed
facts and issues at the prehearing conference.
(D)
All or part of the prehearing conference may be recorded
or transcribed.
(E)
The IHO may, after acquiring jurisdiction, issue an order
requiring a prehearing "statement of the case." The parties shall file a statement
specifying the party's present position on any or all of the following listed
in clauses (i)-(v) of this subparagraph as required by the IHO. Parties shall
supplement this statement on a timely basis. The statement may include:
(i)
the disputed issues or matters to be resolved;
(ii)
a brief statement of the facts or arguments supporting
the party's position in each disputed issue or matter;
(iii)
a list of facts or exhibits to which a party will stipulate;
and
(iv)
a list of the witnesses which each party intends to call
at the hearing, including a designation of each as either a fact or expert
witness, and a brief statement summarizing the testimony and/or opinions (experts)
of each witness.
(2)
Prehearing Orders.
(A)
The IHO may issue a prehearing order reciting the actions
taken or to be taken with regard to any matter addressed at the prehearing
conference.
(B)
The prehearing order shall be a part of the hearing record.
(C)
If a prehearing conference is not held, the IHO may issue
a prehearing order to regulate the conduct of the proceedings of the formal
hearing.
(3)
Stipulations.
(A)
The parties, by stipulation, may agree to any substantive
or procedural matter.
(B)
A stipulation shall be filed in writing or entered on the
record at the prehearing (or hearing).
(C)
The IHO may require additional development of stipulated
matters.
(g)
Pleadings.
(1)
In a formal appeal all pleadings, including the Petition
for Administrative Hearing, shall contain:
(A)
the name of the party making the pleading;
(B)
the names of all other known parties;
(C)
a concise statement of the facts alleged and relied upon;
(D)
a statement of the type of relief, action, or order desired;
(E)
any other matter required by law;
(F)
a certificate of service, as required by these rules; and
(G)
the signature of the party making the pleading or the party's
authorized representative.
(2)
Any pleading filed pursuant to a formal appeal may be amended
up to 14 days prior to the hearing. Amendments filed after that time will
be accepted at the discretion of the IHO.
(3)
Any pleading may adopt and incorporate, by specific reference
thereto, any part of any document or entry in the official files and records
of the Commission. All pleadings relating to any matter pending before the
Commission shall be filed with the IHO through the Office for Administrative
Hearings and Subrogation.
(4)
All pleadings shall be typed or printed on 8 1/2 by 11
inch paper with a one-inch margin. Reproductions are acceptable, provided
all copies are clear and permanently legible.
(5)
Pleadings shall contain the name, address, and telephone
number of the party filing the document or the name, telephone number, and
business address of the authorized representative.
(6)
The party or the party's designated representative filing
the pleading shall include a signed certification that a true and correct
copy of the pleading has been served on every other party.
(h)
Dismissal. After giving notice and hearing, the IHO may
upon the motion of any party or the IHO's own motion, dismiss the appeal upon
showing of any one of the following:
(1)
failure to prosecute;
(2)
unnecessary duplication of proceedings or res judicata;
(3)
withdrawal;
(4)
moot questions;
(5)
lack of jurisdiction;
(6)
failure to raise a material issue in the pleading;
(7)
failure of a party to appear at a scheduled hearing.
(i)
Motions.
(1)
Unless otherwise provided by these rules, the following
shall apply.
(A)
A party may move for appropriate relief before or during
a hearing.
(B)
A party shall submit all motions in writing or orally at
a hearing.
(C)
Written motions shall:
(i)
be filed no later than 15 days before the date of the hearing,
except where good cause is stated in the motion, the IHO may permit a written
motion subsequent to that time;
(ii)
state concisely the question to be determined;
(iii)
be accompanied by any necessary supporting documentation;
and
(iv)
be served on each party.
(D)
An answer to a written motion shall be filed on the earlier
of:
(i)
seven days after receipt of the motion; or
(ii)
on the date of the hearing.
(E)
On written notice to all parties or with telephone consent
of all parties, the IHO may schedule a conference to consider a written motion.
(F)
The IHO may reserve ruling on a motion until after the
hearing.
(G)
The IHO may issue a written decision or state the decision
on the record.
(H)
If a ruling on a motion is reserved, the ruling shall be
in writing and may be included in the IHO's decision.
(I)
The filing or pendency of a motion does not alter or extend
any time limit otherwise established by these rules.
(2)
Continuance(s) may be granted by the IHO in accordance
with applicable law. Motions for continuances shall be in writing or stated
in the record and shall set forth the specific grounds upon which the party
seeks the continuance.
(3)
Unless made during a prehearing or hearing, a party seeking
a continuance, cancellation of a scheduled proceeding, or extension of an
established deadline must file such motion no later than 10 days before the
date or deadline in question. A motion filed less than 10 days before the
date or deadline in question must contain a certification that the movant
contacted the other party(ies) and whether or not it is opposed by any party(ies).
Further, if a continuance to a certain date is sought, the motion must include
a proposed date or dates and must indicate whether the party(ies) contacted
agree on the proposed new date(s).
(j)
Hearing.
(1)
The IHO shall set the date and time for the hearing. The
location shall be the Commission's regional or area office nearest the Appellant's
residence or as agreed to by the parties.
(2)
Order of procedure at the hearing.
(A)
The appellant may state briefly the nature of the claim
or defense, what the appellant expects to prove, and the relief sought. Immediately
thereafter, the respondent may make a similar statement, and any other parties
will be afforded similar rights as determined by the IHO. Each party is allowed
10 minutes for such statement.
(B)
Evidence shall then be introduced by the appellant. The
respondent and any other parties shall have the opportunity to cross-examine
each of the appellant's witnesses.
(C)
Cross-examination is not limited solely to matters raised
on direct examination. Parties are entitled to redirect and recross-examination.
(D)
Unless the statement has already been made, the respondent
may briefly state the nature of the claim or defense, what the respondent
expects to prove, and the relief sought.
(E)
Evidence, if any, shall be introduced by the respondent.
The appellant and any other parties shall have the opportunity to cross-examine
each of the respondent's witnesses.
(F)
Any other parties may make statements and introduce evidence.
The appellant and respondent shall have opportunity to cross-examine the other
parties' witnesses.
(G)
The parties may present rebuttal evidence.
(H)
The parties may be allowed closing statements at the discretion
of the IHO.
(I)
The IHO may permit deviations from this order of procedure
in the interest of justice or to expedite the proceedings.
(J)
Parties shall provide four copies of each exhibit offered.
(3)
No evidence shall be admitted which is irrelevant, immaterial,
or unduly repetitious.
(4)
Documentary evidence and official notice.
(A)
Documentary evidence may be received in the form of copies
or excerpts if the original is not readily available. On request, parties
shall be given an opportunity to compare the original and the copy or excerpts.
(B)
When numerous similar documents which are otherwise admissible
are offered into evidence, the IHO may limit the documents received to those
which are typical and representative. The IHO may also require that an abstract
of relevant data from the documents be presented in the form of an exhibit,
provided that all parties of record or their representatives be given the
right to examine the documents from which such abstracts were made.
(C)
The following laws, rules, regulations, and policies are
officially noticed:
(i)
the Rehabilitation Act of 1973, as amended, 29 United States
Code, §701 et seq.;
(ii)
Department of Education regulations, 34 Code of Federal
Regulations, Part 361;
(iii)
Texas Human Resources Code, Title 7, §111 et seq.;
(iv)
TRC State Plan for Vocational Rehabilitation Services;
(v)
TRC Rehabilitation Services Manual; and
(vi)
TRC Administrative Policies and Procedures Manual.
(D)
Exhibits.
(i)
Exhibits shall not exceed 8 1/2 by 11 inches (unless they
are folded to that size). Maps, drawings, and other exhibits which are not
the required size shall be rolled or folded so as not to unduly encumber the
record. Exhibits not conforming to this rule may be excluded.
(ii)
Exhibits shall be limited to facts material and relevant
to the issues involved in a particular proceeding.
(iii)
The original of each exhibit offered shall be tendered
to the court reporter for identification.
(iv)
In the event an exhibit has been identified, objected
to, and excluded, the IHO shall determine whether or not the party offering
the exhibit withdraws the offer, and, if so, permit the return of the exhibit.
If the excluded exhibit is not withdrawn it shall be given an exhibit number
for identification, shall be endorsed by the IHO with a ruling, and shall
be included in the record for the only purpose of preserving the exception.
(E)
Offer of proof. When testimony on direct examination is
excluded by ruling of the IHO, the party offering such evidence shall be permitted
to make an offer of proof by dictating or submitting in writing the substance
of the proposed testimony prior to the conclusion of the hearing. The IHO
may ask such questions of the witness as deemed necessary to satisfy that
the witness would testify as represented in the offer of proof.
(5)
Failure to attend hearing and default. If, after receiving
notice of a hearing, a party fails to attend a hearing, the IHO may proceed
in that party's absence and, where appropriate, may issue a decision against
the defaulting party.
(k)
Impartial Hearing Officer Decision.
(1)
Within 30 days of the hearing completion date, the IHO
shall issue a decision based on the provisions of the approved State plan,
the applicable regulations, and the Act which shall contain separately stated:
(A)
findings of fact;
(B)
conclusions of law; and
(C)
decision.
(2)
The Office for Administrative Hearings and Subrogation
shall submit the IHO opinion to the Commissioner with a copy to each party.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State, on June 21, 2001.
TRD-200103514
Sylvia F. Hardman
Deputy Commissioner for Legal Services
Texas Rehabilitation Commission
Earliest possible date of adoption: August 5, 2001
For further information, please call: (512) 424-4050
40 TAC §104.9
The Texas Rehabilitation Commission (TRC) proposes a new
section for Title 40, Chapter 104, §104.9, concerning informal appeals,
formal appeals, and mediation by applicants/clients of determinations by agency
personnel that affect the provision of vocational rehabilitation services
by TRC. The change is being proposed to bring TRC's rules into conformance
with regulations issued by the US Department of Education at 34 CFR §361.57(e)(1).
Charles E. Harrison, Jr., Deputy Commissioner for Financial Services, has
determined that for the first five-year period the section is in effect, there
will be no material fiscal implications for state or local government.
Mr. Harrison also has determined that for each year of the first five years
the section is in effect the public benefit anticipated as a result of enforcing
the section will be the agency's compliance with Chapter 111, Human Resources
Code. There will be no material effect on small businesses. There is no material
anticipated economic cost to persons who are required to comply with the section
as proposed.
Comments on the proposal may be submitted to Roger Darley, Assistant General
Counsel, Texas Rehabilitation Commission, 4900 North Lamar Boulevard, Suite
7300, Austin, Texas 78751.
The new section is proposed under the Texas Human Resources Code,
Title 7, Chapter 111, §111.018 and §111.023, which provides the
Texas Rehabilitation Commission with the authority to promulgate rules consistent
with Title 7, Texas Human Resources Code.
No other statute, article, or code is affected by this proposal.
§104.9.Time for Hearing.
A hearing conducted by an impartial hearing officer, selected in accordance
with section 104.5 of this chapter, will be held within 60 days of an applicant's
or eligible individual's request for review of a determination made by personnel
of TRC that affects the provision of vocational rehabilitation services to
the individual, unless informal resolution or a mediation agreement is achieved
prior to the 60th day or the parties agree to a specific extension of time.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State, on June 21, 2001.
TRD-200103515
Sylvia F. Hardman
Deputy Commissioner for Legal Services
Texas Rehabilitation Commission
Earliest possible date of adoption: August 5, 2001
For further information, please call: (512) 424-4050
Chapter 700.
CHILD PROTECTIVE SERVICES
Subchapter C. ELIGIBILITY FOR CHILD PROTECTIVE SERVICES
40 TAC §700.316
The Texas Department of Protective and Regulatory Services
(TDPRS) proposes an amendment to §700.316, concerning eligibility requirements
for Title IV-E, MAO, and state-paid foster-care assistance, in its Child Protective
Services chapter. The purpose of the amendment is to remove the specific procedures
that staff must follow when a lump-sum payment affects a child's foster care
eligibility, and replace them with a reference to the statutes and regulations
that control the management of the payments.
Mary Fields, Budget and Federal Funds Director, has determined that for
the first five-year period the proposed section will be in effect there will
be no fiscal implications for state or local government as a result of enforcing
or administering the section.
Ms. Fields also has determined that for each year of the first five years
the section is in effect the public benefit anticipated as a result of enforcing
the section will be that TDPRS will be able to receive and manage lump-sum
payments in an efficient and effective manner. There will be no effect on
large, small, or micro-businesses because the amendment does not impose any
new requirements on these types of businesses. There is no anticipated economic
cost to persons who are required to comply with the proposed section.
Questions about the content of the proposal may be directed to Javier Zuniga
at (512) 438-5029 in TDPRS's Child Protective Services Division. Written comments
on the proposal may be submitted to Texas Register Liaison, Legal Services-176,
Texas Department of Protective and Regulatory Services E-611, P.O. Box 149030,
Austin, Texas 78714-9030, within 30 days of publication in the
Texas Register
.
Under §2007.003(b) of the Texas Government Code, the department has
determined that Chapter 2007 of the Government Code does not apply to this
rule. Accordingly, the department is not required to complete a takings impact
assessment regarding this rule.
The amendment is proposed under the Human Resources Code (HRC), §40.029,
which authorizes the Board to adopt rules to ensure the Department's compliance
with state and federal law and to facilitate implementation of departmental
programs; and the Texas Family Code §264.101, which authorizes the Department
to accept and spend funds available from any source to pay for foster care,
including medical care, for a child in the Department's care.
The amendment implements the Texas Family Code, §264.101.
§700.316.Eligibility Requirements for Title IV-E, MAO, and State-Paid Foster-Care Assistance.
The child must meet all of the following criteria to be eligible for
Title IV-E, Medical Assistance Only (MAO), or state-paid foster care assistance.
(1)-(6)
(No change.)
(7)
Lump-sum Income.
Non-recurring lump-sum payments must
be handled in accordance with all applicable federal laws, federal regulations,
and state laws. Lump sums placed in a trust inaccessible to the child will
not affect a child's foster care eligibility.
[
(8)
(No change.)
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State, on June 22, 2001.
TRD-200103565
C. Ed Davis
Deputy Director, Legal Services
Texas Department of Protective and Regulatory Services
Proposed date of adoption: August 24, 2001
For further information, please call: (512) 438-3437
The Texas Department of Protective and Regulatory Services (PRS) proposes
the repeal of §700.1802 and §700.1807, concerning cost-finding analysis
and increase in residential child care reimbursement rates for fiscal years
2000-2001; and proposes new §700.1802, concerning cost-finding analysis,
in its Child Protective Services chapter. The purpose of the repeals and new
section is to revise the foster care rate-setting methodology to provide a
more equitable distribution of funding for the level of services provided
to PRS children in conservatorship. New §700.1802 also gives PRS the
ability to provide the rate increase intended by the 77th legislature for
the 2002-2003 biennium. Section 700.1807 is repealed because it relates to
the rate increase for the 2000-2001 biennium.
Mary Fields, Budget and Federal Funds Director, has determined that for
the first five-year period the sections will be in effect there will be fiscal
implications for state government as a result of enforcing or administering
the sections. The estimated cost to the state as result of the change will
be $3,328,139 for fiscal year 2002 and $6,397,160 for fiscal year 2003. The
additional costs for fiscal years 2004, 2005, and 2006 cannot be determined
at this time because PRS does not know what the rates will be beyond fiscal
year 2003. The estimated increase in revenue to the state because of this
change is an additional $11,762,654 for fiscal year 2002 and $12,611,034 for
fiscal year 2003. The increase in revenue for fiscal years 2004, 2005, and
2006 also cannot be determined at this time. There will be no fiscal implications
for local government.
Ms. Fields also has determined that for each year of the first five years
the sections are in effect the public benefit anticipated as a result of enforcing
the sections will be that 24-hour residential care providers will receive
an equitable rate for the level of services provided to PRS children in conservatorship.
Proper compensation helps to ensure that children receive appropriate levels
of service. There is no anticipated adverse impact on large, small, or micro-
businesses as a result of the proposed rule changes. The methodology seeks
to reimburse all foster care providers for a proportionate share of the established
cost basis for each rate based upon the available foster care appropriations.
The methodology could result in future reductions in individual rates if the
reported cost basis for those rates does not substantiate the rate being paid.
To avoid any potential impact on service delivery during the fiscal year 2002-2003
biennium, no rate reductions will be implemented during this biennium. There
is no anticipated economic cost to persons who are required to comply with
the proposed sections.
In considering the proposed rate methodology, the Board recognizes that
there are several issues of serious concern that have not been adequately
addressed through the proposed new rate methodology. In particular, the Board
is concerned that the methodology, when implemented, will not raise the daily
foster-care rate for Levels of Care (LOC) 5 & 6 enough to meet market
demands for providers who serve this population of children. Although only
approximately five percent of PRS foster children are in LOC-5, and only one
percent are in LOC-6, it has become increasingly difficult to find placements
for these children. The total number of children in LOC 5-6 has increased
significantly in recent years, while the total number of providers serving
this population has significantly decreased. Providers who do serve this population
often receive substantially higher reimbursement rates for private-pay placements
and for out-of-state foster children who are placed in Texas. A brief survey
of other states' child welfare agencies indicates that many pay substantially
higher rates to providers serving this population of children.
Options for addressing this concern may include revisions to the cost-reporting
methodology to ensure that it more fully captures all costs of care for children
in LOC 5-6; identifying barriers that may discourage providers from fully
reporting their true costs; and/or changing the rate- setting methodology
to address market-driven supply and demand. Any such changes that result in
an increase in rates for LOC 5 & 6 will necessarily result in a decrease
in other LOC rates. Options for adjustments in other LOC rates may include
a reduction in the new LOC-1 rate for children ages 12 and over; use of a
blend of the USDA lower and median income rates as the benchmark for determining
the costs of care at LOC-1; and/or reductions in rates for CPA foster homes
and residential providers serving children at LOC 2-4. It should be noted
that, for the upcoming biennium, the Legislature mandated that no LOC rate
be reduced below its Fiscal year 2001 level. Accordingly, the Board is not
at liberty to lower rates for children in LOC 2-4 in PRS foster homes or to
lower the CPA/residential LOC-4 rate, even though the proposed methodology
indicates that these categories will be paid a disproportionately higher percent
of their costs than the other LOC categories.
In addition to the concern regarding LOC 5-6 rates, the new methodology
is projected to result in a significant shortfall in funding for adoption
assistance monthly payments due to the linkage between LOC 1 rates and the
maximum monthly rate for adoption assistance. The projected shortfall in the
coming biennium of roughly 9 million dollars is summarized in the fiscal impact
portion of this preamble, above, and is detailed in the Memorandum to the
Board concerning these proposed rules, which is contained in Board Agenda
Item 10.b for the Board's June 22, 2001 meeting. Options for addressing this
shortfall include a change to the proposed foster-care rate setting methodology
that result in a reduction in the LOC-1 rate.
The Board strongly encourages providers and other interested parties to
carefully review the proposed methodology and to use the public comment period
to suggest alternatives that address the concerns discussed above.
Questions about the content of the proposal may be directed to Mary Fields
at (512) 438- 5747 in PRS's Budget and Federal Funds Division. Written comments
on the proposal may be submitted to Texas Register Liaison, Legal Services-175,
Texas Department of Protective and Regulatory Services E-611, P.O. Box 149030,
Austin, Texas 78714-9030, within 30 days of publication in the
Texas Register
.
Under §2007.003(b) of the Texas Government Code, the department has
determined that Chapter 2007 of the Government Code does not apply to these
rules. Accordingly, the department is not required to complete a takings impact
assessment regarding these rules.
Subchapter R. COST-FINDING METHODOLOGY FOR 24-HOUR CHILD-CARE FACILITIES
40 TAC §700.1802, §70.1807
(Editor's note: The text of the following sections proposed
for repeal will not be published. The sections may be examined in the offices
of the Texas Department of Protective and Regulatory Services or in the Texas
Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street,
Austin.)
The repeals are proposed under Human Resources Code (HRC),
Chapter 40, which describes the services authorized to be provided by the
Texas Department of Protective and Regulatory Services (PRS), specifically §40.029
granting rulemaking authority to PRS, and §40.052 regarding delivery
of services; and under Texas Family Code, §264.101, which authorizes
the Board of PRS to adopt rules relating to the payment of foster care.
The repeals implement the HRC, Chapter 40, which authorizes the department
to enter into agreements with federal, state, or other public or private agencies
or individuals to accomplish the purposes of the programs authorized by the
HRC and which authorizes the department to enter into contracts as necessary
to perform any of its powers or duties.
The repeals also satisfy the requirement of the Department's Rider 21,
Article II, of the General Appropriations Act for the 2000-2001 biennium;
and the General Appropriations Act for the 2002-2003 biennium.
§700.1802.Cost-finding Analysis.
§700.1807.Increase in Residential Child Care Reimbursement Rates for Fiscal Years 2000-2001.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State, on June 22, 2001.
TRD-200103574
C. Ed Davis
Deputy Director, Legal Services
Texas Department of Protective and Regulatory Services
Earliest possible date of adoption: August 24, 2001
For further information, please call: (512) 438-3437
40 TAC §700.1802
The new section is proposed under Human Resources Code (HRC),
Chapter 40, which describes the services authorized to be provided by the
Texas Department of Protective and Regulatory Services (PRS), specifically §40.029
granting rulemaking authority to PRS, and §40.052 regarding delivery
of services; and under Texas Family Code, §264.101, which authorizes
the Board of PRS to adopt rules relating to the payment of foster care.
The new section implements the HRC, Chapter 40, which authorizes the department
to enter into agreements with federal, state, or other public or private agencies
or individuals to accomplish the purposes of the programs authorized by the
HRC and which authorizes the department to enter into contracts as necessary
to perform any of its powers or duties.
The new section also satisfies the requirement of the Department's Rider
21, Article II, of the General Appropriations Act for the 2000-2001 biennium;
and the General Appropriations Act for the 2002-2003 biennium.
§700.1802.Cost-Finding Analysis.
(a)
The Board of the Texas Department of Protective and Regulatory
Services (PRS) reviews payment rates for providers of 24-hour residential
child care services every other year in an open meeting, after considering
financial and statistical information, PRS rate recommendations developed
according to the provisions of this subchapter, legislative direction, staff
recommendations, agency service demands, public testimony, and the availability
of appropriated revenue. Before the open meeting in which rates are presented
for adoption, PRS sends rate packets containing the proposed rates and average
inflation factor amounts to provider association groups. PRS also sends rate
packets to any other interested party, by written request. Providers who wish
to comment on the proposed rates may attend the open meeting and give public
testimony. Notice of the open meeting is published on the Secretary of State's
web site at http://www.sos.state.tx.us/open. If the Board adopts the proposed
rates, PRS notifies all foster care providers of the adopted rates by letter.
(b)
PRS develops rate recommendations for Board consideration
for foster homes serving Levels of Care 1 through 4 children as follows:
(1)
For all Level of Care 1 rates, PRS analyzes the most recent
statistical data available on expenditures for a child published by the United
States Department of Agriculture (USDA) from middle income, dual parent households
for the "Urban South." USDA data includes costs for age groupings from 0 to
17 years of age. An age differential is included with one rate for children
ages 0-11 years, and another rate for children 12 years and older. Foster
homes providing services to Level of Care 1 children receive the rate that
corresponds to the age of the child in care.
(A)
PRS excludes health care costs, as specified in the USDA
data, from its calculations since Medicaid covers these costs. USDA specified
child-care and education costs are also excluded since these services are
available in other PRS day-care programs.
(B)
PRS includes the following cost categories for both age
groups as specified in the USDA data: housing, food, transportation, clothing,
and miscellaneous.
(C)
The total cost per day is projected using the Implicit
Price Deflator-Personal Consumption Expenditures (IPD-PCE) Index from the
period covered in the USDA statistics to September 1 of the second year of
the biennium, which is the middle of the biennium that the rate period covers.
Information on inflation factors is specified in subsection (h) of this section.
(2)
For Levels of Care 2 through 4 rates, PRS analyzes the
information submitted in audited foster home cost surveys and related documentation
in the following ways:
(A)
A statistically valid sample of specialized (therapeutic,
habilitative, and primary medical) foster homes complete a cost survey covering
one month of service if they meet the following criteria:
(i)
the foster home currently has a PRS foster child(ren) residing
in the home; and
(ii)
the number of children in the home, including the children
of the foster parents, is 12 or fewer.
(B)
For rates covering the fiscal year 2002-2003 biennium,
child-placing agency homes are the only foster homes that complete a cost
survey because the children they serve are currently assigned levels of care
verified by an independent contractor. By September 1, 2001, children served
in PRS specialized foster homes will also be assigned levels of care verified
by an independent contractor. All future sample populations completing a one-month
foster home cost survey will include both child-placing agency and PRS specialized
foster homes. As referenced in subsection (j) of this section, during the
2004-2005 biennium, when the rate methodology is fully implemented, PRS specialized
foster homes and child-placing agency foster homes will be required to receive
at a minimum the same foster home rate as derived by this subsection.
(C)
Cost categories included in the one-month foster home cost
survey include:
(i)
shared costs, which are costs incurred by the entire family
unit living in the home, such as mortgage or rent expense and utilities;
(ii)
direct foster care costs, which are costs incurred for
PRS foster children only, such as clothing and personal care items. These
costs are tracked and reported for the month according to the level of care
of the child; and
(iii)
administrative costs that directly provide for PRS foster
children, such as child-care books, and dues and fees for associations primarily
devoted to child care.
(D)
A cost per day is calculated for each cost category and
these costs are combined for a total cost per day for each level of care served.
(E)
A separate sample population is established for each type
of specialized foster home (therapeutic, habilitative, and primary medical).
Each level of care maintenance rate is established by the sample population's
central tendency, which is defined as the mean, or average, of the population
after applying two standard deviations above and below the mean of the total
population.
(F)
The rates calculated for each type of specialized foster
home are averaged to derive one foster care maintenance rate for each of the
Levels of Care 2 through 4.
(G)
The total cost per day is projected using the IPD-PCE Index
from the period covered in the cost report to September 1 of the second year
of the biennium, which is the middle of the biennium that the rate period
covers. Information on inflation factors is specified in subsection (h) of
this section.
(c)
PRS develops rate recommendations for Board consideration
for child-placing agencies serving Levels of Care 1 through 4 children as
follows:
(1)
The rate-setting model defined in subsection (g) of this
section is applied to child-placing agencies' cost reports to calculate a
daily rate.
(2)
At a minimum, child-placing agencies are required to pass
through the applicable foster home rate derived from subsection (b) of this
section to their foster homes. The remaining portion of the rate is provided
for costs associated with case management, treatment coordination, administration,
and overhead.
(3)
For rate-setting purposes, the following facility types
are included as child-placing agencies and will receive the child-placing
agency rate:
(A)
child-placing agency;
(B)
independent foster family/group home;
(C)
independent therapeutic foster family/group home;
(D)
independent habilitative foster family/group home;
(E)
independent primary medical needs foster family/group home;
and
(F)
maternity home.
(d)
PRS develops rate recommendations for Board consideration
for residential care facilities serving Levels of Care 1 through 6 as follows:
(1)
For Levels of Care 1 and 2, PRS applies the same rate paid
to child-placing agencies as recommended in subsection (c) of this section.
(2)
For Levels of Care 3 through 6, the rate-setting model
defined in subsection (g) of this section is applied to residential care facilities'
cost reports to calculate a daily rate.
(3)
For rate-setting purposes, the following facility types
are included as residential care facilities and will receive the residential
care facility rate:
(A)
residential treatment center;
(B)
therapeutic camp;
(C)
institution for mentally retarded;
(D)
basic care facility; and
(E)
halfway house.
(e)
PRS develops rate recommendations for Board consideration
for emergency shelters as follows:
(1)
PRS analyzes emergency shelter cost report information
included within the rate-setting population defined in subsection (f) of this
section. Emergency shelter costs are not allocated across levels of care since,
for rate-setting purposes, all children in emergency shelters are considered
to be at the same level of care.
(2)
For each cost report in the rate-setting population, the
total costs are divided by the total number of days of care to calculate a
daily rate.
(3)
The total cost per day is projected using the IPD-PCE Index
from the period covered in the cost report to September 1 of the second year
of the biennium, which is the middle of the biennium that the rate period
covers. Information on inflation factors is specified in subsection (h) of
this section.
(4)
The emergency shelter rate is established by the population's
central point or central tendency. The measure of central tendency is defined
as the mean, or average, of the population after applying two standard deviations
above and below the mean of the total population.
(f)
Level of care rates for contracted providers including
child-placing agencies, residential care facilities, and emergency shelters
are dependent upon provider cost report information. The following criteria
applies to this cost report information:
(1)
PRS excludes the expenses specified in §700.1805 and §700.1806
of this title (relating to Unallowable Costs and Costs Not Included in Recommended
Payment Rates). Exclusions and adjustments are made during audit desk reviews
and on-site audits.
(2)
PRS includes therapy costs in its recommended payment rates
for emergency shelters and for Levels of Care 3 through 6, and these costs
will be considered as allowable costs for inclusion on the provider's annual
cost report, only if one of the following conditions applies. The provider
must access Medicaid for therapy for children in their care unless:
(A)
the child is not eligible for Medicaid or is transitioning
from Medicaid Managed Care to fee- for-service Medicaid;
(B)
the necessary therapy is not a service allowable under
Medicaid;
(C)
service limits have been exhausted and the provider has
been denied an extension;
(D)
there are no Medicaid providers available within 45 miles
that meet the needs identified in the service plan to provide the therapy;
or
(E)
it is essential and in the child's best interest for a
non-Medicaid provider to provide therapy to the child and arrange for a smooth
coordination of services for a transition period not to exceed 90 days or
14 sessions, whichever is less. Any exception beyond the 90 days or 14 sessions
must be approved by PRS before provision of services.
(3)
PRS may exclude from the database any cost report that
is not completed according to the published methodology and the specific instructions
for completion of the cost report. Reasons for exclusion of a cost report
from the database include, but are not limited to:
(A)
receiving the cost report too late to be included in the
database;
(B)
low occupancy;
(C)
auditor recommended exclusions;
(D)
days of service errors;
(E)
providers that do not participate in the level of care
system;
(F)
providers with no public placements;
(G)
not reporting costs for a full year;
(H)
using cost estimates instead of actual costs;
(I)
not using the accrual method of accounting for reporting
information on the cost report;
(J)
not reconciling between the cost report and the provider's
general ledger; and
(K)
not maintaining records that support the data reported
on the cost report.
(4)
PRS requires all contracted providers to complete the first
portion of the cost report including contracted provider identification; preparer/contact
person; facility license type; reporting period; days of service by level
of care provided during the reporting period; facility capacity and occupancy
status; and cost report exemption determination. Providers that meet any one
of the following criteria are not required to complete the entire cost report:
(A)
total number of days of service for state-placed children
equal to or less than 10% of total days of service;
(B)
total number of PRS days of service equal to or less than
10% of total days of service;
(C)
no services provided to PRS children;
(D)
services provided to only Level of Care 1 children;
(E)
contract with PRS terminated or was not renewed;
(F)
occupancy rate for emergency shelters is less than 30%;
or
(G)
occupancy rate for all other facility types, except for
child-placing agencies, is less than 50%.
(5)
The occupancy rate equals the total number of days of service
provided during the reporting period divided by the maximum operating capacity.
The maximum operating capacity is the number of residents the facility is
equipped to serve multiplied by the number of days in the reporting period.
(6)
All contracted providers not meeting the exemption criteria
defined in paragraph (4) of this subsection are included in the rate-setting
population and must complete the entire cost report for rate-setting purposes,
including:
(A)
all child-placing agencies because they do not report occupancy;
(B)
emergency shelters with a 30% or more overall occupancy
rate; and
(C)
all other facilities with a 50% or more overall occupancy
rate.
(g)
A rate-setting model is applied to child-placing agencies'
and residential care facilities' cost report information included within the
rate-setting population defined in subsection (f) of this section. Three allocation
methodologies are used in the rate-setting model to allocate allowable costs
among the levels of care of children that are served. The methodologies are
explained below and are applied as follows:
(1)
The first methodology is a staffing model, validated by
a statistically valid foster care time study, driven by the number of direct
care and treatment coordination staff assigned to a child- placing agency
or residential care facility to care for the children at different levels
of care. The staffing model produces a staffing complement that is applied
to direct care costs to allocate the costs among the levels of care.
(A)
Staff positions reported on the direct care labor area
of the cost report are grouped into the following categories to more clearly
define the staffing complement required at each level of care:
(i)
case management;
(ii)
treatment coordination;
(iii)
direct care;
(iv)
direct care administration; and
(v)
medical.
(B)
A categorized staffing complement for each Level of Care
1 through 6 is derived as follows:
(i)
A 14-day foster care time study is applied to a representative
sample of residential care facilities and child-placing agencies that completed
a cost report.
(ii)
Contracted staff, or employees, within the sampled facilities
complete a foster care time study daily activity log that assigns half-hour
units of each employee's time to the individual child(ren) with whom the employee
is engaged during the time period. By correlating the distribution of the
employee's time with the level of care assigned to each child, the employee's
time is distributed across the Levels of Care 1 through 6.
(iii)
The foster care time study daily activity log also captures
the type of activity performed. The total amount of time spent in each of
these activities is a component in determining the number of staff needed
in each of the categories included in the staffing complement. The activities
performed include:
(I)
care and supervision;
(II)
treatment planning and coordination;
(III)
medical treatment and dental care; and
(IV)
other (administrative, managerial, training functions,
or personal time).
(iv)
An analysis of the cumulative frequency distribution of
these time units by level of care of all children served in the sample population,
by category of staff performing the activity, and by type of activity, establishes
appropriate staffing complements for each level of care in child- placing
agencies and in residential care facilities. These time units by level of
care are reported as values that represent the equivalent of a full-time employee.
The results are reported in the following chart for incorporation into the
rate-setting model:
Figure: 40 TAC §700.1802
(v)
The foster care time study should be conducted every other
biennium, or as needed, if service levels substantially change.
(C)
Staff position salaries and contracted fees are reported
as direct care labor costs on the cost reports. Each staff position is categorized
according to the staffing complement outlined for the time study. The salaries
and contracted fees for these positions are grouped into the staffing complement
categories and are averaged for child-placing agencies and residential care
facilities included in the rate-setting population. This results in an average
salary for each staffing complement category (case management, treatment coordination,
direct care, direct care administration, and medical).
(D)
The staffing complement values, as outlined in the chart
at paragraph (1)(B)(iv) of this subsection, are multiplied by the appropriate
average salary for each staffing complement category. The products for all
of the staffing complement categories are summed for a total for each level
of care for both child-placing agencies and residential care facilities. The
total by level of care is multiplied by the number of days of service in each
level of care, and this product is used as the primary allocation statistic
for assigning each provider's direct care costs to the various levels of care.
(E)
Direct care costs include the following areas from the
cost reports:
(i)
direct care labor;
(ii)
total payroll taxes/workers compensation; and
(iii)
direct care non-labor for supervision/recreation, direct
services, and other direct care (not CPAs).
(2)
The second methodology allocates the following costs by
dividing the total costs by the total number of days of care for an even distribution
by day regardless of level of care. This amount is multiplied by the number
of days served in each level:
(A)
direct care non-labor for dietary/kitchen;
(B)
building and equipment;
(C)
transportation;
(D)
tax expense; and
(E)
net educational and vocational service costs.
(3)
The third methodology allocates the following administrative
costs among the levels of care by totaling the results of the previous two
allocation methods, determining a percent of total among the levels of care,
and applying those percentages:
(A)
administrative wages/benefits;
(B)
administration (non-salary);
(C)
central office overhead; and
(D)
foster family development.
(4)
The allocation methods described in paragraphs (1)-(3)
of this subsection are applied to each child-placing agency and residential
care facility in the rate-setting population, and separate rates are calculated
for each level of care served. Rate information is included in the population
to set the level of care rate if the following criteria are met:
(A)
Providers must have at least 30% of their service days
within Levels of Care 3 through 6 for residential settings. For example, for
the provider's cost report data to be included for calculating the Level of
Care 3 rate, a provider must provide Level of Care 3 services for at least
30% of their service days.
(B)
For Levels of Care 5 and 6, a contracted provider could
provide up to 60% of "private days" services to be included in the rate-setting
population. They must provide at least 40% state- placed services.
(5)
Considering the criteria in paragraph (4) of this subsection,
the rate-setting population is fully defined for each level of care. Based
on this universe, each level of care rate will be established by the group's
central point or central tendency. The measure of central tendency is defined
as the mean, or average, of the population after applying two standard deviations
above and below the mean of the total population.
(6)
The total cost per day for each child-placing agency and
residential care facility is projected using the IPD-PCE Index from the period
covered in the cost report to September 1 of the second year of the biennium,
which is the middle of the biennium that the rate period covers. Information
on inflation factors is specified in subsection (h) of this section.
(h)
PRS uses the Implicit Price Deflator - Personal Consumption
Expenditures (IPD-PCE) Index, which is a general cost inflation index, to
calculate projected allowable expenses. The IPD-PCE Index is a nationally
recognized measure of inflation published by the Bureau of Economic Analysis
of the United States Department of Commerce. PRS uses the lowest feasible
IPD-PCE Index forecast consistent with the forecasts of nationally recognized
sources available to PRS when the rates are prepared. Upon written request,
PRS will provide inflation factor amounts used to determine rates.
(i)
All reimbursement rates will be equitably adjusted to the
level of appropriations authorized by the Legislature.
(j)
There will be a transition period for the fiscal year 2002-2003
biennium. During this period current rates will not be reduced, and any increased
funding will be applied to those levels of care that are less adequately reimbursed
according to the methodology. Since increased funding was appropriated at
a different percentage for each year of the 2002-2003 biennium, the rates
will be set separately for each year instead of setting a biennial rate, and
inflation factors will be applied to the middle of each year of the biennium.
Full implementation of the methodology will occur during the fiscal year 2004-2005
biennium.
(k)
The Board may adjust payment rates, if determined appropriate,
when federal or state laws, rules, standards, regulations, policies, or guidelines
are changed or adopted. These adjustments may result in increases or decreases
in payment rates. Providers must be informed of the specific law, rule, standard,
regulation, policy or guideline change and be given the opportunity to comment
on any rate adjustment resulting from the change prior to the actual payment
rate adjustment.
(l)
To implement Chapter 1022 of the Acts of the 75th Texas
Legislature, §103, the executive director may develop and implement one
or more pilot competitive procurement processes to purchase substitute care
services, including foster family care services and specialized substitute
care services. The pilot programs must be designed to produce a substitute
care system that is outcome-based and that uses PRS's outcome measures. Rates
for the pilot(s) will be the result of the competitive procurement process,
but must be found to be reasonable by the executive director. Rates are subject
to adjustment as allowed in subsections (a) and (k) of this section.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State, on June 22, 2001.
TRD-200103575
C. Ed Davis
Deputy Director, Legal Services
Texas Department of Protective and Regulatory Services
Earliest possible date of adoption: August 24, 2001
For further information, please call: (512) 438-3437
Subchapter L. CONTRACT ADMINISTRATION
The Texas Department of Protective and Regulatory Services (PRS) proposes
the repeal of §§732.201 - 732.207, 732.209 - 732.236, and 732.262,
and proposes new §§732.201 - 732.228 and 732.262, concerning contract
administration, in its Contracted Services chapter. The purpose of the repeals
and new sections is to delete unnecessary PRS rules and replace them with
rules that are consistent with the contracting rules adopted by the Health
and Human Services Commission.
Mary Fields, Budget and Federal Funds Director, has determined that for
the first five-year period the proposed sections will be in effect there will
be no fiscal implications for state or local government as a result of enforcing
or administering the sections.
Ms. Fields also has determined that for each year of the first five years
the sections are in effect the public benefit anticipated as a result of enforcing
the sections will be that the rules will be consistent with the rules of other
Health and Human Services Commission agencies and will match revised state
and federal requirements. There will be no effect on large, small, or micro-businesses
because the rules do not impose any new requirements. There is no anticipated
economic cost to persons who are required to comply with the proposed sections.
Questions about the content of the proposal may be directed to Ron Curry
at (512) 833-3405 in TDPRS's Contract Administration Division. Written comments
on the proposal may be submitted to Texas Register Liaison, Legal Services-177,
Texas Department of Protective and Regulatory Services E-611, P.O. Box 149030,
Austin, Texas 78714-9030, within 30 days of publication in the
Texas Register
.
Under §2007.003(b) of the Texas Government Code, the department has
determined that Chapter 2007 of the Government Code does not apply to these
rules. Accordingly, the department is not required to complete a takings impact
assessment regarding these rules.
,
]
104-193, the Personal Responsibility and Work Opportunity Reconciliation Act
of 1996.
Part 2.
TEXAS REHABILITATION COMMISSION
Part 19.
TEXAS DEPARTMENT OF PROTECTIVE AND REGULATORY SERVICES
Nonrecurring lump-sum
payments received after certification for foster care assistance are generally
considered as countable income. Exceptions are detailed in §§3.3208
through 3.3213 of this title (relating to Income) in the AFDC chapter of rules.
If the lump-sum payment plus other countable income for a month is equal to
or greater than the cost of foster-care maintenance, the child is ineligible
for a period of time. The period of ineligibility is determined by dividing
the amount of the lump-sum payment and other countable income by the monthly
cost of care. The resulting whole number is the number of months the child
is ineligible for foster care assistance. Any remaining amount from this division
is considered as income the first month after the period of ineligibility.
]
Chapter 700.
CHILD PROTECTIVE SERVICES
Subchapter R. COST-FINDING METHODOLOGY FOR 24-HOUR CHILD-CARE FACILITIES
Chapter 732.
CONTRACTED SERVICES