Subchapter D. HOME AND COMMUNITY-BASED SERVICES (HCS) PROGRAM

The Texas Department of Mental Health and Mental Retardation (department) adopts new §§419.211, 419.215-419.218, 419.224, 419.241, 419.243, and 419.245-419.249, and amendments to §§419.255, 419.256, 419.260, and 419.269 of Chapter 419, Subchapter E, concerning ICF/MR programs, without changes to the text as proposed in the March 30, 2001, issue of the Texas Register (26 TexReg 2487). The following sections are adopted with changes: §§419.203, 419.213-419.214, 419.219, 419.223, 419.225-419.227, 419.236-419.240, 419.242, 419.244, and 419.299.

The new sections describe the following requirements for the Intermediate Care Facilities for Persons with Mental Retardation (ICF/MR) Program in Texas including, provider administrative requirements in new Division 3; provider service requirements in Division 4; eligibility, enrollments, and review in new Division 5. The amendments to §419.203 in Division 1 add the definitions of terms used in the proposed new sections. In Division 4, new §419.227, concerning discharge from a facility, incorporates the provisions of repealed §419.223, also concerning discharge from a facility, with clarifying revisions. The repeal of §419.223 permits a more logical organization of the new sections within the division. New §419.223 addresses requirements of the program provider to conduct an annual review of living options. In Division 7, new §419.269, concerning audits, incorporates the provisions of repealed §419.262, concerning auditing, with other auditing provisions. The listing of references in repealed §419.299 are augmented by a much longer listing of references from the new sections in new §419.299, concerning references.

The following new requirements are described in the new sections. A program provider must perform a capacity assessment if it believes a guardian for that individual may be appropriate and a referral to the appropriate court is anticipated, or if the program provider is ordered by a court to conduct a capacity assessment. In general, only local mental retardation authorities (MRAs) may request enrollment of an applicant into the ICF/MR program, except that a program provider may request enrollment if the applicant received ICF/MR services from a non-state operated facility during the six months prior to the request and the applicant is not moving from or seeking admission to a state school or state center. If the department grants a reinstatement of a lapsed level of care (LOC), the reinstatement will be for a period of not more than 180 days prior to the date of electronic transmission of the MR/RC Assessment. Previously, the period had been one year.

The new sections incorporate existing policies and procedures described in the bulletins that have been distributed by the department's Office of Medicaid Administration to program providers during the past several years. These include a description of circumstances that require the ICAP to be re-administered and clarification of the documentation that must be submitted when the program provider requests an increase in an individual's LON.

The new sections replace existing Chapter 406, Subchapter C, concerning vendor payments; Chapter 406, Subchapter E, concerning eligibility and review; and §§406.302-406.309 and §406.311 of Chapter 406, Subchapter G, concerning additional facility responsibilities, the repeals of which will be adopted in a later issue of the Texas Register . Elsewhere in this issue of the Texas Register , the department adopts the repeal of §419.223, concerning discharge from a facility; §419.262, concerning auditing; and §419.299, concerning references.

Some of the topics currently addressed in the sections of Chapter 406 that are being repealed are not addressed in the new sections because those topics already are addressed in federal regulations or Texas Department of Health rules. These topics include day services, health and hygiene services, requirements for the self-administration of medication, and medical transportation.

The new sections are part of a comprehensive review, revision, and reorganization of the department's ICF/MR Program rules in Chapter 406. As the sections in existing Chapter 406 are reviewed, the subject matter is incorporated into new sections in Chapter 419, Subchapter E. The first new sections concerning general requirements and personal funds were adopted in late 1999. In December 2000, the department adopted additional new sections concerning provider enrollment in Division 2, provider service requirements in Division 4, and provider agreement sanctions in Division 7. The comprehensive review, revision, and reorganization of the ICF/MR Program rules is being conducted in conjunction with the review of rules required by Texas Government Code, §2001.039.

In §419.203, the terms "assignment," "non-state operated facility," "PDP (person-directed plan)," "related condition," "state-operated facility," and "working day" are defined and the paragraphs re-numbered. The definitions of "CFR," "ICAP," "IQ," "LOC," "LON," "TAC" "THSC," and "USC" are revised to provide a clearer description of their meanings. The definition of "IDT (interdisciplinary team)," is revised to specify that the IDT assesses an individual's needs and makes recommendations for the IPP. The definition of "LAR (legally authorized representative) is revised to delete the terms "surrogate decision-maker" and "surrogate consent committee." The definitions of "mental retardation" and "permanency planning" are revised to be consistent with the definitions used in other department rules. The definition of "specially constituted committee" is revised to correct the plural "individuals" to the singular "an individual's."

In §419.213(a)(13), language is added to specify that the program provider must maintain in each individual's record a summary of the individual's medication history for the last five years or from the time of initiation of services, whichever is most recent. As proposed, the provision did not specify a time period for the summary.

In §419.214(c), the term "state schools and state centers" is substituted for "state-operated facilities" and the term "state school and state center" for "state-operated facility" to clarify that this provision does not apply to small state-operated facilities. In subsection (d) of that same section, the phrase "other than state schools or state centers" is inserted after "facilities" to clarify that this provision does not apply to state schools and state centers.

In §419.219(b), the language is revised to specify that a program provider other than a state school or state center will be reimbursed for durable medical equipment in accordance with the reimbursement rules of the Texas Health and Human Services Commission (1 TAC §355.455). Subsections (f), (g), and (j), which also address durable medical equipment, are deleted. In addition, subsection (e) is deleted because the systems are not yet in place to implement this provision. The subsections of §419.219 are relettered.

Subsection (a) of §419.223(a) has been revised to clarify that state schools and state centers follow the living options process described in the department's continuity of services rule (Chapter 412, Subchapter F) when discussing living options with an individual or LAR.

In §419.225(2), "state schools and state centers" is substituted for "state-operated facilities" to clarify that this provision does not apply to small state-operated facilities. In paragraph (3)(A) of that section, the reference is corrected to cite the department's newly adopted rule governing abuse, neglect, and exploitation in local authorities and community centers.

The numeral "3" is replaced with the word "three" in §419.226(h) and §419.227(i) to comply with current department and Texas Register style guidelines.

In §419.227(f), language has been added to explicitly describe the exception to the requirement that a program provider obtain written approval from the department prior to the effective date of the proposed discharge of an individual because of maladaptive behavior. Because the discharge of an individual under this section from a state school or state school for transfer to a psychiatric facility for inpatient services is reported in the department's Client Assignment and Registration (CARE) system, subsection (i) is revised to specify that a state school or state center is not required to submit an additional notice of the discharge to the department.

A typographical error is corrected in §419.236(b)(1) with the addition of closing quotes after the term "brain death." In addition, new paragraph (b)(4) is added which specifies that an additional circumstance under which an individual is not in need of and able to benefit from active treatment is when the individual is generally able to function with little supervision or without a program of continuous active treatment.

Subsection (f) of §419.237 is revised to specify that the effective date of an initial LOC will be the date requested by the MRA, which may be no earlier than 30 days prior to the date the MR/RC Assessment is electronically transmitted to the department. As proposed, the effective date of the initial LOC would have been the date that the MR/RC Assessment was transmitted.

Language is deleted in §419.238 and §419.239 because that language is included in the definition of related condition that has been added in §419.203.

A typographical error is corrected in §419.240(c) with the substitution of "MR/RC" for "MR/MC."

In §419.242(4), a new subparagraph (E) is added stating that the individual's PDP should be submitted, if available, when requesting an increase to an existing LON based on the results of an ICAP assessment.

Another typographical error is corrected in §419.244(b)(1) with the substitution of "ICF/MR" for "ICF-MR." In §419.244(b)(2), "state school or state center" is substituted for "state-operated facility" to clarify that the provision does not apply to individuals moving from or seeking admission to a small state-operated facility. Subsection (c)(1) of §419.244 is revised to require that the program provider selected by an applicant or the applicant's LAR must notify the MRA in writing that admission to the program provider's facility has been offered to the applicant. After consultation with representative MRAs, the department has revised §419.244(e) to specify that an MRA must accomplish enrollment activities no later than 15 working days after the MRA receives notification from the program provider that a placement has been offered to the applicant and from the applicant or LAR that the program provider has been selected. As proposed, the provision permitted an MRA 30 calendar days to accomplish the activities. Paragraph (3) of subsection (e) has been revised to clarify the actions the MRA must take if the applicant has an existing LOC.

In paragraph §419.299(18), the reference is corrected to cite the department's newly adopted rule governing abuse, neglect, and exploitation in local authorities and community centers.

A hearing to accept public comment was held on April 17, 2001, in Austin. No testimony was presented. Written comments were received from the parent/guardian of a state mental retardation facility resident, Garland; seven state mental retardation facilities including Brenham State School, Denton State School, El Paso State Center, Lubbock State School, Mexia State School, San Angelo State School, and San Antonio State School; 16 private providers including Bethesda Lutheran Homes and Services, Inc., Cypress; Bluebonnet Residential Center, Godley; CALAB, Inc. in Lubbock and San Antonio; Classic Group Home, Houston; Community Access, Inc., Tyler; Community Living Concepts, Inc., Keene; EduCare Community Living, Denton; New Horizons, Benbrook; Newstart, Inc., Fort Worth; Residential Management, Inc., San Antonio; Rock House, Inc., Stephenville; Southern Concepts, Inc., Granbury; Summer House II, Georgetown; UCP of Metropolitan Dallas; Vita-Living, Inc., Houston; and Volunteers of America, Arlington; and four advocacy organizations including Advocacy, Inc., Austin; The Arc of Texas, Austin; Texas Council for Developmental Disabilities, Austin; and the Private Providers Association of Texas (PPAT), Austin.

Three commenters asked that the department address in an appropriate section of the subchapter the issue of children and adults being roommates and/or residing in the same facility. The commenters stated that while the practice might be fine if the child and adult are almost the same age, as a general rule it is not acceptable for children to be rooming/residing with adults. The commenters further stated their belief that that children belong in a family setting rather than an ICF/MR facility, but said they recognized that children are living in ICF/MR facilities today. Therefore, the issue of children rooming/residing with adults must be addressed and limitations imposed. The department responds that program providers are required to comply with the federal standards of participation which require, in part, at 42 CFR §483.470(a)(1), that individuals "of grossly different ages, developmental levels, and social needs" must not be housed "in close physical or social proximity unless the housing is planned to promote the growth and development of all those housed together." The department recommends that the commenters report concerns about a particular provider's compliance with this provision to the ICF/MR survey office at the Texas Department of Human Services.

Six commenters stated that the fiscal impact statement in the proposal preamble was inaccurate in stating that "does not have foreseeable implications relating to costs or revenues of state or local government." Another commenter questioned how MRAs can perform the additional responsibilities required in §419.244 in a timely manner without employing additional resources. The same commenter further questioned whether MRAs have currently underutilized resources which they can divert to performing these additional responsibilities without incurring costs requiring additional revenues. One commenter from a state school noted that during the course of a year the process of requesting renewals and revisions of level-of-care and level-of-need is labor intensive, and requires the equivalent of one "full-time equivalent" to copy the necessary documentation, compile the information, and review it to ensure that requested increases are substantiated. The department responds that it has kept MRAs informed of the department's intent to have MRAs assume these responsibilities as the single point of entry for ICF/MR Program services. In addition, the department has reviewed the 15-month history of new admissions to private ICFs/MR since January 2000 and does not believe that the volume of new admissions in the future will significantly increase MRA costs. The department will be monitoring the new enrollment process once it is implemented September 1, 2001, to ensure that potential delays in enrollments are addressed. Regarding the comment about the staff resources needed to request renewals and revisions of LOC and LON, the department notes that the rule requires only that MRAs request an initial LOC and LON for an applicant. Program providers will continue to request renewals and revisions.

Twelve commenters disputed the economic impact statement in the proposal preamble that stated there would be no "adverse economic effect" on program providers because the new processes for enrollment "do not impose any measurable cost." The commenters stated that having the MRA responsible for most enrollments and permitting the MRA 30 days in which to "initiate" the enrollment process would result in lost reimbursement to program providers when a vacancy occurs. One commenter said that one facility at 99% occupancy that experiences a vacancy for 50 days will have an average revenue loss of $7,600, and a vacancy for 75 days will represent an average revenue loss of $8,950. Another commenter who is a program provider with both six and 13 bed facilities estimated that this requirement will result in a loss to the program provider of $100,000 per year as a result of anticipated delays in filling vacant beds. The commenter further stated that no evidence had been presented by the department to indicate that an analysis had been conducted to determine how much this rule will impact program providers. Two commenters stated that program providers with small facilities operate on slim profit margins and the new requirement will have a strongly negative economic impact on those providers. Four commenters stated that fixed costs such as house and vehicle payments, utilities, and insurance are not reduced by a vacancy, and that the number of staff required for the facility generally cannot be decreased. The department does not believe that program providers will suffer an adverse economic impact as a result of MRAs being required to request enrollment in the ICF/MR Program for new applicants. However, the department has revised §419.237 and §419.244 to address the process concerns of program providers. Subsection (f) of §419.237 is revised to specify that the effective date of an initial LOC is the date requested by the MRA which may be up to 30 days prior to the date the MR/RC Assessment is electronically transmitted to the department. This will enable a program provider to provide services to an individual and receive reimbursement if enrollment is completed within the 30 day time period. After consultation with representative MRAs, the department has revised §419.244(e) to specify that an MRA must accomplish enrollment activities no later than 15 working days after the MRA receives notification from both the program provider and the applicant or LAR that the program provider has been selected by the applicant or LAR. The department believes these changes address the concerns of program providers that enrollment of applicants will not be accomplished by MRAs in a timely fashion.

One commenter requested that the term "assignment" be defined in §419.203. The department agrees and has added the term and definition.

Another commenter requested that subparagraph (F) of the definition of "behavior intervention plan" be reworded to specify that the staff interventions being described must be appropriate. The commenter stated that the definition as proposed could be interpreted to mean that anecdotal data regarding past events should be included. The department believes that the provision as proposed is clear and unambiguous, and declines to revise the definition as requested.

A commenter questioned whether the term "budgeted amount" still means $3 per week not to exceed $12 per month for state MR facilities. The department responds that the budgeted amount for each individual is determined by the IDT based on the individual's needs and ability to handle money.

Two commenters, each of whom represented either a state school or state center, stated that the definition of "discharge" was not consistent with the definition contained in the department's rule concerning continuity of services in state MR facilities. One commenter stated that a "short term" absence should not be considered a "discharge." The commenter stated that hospitalization is not a therapeutic leave, and questioned whether a hospitalization required the initiation of a full discharge from the facility. The commenter stated that it would be hard to give a 30 day notice before the effective date of a hospitalization. The department responds that the term "discharge" in the ICF/MR rules has a different meaning in department rules relating to state schools and state centers and that hospitalization is a "discharge" as defined in this rule. In addition, the department acknowledges that a 30-day notice may not always be feasible but, as stated in §419.227(c), the program provider must document why certain actions, including giving notice, are not feasible.

Another commenter requested that the definition of "IDT (interdisciplinary team)" be revised to be consistent with the definition in the Persons with Mental Retardation Act. The department agrees and has revised the definition as requested.

One commenter suggested that the following terms be defined consistent with other department rules: "ICAP," ICF/MR Program," "IQ," "LOC," "LON," "mental retardation," and "permanency planning." The department agrees that the definitions of "IQ," "LOC," "LON," "mental retardation," and "permanency planning" should be consistent with those in other department rules, and has revised the language accordingly. While "ICAP" is not defined in any other department rule, the proposed definition has been revised to provide a clearer description of what the term means. The definition of ICF/MR Program is the same as that in the currently effective Chapter 419, Subchapter E, governing ICF/MR programs.

One commenter requested that the definition of "permanency planning" be revised to specify that it is a philosophy and planning process for individuals under the age of 18. The department has revised the definition to be consistent with the definitions in other department rules by adding the phrase "for a minor."

One commenter recommended that the term "surrogate decision maker" not be included in the definition of "LAR (legally authorized representative)," stating the surrogate decision makers do not have the same authority as the other people listed in the definition. The department notes that, as stated in the definition, the persons listed as examples of LARs may act as an LAR in regard to the particular matter in question, only if they are authorized by law to do so. The rule definition does not attempt to extend that authority. In any event, for purposes of clarity TDMHMR will not include "surrogate decision maker" or "surrogate consent committee" in the definition.

One commenter recommended that the term "pooled account" as defined in §419.203 be changed to "co-mingled." The department declines to make the requested revision because the sections of Chapter 419, Subchapter E in which the term appears were not proposed for review and comment.

Concerning the definition of "program provider," one commenter stated that it would be helpful if the definition explicitly addressed either the inclusion or exclusion of state MR facilities from this category. The commenter voiced the assumption that state MR facilities are not bound to the same requirements as "program providers" and remarked that there is a difference between a licensed and contract facilities. The department responds that the term program provider includes all ICFMR providers. In those instances where a requirement or process applies to a specific type of facility, it is explicitly stated in the rule.

Seven commenters recommended that the definition of "related condition" not be deleted. The department agrees and has added the term and definition, to §419.203.

Concerning the definition of "sales receipt" a commenter questioned whether this term refers only to trust fund purchases that exceed the budgeted amount. The department responds that the definition of sales receipt is not limited to particular purchases. Section 419.256 sets forth requirements for expenditures of personal funds.

A commenter recommended that the definition of "separate account" be revised to read "A trust fund account that contains an individual's personal funds." The department responds that the definition is clear as written, and that the recommended revision does not specify that the account contains only one individual's personal fund. The department declines to revise the definition as requested.

Another commenter questioned what the term "contemporary" means as it is used in the definition of "specially constituted committee." The department responds that "contemporary" as used in this section means " current or modern" and is the term used in 42 CFR §483.440(f)(3). The department notes that the all program providers should be in compliance with this provision of the CFR.

Concerning §§419.219(h)(3), 419.237(a), and 419.240(a), a commenter from a state school stated that the facility is still being asked to admit individuals who do not have a current, complete ICAP assessment and that without that assessment the facility cannot submit the MR/RC required for determination of an LOC. The department responds that §419.244(a) and (b) require the MRA, not the program provider, to request enrollment of an applicant moving from or seeking admission to a state school or state center. As described in §419.244(e), the enrollment process includes the MRA obtaining an ICAP score and requesting an LOC determination for individuals who do not have current LOC determinations. Furthermore, §419.237 has been revised to allow an initial LOC to be effective up to 30 days prior to the date the MR/RC Assessment is electronically transmitted to the department.

A commenter stated that the process for discussing living options as discussed in §419.223 should be consistent with that in the department's recently adopted continuity of services rule for state-operated facilities, Chapter 412, Subchapter F. Another commenter stated that as written, the section seems to imply that a discussion of living options is not required for individuals residing in state MR facilities. The department responds that the process as described in this rule is consistent with the requirements of Chapter 412, Subchapter F. The department has revised subsection (a) to clarify that state schools and state centers must comply with 25 TAC §412.274 concerning an individual's living options.

Three commenters recommended that "or" between individual and LAR be changed to "and" in §419.223(a). because the use of "or" is not consistent with the philosophy of person-directed planning espoused by the department. The commenters stated that the use of "or" makes it far too easy for the IDT to exclude rather than include an individual in the IDT process when there is a LAR. The commenters stated that an individual with an LAR should take part in IDT proceedings unless participating would be harmful to the individual. The department concurs with the recommendation as the objective of the Living Options process is to solicit preferences of both the individual and the LAR, and has revised subsection (a) as requested. Use of the term "or" is retained when a decision by the person with legal authority is required. The commenters also recommended that reviews of living options for minors be performed at least semi-annually but preferably on a quarterly basis. The department believes that the commenters' recommended revision constitutes a significant change to the rule as proposed that the department declines to make at this time.

A commenter requested that §419.223(c)(3) be revised to read "assist the individual or LAR in accessing the service requested when it becomes available." The department agrees and has revised the language as requested.

A commenter stated that while the Capacity Assessment for Self Care and Financial Management described in §419.224 is not complicated to understand, it is 23 pages long and will certainly require resources to complete. The commenter further stated that the rule is not clear as to when the assessment should be performed. The commenter questioned whether the assessment must be performed if the individual's family decides to pursue guardianship and whether the completed assessment is submitted to the court. The department responds that the assessment itself is seven pages long and that the balance of the 23 pages is general instructions. The department believes the section clearly describes the circumstances under which the assessment is to be completed and declines to make the suggested revisions.

Concerning §419.225, a commenter questioned whether state schools and state centers should report injuries of an unknown source to the Texas Department of Human Services. The department responds that, as stated in the section, reporting requirements for state schools and state centers are described in department rules at Chapter 417, Subchapter K, concerning abuse, neglect, and exploitation in TDMHMR Facilities, and in the Memorandum of Understanding Between Texas Department of Mental Health and Mental Retardation (TDMHMR) and Texas Department of Human Services (TDHS) and Texas Department of Protective and Regulatory Services (TDPRS) concerning Reportable Incidents in State Schools, State Centers, State Operated Community-based MHMR Services, and Community Mental Health and Mental Retardation Centers with Intermediate Care Facilities for the Mentally Retarded (ICF/MR) . Copies of the memorandum of understanding are available from the department's Office of Policy Development. Also concerning §419.225, another commenter stated that (2)(B) and (3)(A) should be the same for all program providers. The department responds that the intent of the comment is unclear. However the department believes the section accurately describes the reporting procedures for allegations of abuse, neglect, and exploitation for each category of program providers and, therefore, declines to make the recommended revision.

Concerning §419.226(b)(1), one commenter questioned why the rule didn't simply state "if the individual is absent from the facility for 72 hours". The department responds that the provision accurately describes the relevant timeframe and declines to make the suggested revision. Concerning the same paragraph, another commenter suggested that "midnight to midnight" be added following "full day." The department responds that full day is defined in §419.203 as "a 24-hour period extending from midnight to midnight" and declines to make the suggested revision. Concerning §419.226(h), a commenter questioned whether the program provider must submit a completed client movement form to the department whenever the individual returns from leave, regardless of the type of leave. The department responds that the Client Movement form must be submitted after the individual returns to the facility from any type of leave.

A commenter stated that §419.227 attempts to limit "dumping" by program providers but does not require involvement of the MRA unless the individual is being admitted to a psychiatric hospital for inpatient services, and then only after the fact. The commenter stated that the involvement by the MRA should be required to allow for a smoother transition from provider to provider or so that supports can be put in place to assist the family if a return home becomes necessary. The department responds that paragraph (c)(1) requires that the MRA be informed of a proposed discharge in writing at least 30 days before the effective date of the discharge and that paragraph (c)(4) requires that the MRA receive a copy of the final summary and the post-discharge plan. In addition, §419.227(i) requires notification of the MRA within three days of a discharge when an individual requires immediate admission for in-patient psychiatric services. One commenter questioned whether this section is consistent with the discharge provisions of the department's recently adopted continuity of services rule for state MR facilities. The department replies that the section is consistent with Chapter 412, Subchapter F and that if a state school or state center complies with the provisions in that subchapter, the facility will have complied with the provisions of this section.

Also concerning §419.227, another commenter stated that subsection (b) should specify that the first full day an individual is absent from a facility is the effective date of a discharge only if the individual is competent. The department responds that an individual's presence or absence from the facility, rather than an individual's competency determines the effective date of a discharge, and declines to make the requested revision. A commenter stated that the phrase "why such an action is not feasible" should be deleted in subsections (c) and (d), and questioned what circumstances could justify not giving the individual or LAR prior notice of a discharge. The department recognizes that emergency or unanticipated circumstances occur, such as hospitalizations or an individual's decision to leave a facility, that would prevent the program provider from meeting the timeframes specified in the section, and declines to revise the provision as requested. The commenter also stated that subsection (c)(1) should be revised to state that notice of a discharge should be given to the individual or LAR, if there is one and that subsection (c)(4) should be revised to specify that the copy of the final summary and the post-discharge plan should be provided to the individual or the LAR, if there is one. The department responds that discharge is a significant event that warrants prior notification to both the individual and the LAR, as well as providing a copy of the final summary and post-discharge plan to both the LAR and the individual and declines to revise the language as requested. Concerning (c)(2), the commenter expressed concern that permitting program providers to justify discharge of an individual by saying that the facility can no longer meet the individual's needs will be used by program providers who just do not want to keep that individual. The department responds that the requirement that providers must document the reason for the proposed discharge serves an important purpose in that it allows TDHS surveyors to review such reasons during surveys and determine whether a program provider is in compliance with federal regulations concerning discharge at 42 CFR §483.440(b)(4) and (5). In addition, the department must approve all discharges proposed because of an individual's maladaptive behaviors, in accordance with §419.227(f). Concerning §419.227(f)(4), a commenter stated that the program provider must have a psychologist work with the individual before even considering scheduling an IDT meeting to discuss a proposed discharge. The department agrees that a psychologist should be consulted about an individual's maladaptive behavior before an IDT meeting is called to discuss a proposed discharge due to the maladaptive behavior. A commenter requested that subsection (i) be revised to clarify whether the transfer to a state mental health facility for 30 days of an individual who is court-committed to a state MR facility under the Persons with Mental Retardation Act qualifies as a discharge under this section. Also concerning subsection (i), another commenter stated that if a program provider will not be readmitting an individual following an admission to a psychiatric facility for inpatient services, that the program provider must bear some responsibility to find an alternative placement for the individual if the hospitalization lasts for less than 90 days or whatever length of time the department believes is appropriate. The commenter explained that the section as proposed permits a provider to request admission of an individual to a psychiatric facility for inpatient services of less than a week, pay for the hospitalization, and then discharge the individual. The department responds that when an individual is discharged to a psychiatric facility, the program provider must comply with subsections (c) through (e) of §419.227, which includes the development of the final summary and the post-discharge plan. If the program provider does not intend to readmit the individual, the MRA may facilitate location of alternative services.

Two commenters stated that §419.236 should address all eligibility criteria and should be consistent across all department rules relating to the ICF/MR Program. One of the two commenters stated that this section is misleading because it implies that this criteria applies to state MR facility placement. A third commenter questioned whether the criteria in this section should be consistent with the criteria in recently adopted Chapter 412, Subchapter F, concerning continuity of services -- state MR facilities. The department responds that the eligibility criteria described in this section are for admission to the ICF/MR Program and that, when adopted, this will be the only department rule that addresses eligibility criteria for the ICF/MR Program. Program providers are permitted to establish additional criteria for the facilities they operate. State law (Persons with Mental Retardation Act) prescribes additional criteria for admission to a state MR facility that are described in Chapter 412, Subchapter F.

A commenter stated that an item should be added to the listing in §419.236(b) that addresses situations in which an individual does not need active treatment due to the capabilities of the individual. The department agrees and has revised the provision as requested.

Concerning §419.237(c), a commenter approved of the department's change from four to two levels of care (LOC) as a way of simplifying the assignment process. The department acknowledges the approval.

Concerning §419.237(f) which says the effective date of the initial LOC is the date the MR/RC Assessment is electronically transmitted to the department, a commenter stated that a program provider who admits an individual might have several days when there is no LOC if additional time is needed to obtain the information for the MR/RC assessment beyond the 20-day "window" permitted for new admissions. The department responds that the commenter's concern is addressed with the department's revision of subsection (f) to specify that the MRA can specify an effective date of an initial LOC that is no more than 30 days prior to the date the MR/RC Assessment is electronically transmitted to the department. This will enable a program provider to provide services to an individual and receive reimbursement from the day the services began if the MR/RC Assessment is transmitted within 30 days.

A commenter requested that in addition to retaining the definition of "related condition" in §419.203, the department should reference the definition section after "related condition" is used in §419.238(a)(1)(B) and §419.239(1). The department notes such references are not used for other terms that are defined in §419.203 and declines to make the requested change.

One commenter requested that language explaining the Inventory for Client and Agency Planning (ICAP) be added in §§419.240, 419.241, 419.242, and 419.244. The department responds that it has revised the definition of ICAP in §419.203 to describe what the ICAP is. Therefore, the department does not believe that explanatory language is necessary in the four sections cited by the commenter, and declines to add the language as requested.

Concerning §419.240, a commenter stated the section should be consistent with other department rules and that definitions of "dangerous behavior" and "medically fragile" should be added in §419.203 that are consistent with those in other department rules. The department responds that provisions in §419.241 concerning level of need criteria, are intended to describe the conditions under which an increase in LON and, thus, reimbursement, is appropriate if an individual exhibits dangerous behavior. The description of dangerous behavior in §419.241 is not contradictory of other definitions used in other department rules and, therefore, the department declines to add the definition as requested. The department further notes that "medically fragile" is not used in this subchapter, and declines to define the term as requested.

A commenter stated that §419.240(h) apparently permits the LON to be reviewed at anytime because no timelines are specified. The department agrees that the provision does permit an individual's LON to be reviewed at anytime.

A commenter stated that the §419.241(b)(4) is unclear when it requires that staff "are constantly prepared to physically prevent the dangerous behavior." The commenter stated that the requirement could be interpreted to mean that a staff member must be within arm's reach, which is the language used for requesting a LON 9. The commenter suggested that the requirement be reworded to read "management of the individual's behavior requires that staff members intervene when the behavior occurs." The department declines to make the requested revision because the level of intensity of intervention is clearly described for an increase in LON and a LON 9. The recommended revision does not add clarity to either subsection (b) or (c).

Another commenter suggested that "certified medication aides" be included in §419.241(d)(1). The department declines to make the suggested revision because an increased LON is allowed only if the individual's need for direct treatment falls requires services of a licensed nurse. Services of a medication aide do not justify an increase in the individual's LON. Another commenter requested the deletion of §419.241(d)(2) which addresses documentation in the individual's record of the amount of time spent on nursing treatment, reasoning that if this is not documented, the individual has to wait for some period of time after documentation begins to receive an increased LON. The commenter stated that this information is not usually documented and would not be available if the staff determine that an increase in LON is appropriate. The department declines to delete the language as requested because, for a newly admitted individual the necessary documentation may be available from a previous provider of nursing services. The department states that without documentation of nursing services there would be no basis upon which to determine that an increase in LON is appropriate. The requirement for documentation of nursing services is not a new policy.

Concerning §419.242(1)(E), a commenter questioned whether the requirement is intended to make if more difficult for a program provider to receive a requested increase in an individual's LON. The department responds that the requirement is intended to clarify the documentation necessary to justify a request for an increased in LON. This provision reflects current practice described in department policy memoranda and is not a new requirement.

Nine commenters requested that the department not adopt the provisions in §419.244 that permit only an MRA to request the enrollment of an individual in the ICF/MR Program in most situations. Four of those nine commenters requested that the department convene a meeting of appropriate stakeholders, including consumer advocates, private program providers, MRAs, and department staff to address what the commenters characterize as "deficiencies inherent" in the section as proposed. Another four commenters stated their strong opposition to the adoption of the section as proposed but did not request that the proposal be withdrawn. The department responds that after consultation with representative MRAs, the department has revised §419.244(e) to specify that an MRA must accomplish enrollment activities no later than 15 working days after the MRA receives notification from both the program provider and the applicant or LAR that the program provider has been selected by the applicant or LAR. The department believes this revision addresses the concerns of program providers that enrollment of applicants will not be accomplished by MRAs in a timely fashion. The department further notes that the Access to Services Work Group, whose recommendations were submitted to the Texas MHMR board in March 1999, recommended a single point of access for all services provided or contracted for by the department, including ICF/MR Program services. The work group further recommended that the local authority be the single point of access and that the model for this authority function be the system developed at the MRLA pilot sites. The work group included representatives of MRAs, private providers, and the Private Provider Association of Texas (PPAT) in the membership, as well as consumers, family members and advocacy organizations.

A commenter stated that an individual who may be eligible for admission to a facility under Medical Assistance Only (MAO) must first live in an institution to become eligible for the program. The commenter stated that §419.244 does not seem to address this situation and, therefore, would prevent eligible people from receiving needed services and may be a violation of the Social Security law. The department responds that changes in the process for enrollment of applicants into the ICF/MR Program do not affect the determination of Medicaid eligibility for individuals who become eligible for services under MAO as a result of enrollment in the ICF/MR Program.

Seven commenters stated that §419.244 will unnecessarily delay access to services for eligible individuals when space is available. The commenters further stated that the section does not provide adequate safeguards for individuals and does not recognize the impact the requirement will have on individuals seeking ICF/MR Program services. Two of the commenters stated that the rule is unfair to applicants who have not resided in an ICF/MR before. The commenters stated that under this rule, the enrollment period for an applicant with a history of having resided in an ICF/MR would be much shorter and thus have less of a negative impact on program provider. The commenters stated that the rule as proposed creates barriers to admission for applicants coming straight from their family homes, and that this was especially true for those applicants who require urgent placement, such as when an aging caregiver becomes sick or dies and immediate placement is necessary. The department has revised subsection (f) of §419.237 to specify that the effective date of an initial LOC is the date requested by the MRA, which may be up to 30 days prior to the date the MR/RC Assessment is electronically transmitted to the department. This will enable a program provider to begin serving an individual and receive reimbursement from the day of the admission if the MR/RC Assessment is transmitted within 30 days. After consultation with representative MRAs, the department has revised §419.244(e) to specify that an MRA must accomplish enrollment activities no later than 15 working days after the MRA receives notification from both the program provider and the applicant or LAR that the program provider has been selected by the applicant or LAR. As proposed, the provision permitted an MRA 30 calendar days to accomplish the activities. The department will be monitoring the new enrollment process once it is implemented, to ensure that delays in enrollments are addressed. The department believes that these changes will alleviate the issues raised by the commenters.

A commenter stated that not allowing program providers in the community to directly enroll individuals who are moving from a state school or state center effectively makes the individuals second class citizens and violates the equal protection clause of the Social Security Act and the United States Constitution. The commenter further stated that the provision sets up a third class of citizens, those individuals who have never received ICF/MR Program services. The commenter said that these individuals will be further limited from ICF/MR Program participation not only by the admissions standards of a specific facility but by the standards imposed by the local MRA. The department responds that recently adopted rules concerning continuity of services (Chapter 412, Subchapter F) govern the process under which an individual leaving a state school or state center is enrolled in a community-based ICF/MR facility. The rules specifically require the involvement of the MRA in this process. The department also states that requiring the MRA to process the enrollment of an individual who has never received ICF/MR Program services before is intended to ensure that the individual is informed of all available choices and assisted in accessing the most appropriate services and supports. The department believes this protects rather than denies the rights of the individual. Furthermore, an MRA is not authorized to impose standards for admission to any facility.

Eleven commenters challenged the requirement in §419.244(a) that only an MRA may request enrollment of an applicant in the ICF/MR Program. The commenters stated that MRAs do not have sufficient staff to perform this additional function efficiently and the enrollments will take longer, with the result that program providers will experience prolonged vacancies and economic hardship. The commenters further stated that individuals seeking ICF/MR Program services and their families will experience undue hardships when they are not able to access services promptly. The commenters stated that private program providers have been efficiently filling their vacancies under the current process and recommended that it be continued. The department responds that MRAs have been kept informed of the department's intent to have MRAs assume these responsibilities as the single point of entry for ICF/MR Program services, and have been preparing for this additional responsibility. In addition, the department has reviewed the recent history of new admissions to community-based ICFs/MR and does not believe that the volume of new admissions will cause problems. After consultation with representative MRAs, the department has revised §419.244(e) to specify that an MRA must accomplish enrollment activities no later than 15 working days after the MRA receives notification from both the program provider and the applicant or LAR that the program provider has been selected by the applicant or LAR. The department will be monitoring the new enrollment process once it is implemented, to ensure that delays in enrollments are addressed.

Eight commenters challenged §419.244(e), which they characterized as permitting an MRA 30 days in which to initiate the enrollment process for those individuals that subsection (a) requires that only the MRA can request enrollment. A commenter stated that §419.244(e) will result in smaller program providers being eliminated from the ICF/MR program and, therefore, reducing choice for individuals and their families. The department responds that the provision requires the MRA to "initiate, monitor, and support the processes" necessary to establish Medicaid eligibility, obtain an ICAP score for the applicant, and request an LOC determination and an LON. The department has changed the time period to "no later than 15 working days" after the MRA is notified by both the program provider and the applicant or applicant's LAR that the program provider has been selected by the applicant or LAR.

Five commenters stated that the department should not be implementing a requirement that only an MRA may request the enrollment of a new applicant at a time when the waiting list for services has more than 13,000 individuals. The department responds that the waiting list referenced by the commenters is for waiver program services and not for ICF/MR Program services and, therefore, will not be impacted by this requirement. The department also notes that the results of a sample survey of individuals on the department's waiting list conducted in July and August 2000 indicates that 32% (262 of the 811 respondents) are interested in an in out-of-home placement, and of those 262 only 15% (39) indicated a preference for a five-bed or larger setting. The department concludes that the waiver program waiting list (which stood at 13,726 names in May 2000 when the sample survey was developed) does not include a large number individuals who want ICF/MR Program services.

One commenter stated that providers have been informed during focus groups that the intent of this rule is to ensure that all individuals are informed of their community living options and as a utilization review function. The commenter stated that program providers already are performing the Community Living Options assessments. The commenter questioned why the utilization review function couldn't be performed by the program provider and the department's utilization review department during the first thirty days of admission. The department responds that the Community Living Options assessments as required by §419.223 has no bearing on the notifications that must be provided to applicants. THSC, §533.038 requires that the department provide an oral and written explanation to applicants seeking residential services of the services and supports for which the applicant may be eligible. The explanation must address ICF/MR Program services -- both state MR facilities and community-based facilities -- as well as waiver program services and other community-based services and supports that may meet the individual's needs. In Chapter 415, Subchapter D, concerning diagnostic eligibility for services and supports -- mental retardation priority population and related conditions, the department has delegated the responsibility for providing this explanation to MRAs. The utilization review function at enrollment is not affected by this rule.

Seven commenters stated that because some MRAs are also providers of ICF/MR Program services the requirement in §419.244(c) that only an MRA is permitted to enroll an individual in the ICF/MR Program in most situations creates a conflict of interest, i.e., the authority which facilitates the choice of program providers and applicant enrollment also being a program provider. The commenters expressed doubts that MRAs can serve simultaneously as impartial facilitators of choice and applicant enrollment while also operating as a service provider. The department responds that most MRAs that operate ICF/MR services have established distinctly separate divisions to handle the authority and provider functions, thus reducing the potential for a conflict of interest. The department explains that the provisions in §419.244 implement the Access to Services workgroup recommendations that MRAs should serve as the single point of access to publicly funded mental retardation services, including ICF/MR Program services. In addition, MRA activities directed under the provisions of this section occur only after an applicant or the LAR decide to accept services offered by a specific program provider. In the performance of its responsibilities as a local authority, an MRA is obligated through the performance contract requirements to ensure its process for facilitating the choice of services and providers is objective and fairly informs the applicant and LAR of all available choices.

Three commenters stated that the term "reasonable promptness" is used in §419.249 but is not defined anywhere in the proposal. The commenters stated that to some degree, an applicant's right to due process depends on what is meant by the term reasonable promptness, and requested that the term be defined in §419.203, concerning definitions. The department responds that "reasonable promptness" is referenced but not defined in the federal regulations regarding fair hearings at 42 CFR §431.220(a)(1). Because what "reasonable promptness" means will depend on the circumstances of each case, the department does not believe it is helpful to limit its meaning by defining it in the rules. If an applicant believes that a request for services has not been acted upon in a timely manner, the applicant may a request a fair hearing and the hearing officer can make a determination about whether the reasonable promptness standard has been met.

The Texas Department of Mental Health and Mental Retardation (department) adopts new §419.212, concerning non-licensed providers meeting licensure standards, of Chapter 419, Subchapter E, concerning ICF/MR programs, is adopted without changes to the text as proposed in the March 30, 2001, issue of the Texas Register (26 TexReg 2503). New §419.273, concerning administrative hearings is adopted with changes.

New §419.212 requires those program providers that are exempt from being licensed by the Texas Department of Human Services (TDHS) to comply with certain TDHS rules. New §419.273 describes the circumstances under which a program provider may request an administrative hearing. In addition, the section provides that program providers may request a hearing regarding a disputed level of need (LON) assignment only if reconsideration was requested by the program provider in accordance with department rule.

The new sections are part of a comprehensive review, revision, and reorganization of the department's ICF/MR Program rules in Chapter 406. As the sections in existing Chapter 406 are reviewed, the subject matter is incorporated into new sections in Chapter 419, Subchapter E. The first new sections concerning general requirements and personal funds were adopted in late 1999. In December 2000, the department adopted additional new sections concerning provider enrollment in Division 2, provider service requirements in Division 4, and provider agreement sanctions in Division 7. The comprehensive review, revision, and reorganization of the ICF/MR Program rules is being conducted in conjunction with the review of rules required by Texas Government Code, §2001.039.

Section 419.273 is revised upon adoption to permit a program provider to request and receive an administrative hearing to dispute the department's denial of a requested LON assignment if the program provider requested reconsideration of the denial in accordance with department rule.

A hearing to accept public comment was held on April 17, 2001, in Austin. No testimony was presented. Written comments were received from: the department's Mental Retardation Public Advisory Council (MRPAC), the Private Provider's Association of Texas (PPAT) and six private providers, including Bethesda Lutheran Homes and Services, Inc., Cypress; EduCare Community Living, Denton; Rock House, Inc., Stephenville; Southern Concepts, Inc., Granbury; Vita-Living, Inc., Houston; and Volunteers of America, Arlington.

Seven commenters requested that §419.273(b) be revised to permit program providers to request and receive an administrative hearing for a dispute regarding an LON that does not involve recoupment of payments made to the program provider. One commenter stated that the department was attempting to reduce its costs by eliminating the possibility that an independent review may disagree with the findings of department staff. The commenter further stated that private providers of ICF/MR program services fear that as funding for the program tightens, fiscal realities will drive the department's decisions about LONs rather than the identification of the true needs of the consumer. A second commenter stated that an independent reviewer in the form of an administrative law judge is an essential element to fairness, otherwise written documentation and budgetary shortfalls will be the only determining factors in setting a "fair" LON. A third commenter stated that having a disputed LON reviewed by an administrative law judge is "as close as it gets" to having the dispute reviewed by an impartial, outside party. A fourth commenter stated that previous department rules permitted a program provider to request an administrative hearing to dispute the department's denial of an LON, and that no compelling reason exists to eliminate this provision. The commenter stated that while very few disputes about LONs have resulted in an administrative hearing, the hearing is a critical step for the program provider in securing a "pervasive plus" LON (LON 9). The commenter stated that because a program provider must have additional staff in place to deal with an individual's extremely dangerous behavior before applying for an LON 9, few providers will be willing to take individuals with behaviors that require an LON 9 without the assurance that they can request an administrative hearing if the department should deny the request. The commenter stated that program providers are likely to discharge those individuals who require an LON 9. The commenter stated that the department's own Mental Retardation Planning and Advisory Committee (MRPAC) has recommended that the right of a program provider to request an administrative hearing to dispute a denied LON be reinstated. A fifth commenter stated that administrative hearings about disputed LONs are part of due process and that program providers should be able to request a hearing to ensure a fair and equitable process for all. The commenter stated that having an appropriate LON for an individual ultimately affects the ability of a program provider to provide the necessary care to that individual. The commenter stated that several checks and balances are in place to ensure that appropriated funds are protected by the LON assignment process, therefore the department should ensure that there are means for protecting the individual's and provider's rights in determining LON. The department agrees and has revised §419.273(b) to continue to allow program providers to request an administrative hearing regarding a disputed LON if reconsideration is requested in accordance with department rule.

The Texas Department of Mental Health and Mental Retardation (department) adopts the repeals of §419.223, concerning discharge from a facility; §419.262, concerning auditing; and §419.299, concerning references, without changes to the text as proposed in the March 30, 2001, issue of the Texas Register (26 TexReg 2504).

The provisions of repealed §419.223 are adopted with clarifying revisions in new §419.227, concerning discharge from a facility, elsewhere in this issue of the Texas Register . The repeal permits the department to organize the new sections within Division 4 of proposed Chapter 419, Subchapter E, concerning ICF/MR programs, in a more logical fashion. The provisions of repealed §419.262 are incorporated along with other auditing provisions in new §419.269, concerning audits, which is adopted elsewhere in this issue of the Texas Register . The listing of references in repealed §419.299 are augmented by a much longer listing of references from the proposed sections in proposed §419.299, concerning references, which is adopted elsewhere in this issue of the Texas Register .

No comments were received concerning the repeals as proposed.