Part 1.
TEXAS DEPARTMENT OF HUMAN SERVICES
Chapter 7.
REFUGEE CASH ASSISTANCE PROGRAM
The Texas Department of Human Services (DHS) adopts amendments to §§7.201,
7.204, 7.211, 7.212, 7.301, 7.305, 7.306, 7.307, 7.401, 7.403, 7.405, 7.502,
7.601, 7.602, and 7.603 ; repeals of §§7.304, 7.402, and 7.501;
and new §§7.304, 7.402, and 7.404 published in the March 23, 2001
issue of the
Texas Register
(26 TexReg 2326).
The amendments, repeals, and new sections are adopted without changes and
will not be republished.
The justification for the amendments, repeals, and new sections is to update
obsolete language and adhere to federal regulations that were effective in
April and June 2000. The updates allow easier access to basic services for
the refugee population.
The department received no comments regarding adoption of the amendment.
Subchapter B. ELIGIBILITY CRITERIA
40 TAC §§7.201, 7.204, 7.211, 7.212
The amendments are adopted under the Human Resources Code,
Title 2, Chapter 31, which authorizes the department to administer financial
assistance programs.
The amendments implement the Human Resources Code, §§31.001-
31.0325.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on May 23, 2001.
TRD-200102885
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Effective date: July 1, 2001
Proposal publication date: March 23, 2001
For further information, please call: (512) 438-3108
40 TAC §§7.301, 7.304 - 7.307
The new section and amendments are adopted under the Human
Resources Code, Title 2, Chapter 31, which authorizes the department to administer
financial assistance programs.
The new section and amendments implement the Human Resources Code, §§31.001-31.0325.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on May 23, 2001.
TRD-200102886
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Effective date: July 1, 2001
Proposal publication date: March 23, 2001
For further information, please call: (512) 438-3108
40 TAC §7.304
The repeal is adopted under the Human Resources Code, Title
2, Chapter 31, which authorizes the department to administer financial assistance
programs.
The repeal implements the Human Resources Code, §§31.001- 31.0325.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on May 23, 2001.
TRD-200102887
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Effective date: July 1, 2001
Proposal publication date: March 23, 2001
For further information, please call: (512) 438-3108
40 TAC §§7.401 - 7.405
The new sections and amendments are adopted under the Human
Resources Code, Title 2, Chapter 31, which authorizes the department to administer
financial assistance programs.
The new sections and amendments implement the Human Resources Code, §§31.001-31.0325.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on May 23, 2001.
TRD-200102888
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Effective date: July 1, 2001
Proposal publication date: March 23, 2001
For further information, please call: (512) 438-3108
40 TAC §7.402
The repeal is adopted under the Human Resources Code, Title
2, Chapter 31, which authorizes the department to administer financial assistance
programs.
The repeal implements the Human Resources Code, §§31.001- 31.0325.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on May 23, 2001.
TRD-200102889
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Effective date: July 1, 2001
Proposal publication date: March 23, 2001
For further information, please call: (512) 438-3108
40 TAC §7.501
The repeal is adopted under the Human Resources Code, Title
2, Chapter 31, which authorizes the department to administer financial assistance
programs.
The repeal implements the Human Resources Code, §§31.001- 31.0325.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on May 23, 2001.
TRD-200102890
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Effective date: July 1, 2001
Proposal publication date: March 23, 2001
For further information, please call: (512) 438-3108
40 TAC §7.502
The amendment is adopted under the Human Resources Code, Title
2, Chapter 31, which authorizes the department to administer financial assistance
programs.
The amendment implements the Human Resources Code, §§31.001-
31.0325.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on May 23, 2001.
TRD-200102891
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Effective date: July 1, 2001
Proposal publication date: March 23, 2001
For further information, please call: (512) 438-3108
40 TAC §§7.601 - 7.603
The amendments are adopted under the Human Resources Code,
Title 2, Chapter 31, which authorizes the department to administer financial
assistance programs.
The amendments implement the Human Resources Code, §§31.001-
31.0325.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on May 23, 2001.
TRD-200102892
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Effective date: July 1, 2001
Proposal publication date: March 23, 2001
For further information, please call: (512) 438-3108
40 TAC §§41.101, 41.103, 41.105
The Texas Department of Human Services (DHS) adopts new §41.101,
in new Chapter 41 without changes to the proposed text published in the March
9, 2001, issue of the
Texas Register
(26 TexReg
2011) and will not be republished. New §41.103 and §41.105 are adopted
with changes to the proposed text and will be republished.
The Vendor Fiscal Intermediary (VFI) model was piloted in DHS's Client
Managed Attendant Services program and the Personal Attendant Services program
of the Texas Rehabilitation Commission (TRC) under House Bill 2084 of the
75th Legislature. Justification for these new sections is to expand the model
to other CCAD programs under Senate Bill 1586 of the 76th Legislature, which
directs the Health and Human Services Commission (HHSC) to expand this model
to other HHSC community programs.
The department received comments from the Texas Association for Home Care.
A summary of the comments and the department's responses follows.
Comment: Under proposed §41.103(2), which "program requirements" are
the VFI going to be expected to train the customers on?
Response: The VFI will be expected to train the customers on VFI requirements
as specified in proposed §41.103 and §41.105.
Comment: Under proposed §41.103(3), the VFI should only be involved
in the administrative aspects of payroll, taxes, etc., and should not be responsible
for training the consumer in duties of the employer related to evaluation
of the performance and knowledge of job duties of employees, and we would
recommend that portion be deleted from the rule.
Response: DHS concurs with the comment and will change the proposed language
for clarity.
Comment: Under proposed §41.103(4)(D), what liability coverage options
are VFI going to be expected to provide the consumer information on when they
do not provide workers' compensation?
Response: The VFI is only required to provide information regarding liability
compensation coverage and to provide assistance in payment arrangements if
the consumer requests it. DHS concurs with the comment and will change the
proposed language for clarity.
Comment: Under proposed §41.103(4)(K), the payroll checks should be
distributed according to the VFI's (not the consumer's) check distribution
policy, but at least twice a month.
Response: DHS concurs with the comment and is deleting the word "consumer"
for clarity.
Comment: Under proposed §41.103(5), licensed home and community support
services agencies, which could potentially act as the VFIs, only perform checks
on their own potential employees according to Chapter 250 of the Health and
Safety Code. Since the attendant under the VFI model is not an employee of
the VFI, how can the VFI perform the check?
Response: Any individual can perform a criminal history check. When the
VFI performs this function, they do so at the direction of the consumer and
not under Chapter 250 of the Health and Safety Code.
Comment: Under proposed §41.103(8), it is not clear who the "contractor"
is. Does this refer to the state agency or VFI? Is a copy of the authorization
given to the VFI? We would suggest "not to exceed the authorization given
to the VFI by DHS."
Response: DHS concurs with the comment and will change the words "the contractor"
to "DHS."
Comment: Under proposed §41.105(11), does the sentence, "The receipt
must be marked paid." mean that the client has to pay first out-of-pocket
rather than the VFI paying the vendor?
Response: The proposed section provides that when the consumer has purchased
an item, the consumer must provide a receipt for that purchase to be reimbursed,
or the consumer can submit an invoice and have the provider pay the vendor
directly.
Comment: Under proposed §41.105(12), who ultimately makes the decision
that services should be discontinued due to the consumer's inability or refusal
to comply with responsibilities? What if the VFI and DHS disagree as to whether
the client can use the VFI model again? Can the VFI decline clients who have
refused to comply in the past?
Response: DHS concurs with the comment and will change the proposed language
from "non-VFI" to "agency" for clarity. Proposed §41.105(16) specifies
that DHS must concur with the VFI decision, and at that point, the consumer
has a right to appeal. If DHS doe not concur with the decision to terminate
the VFI model, termination does not occur.
Comment: Under proposed §41.104(13), the second sentence should read,
"The consumer is the employer of record and retains control over the hiring,
management, and firing of an individual providing personal assistance services"
in order to be consistent with the definition under proposed §41.104(4).
Response: DHS concurs with the comment and will change the language as
noted.
Comment: It is not clear in these rules whether a licensed home and community
care support services agency that is providing back-up personal assistance
can bill the VFI directly, or if the HCSSA must send a bill to the client,
who then must send it to the VFI.
Response: The back-up personal assistance is one of the spending decisions
that can be made by the consumer under proposed §41.105(6). The consumer
is billed and the invoice may be sent to the consumer or directly to the VFI
depending on the consumer's arrangements with the HCSSA.
The new chapter and sections are adopted under the Human Resources
Code, Title 2, Chapters 22 and 32, which authorizes the department to administer
public and medical assistance programs and under Texas Government Code §531.021,
which provides the Health and Human Services Commission with the authority
to administer federal medical assistance funds and Texas Government Code §531.051,
which covers the voucher program for payment of certain services for persons
with disabilities.
The new sections implement the Human Resources Code, §§22.001
- 22.030 and §§32.001 - 32.042.
§41.103.Generic Contractor Responsibilities under the Vendor Fiscal Intermediary (VFI) Model.
This rule applies to all Community Care for the Aged and Disabled (CCAD)
and Medicaid Programs that offer the VFI model of payment, unless stated differently
in program rules. Contractors for any VFI model within Texas Department of
Human Services (DHS) CCAD programs must:
(1)
contract with DHS to handle payroll, prepare and file tax-related
forms and reports for Workers' Compensation, state and federal unemployment,
Medicare, and Federal Insurance Contributions Act (FICA), and pay for other
approved related expenses;
(2)
train the consumer in VFI program requirements and any
other legal requirements, such as the Occupational Safety and Health Act;
(3)
provide the consumer with information, orientation, and
training, as needed, concerning fiscal and payroll responsibilities and obligations
as employers of personal assistant(s) and;
(4)
act as the agent for the consumer for the purpose of:
(A)
registering the consumer as an employer, including providing
assistance to the consumer in completing forms required to obtain an employer
identification number (EIN) from federal agencies, state agencies, and unemployment
insurance agencies;
(B)
taking the appropriate action to file for employer agent
status with the federal and state tax authorities and successfully obtaining
agent status;
(C)
making all deposits of unemployment taxes that are withheld
according to the appropriate schedule;
(D)
assisting the consumer in acquiring workers' compensation
insurance for the consumer's personal assistant who is the consumer's employee,
if the consumer provides workers' compensation;
(E)
computing and paying federal and state employment taxes,
including federal withholding FICA (employer and employee shares), local taxes
(optional), unemployment compensation taxes, workers' compensation insurance
(if applicable), and other payments required as appropriate, within specified
timeframes;
(F)
preparing and filing income tax forms and reports within
specified timeframes;
(G)
maintaining original and file copies of all forms needed
to comply with federal, state, and local tax payment of unemployment compensation
premiums, and all other reporting requirements of employers;
(H)
remitting the required forms to the appropriate state agency
and maintaining copies of the forms in the consumer's file upon receipt of
the required completed forms from the consumer. The VFI must return copies
of all forms to the consumer for the consumer's permanent personnel records;
(I)
receiving and processing personal assistant care timesheets,
processing the payroll for the consumer's personal assistant(s) upon receipt
of the approved timesheets, preparing the payroll for the consumer's personal
assistant(s), performing appropriate income tax, FICA, workers' compensation
(if applicable), and other withholding according to federal and state regulations;
(J)
preparing payroll for the consumer's personal assistant(s)
according to approved time sheets after making appropriate deductions;
(K)
distributing payroll checks to the consumer's personal
assistant(s) according to the VFI's check distribution policy. Distribution
must be at least twice a month;
(L)
providing, at the consumer's request, the consumer with
regular summaries of payroll and deductions made on the consumer's behalf;
and
(M)
answering questions and distributing information to concerned
parties pertaining to the VFI's responsibilities.
(5)
at the request of the consumer, conduct checks of criminal
conviction of personal assistants directly from the Texas Department of Public
Safety (DPS) Conviction Data base website and provide the history of convictions
to the consumer. If the consumer prefers to request the check from DPS, or
to require the personal assistant to obtain the information from DPS, this
task does not need to be performed by the VFI. The consumer cannot employ
the personal assistant until after the criminal history check is obtained.
(A)
The VFI must also document that the consumer was informed
of the criminal history results or that the consumer chose to obtain the criminal
history information themselves or through the personal assistant rather than
through the VFI. If there is a criminal record that prevents employment according
to state law, the participant cannot hire the prospective personal assistant.
(B)
If there is a criminal history result that does not prevent
employment by Chapter 250 of the Health and Safety Code, the VFI must document
that the consumer was informed of the result. In this case, the VFI must document
that the consumer was informed of the criminal history results and that the
consumer prefers to hire an employee with a criminal history (when this is
not prevented by Chapter 250 of the Health and Safety Code);
(6)
keep a record of expenses paid, related to personal assistant
services.
(7)
based on each personal assistant's time sheets and other
documentation, pay for each of the consumer's costs incurred relating to personal
assistant services, such as substitute (back-up) personal assistants and health
insurance, not to exceed the authorization given by the contractor. Invoice
payment must be made within 30 working days of the VFI's receipt of the invoice;
(8)
pay costs incurred relating to personal assistance services,
such as recruitment (including advertisement, travel, or telephone calls),
and provision of substitute (backup) personal assistants, not to exceed the
authorization given by DHS. Payment to the consumer must be made within 30
working days of the VFI receiving the receipt from the consumer;
(9)
serve as the consumer's fiscal intermediary for unexpended
funds within the fiscal year;
(10)
maintain record keeping of the reimbursement received,
payroll disbursed, and consumer account balances;
(11)
comply with all state and federal rules, laws, and regulations;
and
(12)
retain an amount of the unit rate for personal assistant
services approved by DHS as an administrative payment.
§41.105.Generic Consumer Responsibilities under the Vendor Fiscal Intermediary Model.
Consumers choosing the vendor fiscal intermediary (VFI) model within
any Texas Department of Human Services (DHS) Community Care for the Aged and
Disabled (CCAD) program must:
(1)
be capable of performing all employer tasks that the VFI
model requires, or appoint a designated person to perform these employer tasks
and participate in the training offered by the VFI as specified in §41.103(2)
of this title (relating to generic contractor responsibilities under the vendor
fiscal intermediary (VFI) model).
(2)
appoint the VFI as the consumer's fiscal and payroll agent;
(3)
request criminal history checks of personal assistant(s),
either through the VFI, personal assistant, or directly from the Texas Department
of Public Safety Conviction Data base website and consider this information
in determining whether to hire the personal assistant(s) as per Chapter 250
of the Health and Safety Code. An individual cannot be hired as a personal
assistant until the criminal history check is obtained;
(4)
provide substitute (backup) personal assistant(s);
(5)
resolve any employer/employee-related problems or disagreements
directly with his personal assistant(s);
(6)
make payroll spending decisions pertaining to provisions
of personal assistant services and wages and any personal assistant employment-related
costs within the consumer's authorized individual service plan, including:
(A)
using the approved budget to cover related personal assistant
employment expenses incurred by the consumer, such as recruitment, requesting
a criminal history check or an open records check (which is more in-depth
than a criminal check) of a potential employee, and provision of substitute
(backup) personal assistants;
(B)
providing the personal assistant with one or more of the
optional benefits selected from the following list: increased wages, paid
vacation, health insurance, workers' compensation, work-related travel expenses,
and bonus, holiday, overtime, and sick pay. If the consumer elects not to
provide workers' compensation insurance coverage for the personal assistant,
the consumer must disclose this election to the personal assistant by having
the personal assistant sign a written notice that workers' compensation will
not be provided;
(C)
purchasing more hours of personal assistant services by
paying a decreased rate per hour when the consumer's services are at the maximum
allowed by the program as long as the total amount does not exceed the authorized
service plan amount for the category of service and the hours are used for
the purpose of the program; and
(D)
purchasing other authorized services related to personal
assistant services, provided the services are covered by the consumer's budget
plan developed by the VFI in conjunction with the consumer. The VFI must not
pay for services excluded from the service plan, non-allowable costs according
to DHS rule, or for services that exceed the service plan.
(7)
not discriminate against personal assistants or applicants
based on race, creed, color, national origin, sex, age, disability, or sexual
orientation;
(8)
perform all other employer tasks except for employer-related
administrative functions specifically assumed by the VFI;
(9)
notify the VFI of all personal assistant enrollments, substitutions,
dismissals, and the reasons therefore;
(10)
specify the tasks the personal assistant is to perform
for the consumer, the schedule the personal assistant will work for the consumer,
the hourly rate (which must be at least the minimum wage level) the consumer
will pay the personal assistant, timeframes (at least twice a month) the VFI
will pay the personal assistant, and benefits the personal assistant will
receive;
(11)
submit to the VFI receipts or invoices for personal assistance
services related costs as specified in paragraph (6)(D) of this section. The
consumer cannot receive reimbursement for those services lacking copies of
receipts. The copy of the receipt or invoice must be legible, verify how purchase
of an allowable service pertains to the personal assistant employment-related
cost, and not be dated prior to the date the individual was certified eligible
for the CCAD program or prior to the date the VFI option was chosen. Additionally,
the copy of the receipt or invoice must include specifications of service
purchased, date service was purchased, and the vendor's name and identifying
information. The receipt must be marked paid. If the consumer does not provide
required invoices, the VFI must not make payments;
(12)
accept services through a non-vendor fiscal intermediary
model for three months if the consumer discontinues services through the VFI
model. If services are discontinued due to consumer inability or refusal to
comply with responsibilities, a VFI and DHS representative or designee must
review consumer's plan for correction of previous deficiencies before re-initiation
of the VFI model;
(13)
assume liability. Personal assistants of consumers participating
in the VFI model are considered employees of the consumer. The consumer is
the employer of record and retains control over the hiring, management, and
firing of an individual providing personal assistance services. Personal assistants
are not employees of the VFI or DHS, and the VFI and DHS are not responsible
or liable for any negligent acts or omissions by the personal assistant or
the employer;
(14)
assume all disability related training for the personal
assistant including nature of the disability, type of care needed, steps in
carrying out procedures, and safety precautions;
(15)
perform annual evaluations and provide ongoing feedback
regarding job performance to all personal assistants;
(16)
change to the agency model on VFI's recommendation, if
there is a documented, substantiated pattern of consumer's refusal or inability
to comply with the responsibilities listed in paragraphs (1)-(15) of this
section. With concurrence from the authorized DHS representative, this recommendation
will be enacted immediately. A request for a hearing to appeal the decision
may be made in accordance with program guidelines; and
(17)
consumer complaints regarding actions of the VFI or the
personal assistant relating to abuse, neglect, and exploitation, will be addressed
to the authorized Texas Department of Protective and Regulatory Services (TDPRS)
representative.
This agency hereby certifies that the adoption has been
reviewed by legal counsel and found to be a valid exercise of the agency's
legal authority.
Filed with the Office of
the Secretary of State on May 21, 2001.
TRD-200102842
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Effective date: June 10, 2001
Proposal publication date: March 9, 2001
For further information, please call: (512) 438-3108
Chapter 338.
EXEMPTED RESIDENTIAL REAL ESTATE-RELATED TRANSACTIONS
Subchapter C. ELIGIBILITY DETERMINATION
Subchapter D. ELIGIBILITY FOR OTHER PROGRAMS
Subchapter E. CLIENT REPORTING REQUIREMENTS
Subchapter F. PENALTY PROVISIONS
Chapter 41.
VENDOR FISCAL INTERMEDIARY PAYMENTS
Part 11.
TEXAS COMMISSION ON HUMAN RIGHTS