TITLE 40.SOCIAL SERVICES AND ASSISTANCE

Part 1. TEXAS DEPARTMENT OF HUMAN SERVICES

Chapter 3. TEXAS WORKS

Subchapter V. MEDICAID ELIGIBILITY

40 TAC §§3.2204, 3.2205, 3.2209

The Texas Department of Human Services (DHS) proposes to amend §3.2204, concerning type program 07 Medicaid, §3.2205, concerning type program 37 Medicaid, and §3.2209, concerning type program 29 Medicaid, in its Texas Works chapter. The purpose of the amendments is to apply transitional Medicaid policy uniformly throughout the state of Texas. Current rules allow eligible households to receive an additional 12 months of Medicaid if the household is denied benefits due to new or increased earnings or exhausting their state limit for receipt of Temporary Assistance for Needy Families (TANF) cash assistance. Households are eligible as long as their average monthly income, minus child care expenses, does not exceed 185% of the Federal Poverty Income Limit (FPIL). Exempt CHOICES households that volunteer for CHOICES are eligible for 18 months of transitional Medicaid. Households in control groups are required to report income quarterly to DHS. The proposed rule changes limit transitional eligibility to 12 months and requires all transitional Medicaid recipients to report income and household changes in the fourth, seventh, and tenth month and will result in the loss of Medicaid eligibility if income exceeds the stated limits.

James R. Hine, Commissioner, has determined that for the first five-year period the proposed sections will be in effect there will be fiscal implications for state government as a result of enforcing or administering the sections.

The effect on state government for the first five-year period the sections will be in effect is an estimated additional cost of $84,547 in fiscal year (FY) 2002; $8,877 in FY 2003; $9,684 in FY 2004; $9,684 in FY 2005; and $9,684 in FY 2006.

In addition, the effect on state government for the first five-year period the sections will be in effect is an estimated reduction in cost of $3,637,715 in fiscal year (FY) 2002; $3,881,203 in FY 2003; $4,127,717 in FY 2004; $4,401,450 in FY 2005; and $4,709,005 in FY 2006.

Mr. Hine 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 adoption of the proposed rules will be the uniform application of transitional Medicaid policy throughout the state. Households will report changes in income and household composition only when it will affect their eligibility. There will be no effect on small or micro businesses as a result of enforcing or administering the sections because the proposed amendments to Medicaid are being made in order to comply with federal law. There is no anticipated economic cost to persons who are required to comply with the proposed sections. There will be no anticipated effect on local employment in geographic areas affected by these sections.

Questions about the content of this proposal may be directed to Eric McDaniel at (512) 438-2909 in DHS's Texas Works section. Written comments on the proposal may be submitted to Supervisor, Rules and Handbooks Unit-067, 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 amendments are proposed under the Human Resources Code, Title 2, Chapters 22, 31, and 32, which authorizes the department to administer public and medical assistance programs; Texas Government Code §531.021, which provides the Health and Human Services Commission with the authority to administer federal medical assistance funds; and under Sections 1931, 1925, and 1115(a) of the Social Security Act.

The amendments implement the Human Resources Code, §§22.001-22.030, §§31.001-31.0325, and §§32.001-32.042.

§3.2204.Type Program 07 Medicaid.

[ (a) For Temporary Assistance for Needy Families (TANF) households in the State Welfare Reform Control Group as described in §3.6004 of this title (relating to Applicability of Aid to Families with Dependent Children (AFDC) Policies Resulting from Human Resources Code §31.0031, Dependent Child's Income; Human Resources Code §31.012, Mandatory Work or Participation in Employment Activities Through the Job Opportunities and Basic Skills Training Program; Human Resources Code §31.014, Two-Parent Families; and Human Resources Code §31.032, Investigation and Determination of Eligibility) the following apply: ]

[(1)] For households that [ Households who ] receive Temporary Assistance for Needy Families ( TANF ) or Medicaid only under Section 1931 of the Social Security Act and are denied because of new or increased earnings and who [ or because of increased work hours of the principle wage earner parent on a TANF Unemployed Parent case ] are eligible for 12 months post-Medicaid for reasons [ , as ] stipulated under Section 1925 of [ in ] the Social Security Act[ , 1925. ] , one or more of the circumstances specified in paragraphs (1)-(2) apply:

(1) [ (2) ] Clients receiving 12 months post-Medicaid [ post Medicaid ] must report changes [ submit status reports ] in the fourth, seventh, and tenth months. [ Clients who submit incomplete reports or who fail to submit a report without good cause will be denied benefits. ]

(2) [ (3) ] Clients will be denied benefits if the household reports [ information on the status report they submit indicates one or more of ] the following changes :

(A) No eligible child is in the home.

(B) On the seventh or tenth month report the [ The ] caretaker relative has no earnings in one of the previous three months[ ; however, a report of no earnings for a month on the status report returned in the fourth month does not cause ineligibility ].

(C) The average monthly income, less child care costs, exceeds 185% of the federal poverty level on the seventh or tenth month report . [ This results in denial in the seventh and tenth months. ]

[ (b) All other households who receive TANF or Medicaid only under Section 1931 of the Social Security Act and are denied because of new or increased earnings are eligible for 12 months post-Medicaid for reasons stipulated in the Social Security Act, 1925, as long as an eligible child resides in the home, except for those households eligible for 18 months post-Medicaid. Households are eligible for 18 months post-Medicaid in this situation if the caretaker or second parent is exempt from Choices participation and voluntarily participates in Choices as specified in Human Resources Code §31.012.]

§3.2205.Type Program 37 Medicaid.

[ (a) For Aid to Families with Dependent Children (AFDC) households in the State Welfare Reform Control Group as described in §3.6004 of this title (relating to Applicability of Aid to Families with Dependent Children (AFDC) Policies Resulting from Human Resources Code §31.0031, Dependent Child's Income; Human Resources Code §31.012, Mandatory Work or Participation in Employment Activities Through the Job Opportunities and Basic Skills Training Program; Human Resources Code §31.014, Two-Parent Families; and Human Resources Code §31.032, Investigation and Determination of Eligibility. ] For households that receive Temporary Assistance for Needy Families (TANF) or Medicaid only under Section 1931 of the Social Security Act and are denied because of new or increased earnings and who are eligible for 12 months post-Medicaid for reasons stipulated under Section 1925 of the Social Security Act, one or more of the circumstances specified in paragraphs (1)-(2) apply:

[ (1) Clients who are denied AFDC because a caretaker, second parent, or disqualified legal parent is no longer eligible for the earned income disregard are eligible for up to 12 months post Medicaid as stipulated in the Social Security Act, 1925.]

(1) [ (2) ] Clients receiving 12 months post-Medicaid [ post Medicaid ] must report changes [ submit status reports ] in the fourth, seventh, and tenth months. [ Clients who submit incomplete reports or who fail to submit a report without good cause will be denied benefits. ]

(2) [ (3) ] Clients will be denied benefits if the household reports [ information on the status report they submit indicates one or more of ] the following changes :

(A) No eligible child is in the home.

(B) On the seventh or tenth month report the [ The ] caretaker relative has no earnings in one of the previous three months[ ; however, a report of no earnings for a month on the status report returned in the fourth month does not cause ineligibility ].

(C) The average monthly income, less child care costs, exceeds 185% of the federal poverty level on the seventh or tenth month report . [ This results in denial in the seventh and tenth months. ]

[ (b) All other households who receive TANF or Medicaid only under Section 1931 of the Social Security Act and are denied because of new or increased earnings are eligible for 12 months post Medicaid for reasons stipulated in the Social Security Act, 1925, as long as an eligible child resides in the home, except for those households eligible for 18 months post Medicaid. Households are eligible for 18 months post Medicaid in this situation if the caretaker or second parent is exempt from Choices participation and voluntarily participates in Choices as specified in Human Resources Code §31.012.]

§3.2209.Type Program 29 Medicaid.

Temporary Assistance for Needy Families (TANF) [ Aid to Families with Dependent Children (AFDC) ] caretakers and second parents who are denied TANF or TANF State Program (TANF-SP) [ AFDC ] because of time-limited cash benefits described in §3.501(a)(3) of this title (relating to [ Aid to Families with Dependent Children (AFDC) and Food Stamp ] Household Determination) are eligible for Medicaid under Section 1931 of the Social Security Act, provided they meet the income and resource limits for TANF. [ 12 months post-Medicaid. AFDC caretakers and second parents who volunteer for Job Opportunities and Basic Skills Training Program (JOBS) services when they are exempt from participating because they are caring for a child under age five (under age four beginning September 1, 1997), or because they are needed in the home to care for an ill or incapacitated child, are eligible for 18 months post-Medicaid after their time-limited cash benefits are denied. ]

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 January 24, 2002.

TRD-200200363

Paul Leche

General Counsel, Legal Services

Texas Department of Human Services

Earliest possible date of adoption: March 10, 2002

For further information, please call: (512) 438-3734

Chapter 19. NURSING FACILITY REQUIREMENTS FOR LICENSURE AND MEDICAID CERTIFICATION

The Texas Department of Human Services (DHS) proposes to amend §19.101, concerning definitions, §19.401, concerning introduction, §19.403, concerning notice of rights and services, §19.1913, concerning clinical records service supervisor, and §19.2011, concerning procedures for inspection of public records; and proposes new §19.422, concerning authorized electronic monitoring, §19.910, concerning quality assurance early warning system, §19.911, concerning rapid response teams, and §19.1207, concerning prescription of psychoactive medication, in its Nursing Facility Requirements for Licensure and Medicaid Certification chapter. The purpose of the amendments and new sections is to implement Senate Bill 177, which requires nursing facilities to allow a resident, the resident's guardian, or legal representative to monitor the resident's room through the use of an electronic monitoring device. The proposal also implements Senate Bill 355, which requires nursing facility residents to give informed consent before psychoactive medication is administered. The proposed amendments to Statement of Resident Rights in §19.401 are a result of implementing Senate Bill 177 and Senate Bill 355, to add the right to informed consent to the administration of psychoactive medication and the right to conduct electronic monitoring.

The proposed quality assurance early warning system sections are in response to Senate Bill 1839. The system will identify facilities with a history of resident-care deficiencies. Quality-of- care monitors will function as consultants to evaluate best practices for nursing facilities that have difficulty delivering the expected quality of care. Rapid response teams composed of two or more quality-of-care monitors may assist in educating the facility as to best practices, per the facility's request. The purpose of these sections is to effect a better outcome for nursing home residents.

The proposal also includes technical amendments to current rules to correct references, titles, and addresses.

James R. Hine, Commissioner, has determined that for the first five-year period the proposed sections will be in effect, there will be fiscal implications for state government as a result of enforcing or administering the sections.

The effect on state government for the first five-year period the sections will be in effect is an estimated additional cost of $2,070,592 in fiscal year (FY) 2002; $2,070,592 in FY 2003; $2,070,592 in FY 2004; $2,070,592 in FY 2005; and $2,070,592 in FY 2006.

Mr. Hine 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 adoption of the proposed rules will be better care for nursing facility residents, because the rule approach will improve the quality-of-care of nursing home residents in a new manner. Quality-of-care monitors will identify high-risk facilities and educate these facilities in best practices before problems become insurmountable. The sections also will protect residents from administration of psychoactive drugs without their consent and will allow residents or their family members to monitor care in a nursing facility through audio or video electronic means, which will provide another avenue to protect residents from abuse or neglect. Technical amendments will provide correct information that will facilitate the public's use of the rules.

There will be no effect on small or micro businesses as a result of enforcing or administering the sections because the quality monitoring and rapid response team sections address department responsibilities and there are no new requirements for nursing facilities.

There will be no effect on small or micro businesses as a result of enforcing or administering the sections regarding obtaining informed consent because under existing nursing facility rules, residents should be giving informed consent before having psychoactive medications administered. This rule change provides additional guidance regarding informed consent.

There will be no effect on small or micro businesses as a result of enforcing or administering the sections regarding electronic monitoring because the rules require persons requesting electronic monitoring to absorb all costs associated with it.

There is no anticipated economic cost to persons who are required to comply with the proposed sections. There is no anticipated effect on local employment in geographic areas affected by these sections.

Questions about the content of this proposal may be directed to Susan Syler at (512) 438- 3111 or Connie Pate at (512) 438-3529 in DHS's Long-Term Care Policy section. Written comments on the proposal may be submitted to Supervisor, Rules and Handbooks Unit-056, 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.

Subchapter B. DEFINITIONS

40 TAC §19.101

The amendment is proposed under the Health and Safety Code, Chapter 242, which authorizes DHS to license and regulate convalescent and nursing homes and related institutions.

The amendment implements the Health and Safety Code, §§242.001-242.268.

§19.101.Definitions.

The following words and terms, when used in this chapter, [ shall ] have the following meanings, unless the context clearly indicates otherwise.

(1)-(12) (No change.)

(13) Authorized electronic monitoring--The placement of an electronic monitoring device in a resident's room and using the device to make tapes or recordings after making a request to the facility to allow electronic monitoring.

(14) [ (13) ] Barrier precautions--Precautions including the use of gloves, masks, gowns, resuscitation equipment, eye protectors, aprons, faceshields, and protective clothing for purposes of infection control.

(15) [ (14) ] Board--Texas Board of Human Services.

(16) [ (15) ] CARE form--The DHS Client Assessment, Review and Evaluation (CARE) form completed by Medicaid-certified nursing facilities which allows for determination of medical necessity, reimbursement rate, initial level of the Preadmission Screening and Annual Resident Review (PASARR) and the initial medical care determination and reassessment of the 1915(c) waivers.

(17) [ (16) ] Care and treatment--Services required to maximize resident independence, personal choice, participation, health, self-care, psychosocial functioning and reasonable safety, all consistent with the preferences of the resident.

(18) [ (17) ] Case mix--A method of classifying recipients based upon resource and service needs and paying nursing facilities a per diem rate according to the recipient's classification.

(19) [ (18) ] Certification--The determination by the Texas Department of Human Services (DHS) that a nursing facility meets all the requirements of the Medicaid and/or Medicare programs.

(20) [ (19) ] CFR--Code of Federal Regulations.

(21) CMS--Centers for Medicare & Medicaid Services, formerly the Health Care Financing Administration (HCFA).

(22) [ (20) ] Complaint--Any allegation received by DHS other than an incident reported by the facility. Such allegations include, but are not limited to, abuse, neglect, exploitation, or violation of state or federal standards.

(23) [ (21) ] Comprehensive assessment--An interdisciplinary description of a resident's needs and capabilities including daily life functions and significant impairments of functional capacity.

(24) [ (22) ] Comprehensive care plan--A plan of care prepared by an interdisciplinary team that includes measurable short-term and long-term objectives and timetables to meet the resident's needs developed for each resident after admission. The plan addresses at least the following needs: medical, nursing, rehabilitative, psychosocial, dietary, activity, and resident's rights. The plan includes strategies developed by the team, as described in §19.802(b)(2) of this title (relating to Comprehensive Care Plans), consistent with the physician's prescribed plan of care, to assist the resident in eliminating, managing, or alleviating health or psychosocial problems identified through assessment. Planning includes:

(A) goal setting;

(B) establishing priorities for management of care;

(C) making decisions about specific measures to be used to resolve the resident's problems; and/or

(D) assisting in the development of appropriate coping mechanisms.

(25) [ (23) ] Controlled substance--A drug, substance, or immediate precursor as defined in the Texas Controlled Substance Act, Texas Health and Safety Code, Chapter 481, and/or the Federal Controlled Substance Act of 1970, Public Law 91-513.

(26) [ (24) ] Controlling person--A person with the ability, acting alone or in concert with others, to directly or indirectly, influence, direct, or cause the direction of the management, expenditure of money, or policies of a nursing facility or other person. A controlling person does not include a person, such as an employee, lender, secured creditor, or landlord, who does not exercise any influence or control, whether formal or actual, over the operation of a facility. A controlling person includes:

(A) a management company, landlord, or other business entity that operates or contracts with others for the operation of a nursing facility;

(B) any person who is a controlling person of a management company or other business entity that operates a nursing facility or that contracts with another person for the operation of a nursing facility; and

(C) any other individual who, because of a personal, familial, or other relationship with the owner, manager, landlord, tenant, or provider of a nursing facility, is in a position of actual control or authority with respect to the nursing facility, without regard to whether the individual is formally named as an owner, manager, director, officer, provider, consultant, contractor, or employee of the facility.

(27) Covert electronic monitoring--The placement and use of an electronic monitoring device that is not open and obvious, and the facility and DHS have not been informed about the device by the resident, by a person who placed the device in the room, or by a person who uses the device.

(28) [ (25) ] Dangerous drugs--Any drug as defined in the Texas Health and Safety Code, Chapter 483.

(29) [ (26) ] Dentist--A practitioner licensed by the Texas State Dental Examiners Board.

(30) [ (27) ] Department--Texas Department of Human Services.

(31) [ (28) ] DHS--Texas Department of Human Services.

(32) [ (29) ] Dietitian--A qualified dietitian is one who is qualified based upon either:

(A) registration by the Commission on Dietetic Registration of the American Dietetic Association; or

(B) licensure, or provisional licensure, by the Texas State Board of Examiners of Dietitians. These individuals must have one year of supervisory experience in dietetic service of a health care facility.

(33) [ (30) ] Direct care by licensed nurses--Direct care consonant with the physician's planned regimen of total resident care includes:

(A) assessment of the resident's health care status;

(B) planning for the resident's care;

(C) assignment of duties to achieve the resident's care;

(D) nursing intervention; and

(E) evaluation and change of approaches as necessary.

(34) [ (31) ] Distinct part--That portion of a facility certified to participate in the Medicaid Nursing Facility program.

(35) [ (32) ] Drug (also referred to as medication)--Any of the following:

(A) Any substance recognized as a drug in the official United States Pharmacopoeia, official Homeopathic Pharmacopoeia of the United States, or official National Formulary, or any supplement to any of them;

(B) Any substance intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man;

(C) Any substance (other than food) intended to affect the structure or any function of the body of man; and

(D) Any substance intended for use as a component of any substance specified in subparagraphs (A)-(C) of this definition. It does not include devices or their components, parts, or accessories.

[ (33) Durable power of attorney for health care--The legal document which designates an agent to make treatment decisions if the individual designator becomes incapable.]

(36) Electronic monitoring device--Video surveillance cameras and audio devices installed in a resident's room, designed to acquire communications or other sounds that occur in the room. An electronic, mechanical, or other device used specifically for the nonconsensual interception of wire or electronic communication is excluded from this definition.

(37) [ (34) ] Emergency--A sudden change in a resident's condition requiring immediate medical intervention.

(38) [ (35) ] Exploitation--The illegal or improper act or process of a caretaker using the resources of an elderly or disabled person for monetary or personal benefit, profit, or gain.

(39) [ (36) ] Exposure (infections)--The direct contact of blood or other potentially infectious materials of one person with the skin or mucous membranes of another person. Other potentially infectious materials include the following human body fluids: semen, vaginal secretions, cerebrospinal fluid, peritoneal fluid, amniotic fluid, saliva in dental procedures, and body fluid that is visibly contaminated with blood, and all body fluids when it is difficult or impossible to differentiate between body fluids.

(40) [ (37) ] Facility--Unless otherwise indicated, a facility is an institution that provides organized and structured nursing care and service and is subject to licensure under Health and Safety Code, Chapter 242.

(A) For Medicaid, a facility is a nursing facility which meets the requirements of §1919(a)-(d) of the Social Security Act. A facility may not include any institution that is for the care and treatment of mental diseases except for services furnished to individuals age 65 and over and who are eligible as defined in §19.2500 of this title (relating to Preadmission Screening and Annual Resident Review (PASARR)).

(B) For Medicare and Medicaid purposes (including eligibility, coverage, certification, and payment), the "facility" is always the entity which participates in the program, whether that entity is comprised of all of, or a distinct part of, a larger institution.

(C) "Facility" is also referred to as a nursing home or nursing facility. Depending on context, these terms are used to represent the management, administrator, or other persons or groups involved in the provision of care of the resident; or to represent the physical building, which may consist of one or more floors or one or more units, or which may be a distinct part of a licensed hospital.

(41) [ (38) ] Facility nurse assessor--The licensed nurse in the nursing facility, who completes the Client Assessment, Review and Evaluation (CARE) forms.

(42) [ (39) ] Family representative--An individual appointed by the resident to represent the resident and other family members, by formal or informal arrangement.

(43) [ (40) ] Fiduciary agent--An individual who holds in trust another's monies.

(44) [ (41) ] Free choice--Unrestricted right to choose a qualified provider of services.

(45) [ (42) ] Goals--Long-term: general statements of desired outcomes. Short-term: measurable time-limited, expected results which provide the means to evaluate the resident's progress toward achieving long-term goals.

(46) [ (43) ] Governmental unit--A state or a political subdivision of the state, including a county or municipality.

(47) [ (44) ] HCFA--Health Care Financing Administration , now the Centers for Medicare & Medicaid Services (CMS) .

(48) [ (45) ] Health care provider--An individual, including a physician, or facility licensed, certified, or otherwise authorized to administer health care, in the ordinary course of business or professional practice.

(49) [ (46) ] Hearing--A contested case hearing held in accordance with the Administrative Procedure Act, Texas Government Code, Chapter 2001, and DHS's formal hearing procedures in Chapter 79 of this title (relating to Legal Services).

(50) [ (47) ] HIV--Human Immunodeficiency Virus.

(51) [ (48) ] Incident--An abnormal event, including accidents or injury to staff or residents, which are documented in facility reports. An occurrence in which a resident may have been subject to abuse, neglect, or exploitation must also be reported to DHS.

(52) [ (49) ] Infection control--A program designed to prevent the transmission of disease and infection in order to provide a safe and sanitary environment.

(53) [ (50) ] Inspection--Any on-site visit to or survey of an institution by DHS for the purpose of licensing, monitoring, complaint investigation, architectural review, or similar purpose.

(54) [ (51) ] Interdisciplinary care plan--See the definition of "comprehensive care plan."

(55) [ (52) ] IV--Intravenous.

(56) [ (53) ] Legend drug or prescription drug--Any drug that requires a written or telephonic order of a practitioner before it may be dispensed by a pharmacist, or that may be delivered to a particular resident by a practitioner in the course of the practitioner's practice.

(57) [ (54) ] Licensed health professional--A physician; physician assistant; nurse practitioner; physical, speech, or occupational therapist; pharmacist; physical or occupational therapy assistant; registered professional nurse; licensed vocational nurse; or licensed social worker.

(58) [ (55) ] Licensed nursing home (facility) administrator--A person currently licensed by the Texas Board of Nursing Facility Administrators.

(59) [ (56) ] Licensed vocational nurse (LVN)--A nurse who is currently licensed by the Board of Vocational Nurse Examiners for the State of Texas.

(60) [ (57) ] Life Safety Code (also referred to as the Code or NFPA 101)--The Code for Safety to Life from Fire in Buildings and Structures, Standard 101, of the National Fire Protection Association (NFPA).

(61) [ (58) ] Life safety features--Fire safety components required by the Life Safety Code, including, but not limited to, building construction, fire alarm systems, smoke detection systems, interior finishes, sizes and thicknesses of doors, exits, emergency electrical systems, and sprinkler systems.

(62) [ (59) ] Life support--Use of any technique, therapy, or device to assist in sustaining life. (See §19.419 of this title (relating to Directives and Medical [ Durable ] Powers of Attorney [ for Health Care ]).)

(63) [ (60) ] Local authorities--Persons, including, but not limited to, local health authority, fire marshal, and building inspector, who may be authorized by state law, county order, or municipal ordinance to perform certain inspections or certifications.

(64) [ (61) ] Local health authority--The physician appointed by the governing body of a municipality or the commissioner's court of the county to administer state and local laws relating to public health in the municipality's or county's jurisdiction as defined in Health and Safety Code, §121.021.

(65) [ (62) ] Long-term care-regulatory--A department in the long-term care division of DHS responsible for surveying nursing facilities to determine compliance with regulations for licensure and certification for Title XIX participation.

(66) [ (63) ] Manager--A person, other than a licensed nursing home administrator, having a contractual relationship to provide management services to a facility.

(67) [ (64) ] Management services--Services provided under contract between the owner of a facility and a person to provide for the operation of a facility, including administration, staffing, maintenance, or delivery of resident services. Management services do not include contracts solely for maintenance, laundry, or food service.

(68) [ (65) ] Medicaid applicant--A person who requests [ is requesting ] the determination of eligibility to become a Medicaid recipient.

(69) [ (66) ] Medicaid nursing facility vendor payment system--Electronic billing and payment system for reimbursement to nursing facilities for services provided to eligible Medicaid recipients.

(70) Medical power of attorney--The legal document which designates an agent to make treatment decisions if the individual designator becomes incapable.

(71) [ (67) ] Medicaid recipient--A person who meets the eligibility requirements of the Title XIX Medicaid program, is eligible for nursing facility services, and resides in a Medicaid- participating facility.

(72) [ (68) ] Medical director--A physician licensed by the Texas State Board of Medical Examiners, who is engaged by the nursing home to assist in and advise regarding the provision of nursing and health care.

(73) [ (69) ] Medical necessity (MN)--The determination that a recipient requires the services of licensed nurses in an institutional setting to carry out the physician's planned regimen for total care. A recipient's need for custodial care in a 24-hour institutional setting does not constitute a medical need.

(74) [ (70) ] Medical necessity assessment--The process by which the applicant's or recipient's medical condition is evaluated to determine the need for nursing facility care based upon information supplied by the nursing facility.

(75) [ (71) ] Medical-social care plan--See Interdisciplinary Comprehensive Care Plan.

(76) [ (72) ] Medically-related condition--An organic, debilitating disease or health disorder that requires services provided in a nursing facility, under the supervision of licensed nurses.

(77) [ (73) ] Medication aide--A person who holds a current permit issued under the Medication Aide Training Program as described in Chapter 95 of this title (relating to Medication Aides) and acts under the authority of a person who holds a current license under state law which authorizes the licensee to administer medication.

(78) [ (74) ] Minimum data set (MDS)--See Resident Assessment Instrument (RAI).

(79) [ (75) ] Misappropriation of funds--The taking, secretion, misapplication, deprivation, transfer, or attempted transfer to any person not entitled to receive any property, real or personal, or anything of value belonging to or under the legal control of a resident without the effective consent of the resident or other appropriate legal authority, or the taking of any action contrary to any duty imposed by federal or state law prescribing conduct relating to the custody or disposition of property of a resident.

(80) [ (76) ] Natural Death Act--Provisions of Texas Health and Safety Code, Chapter 672.

(81) [ (77) ] Neglect--A deprivation of life's necessities of food, water, or shelter, or a failure of an individual to provide services, treatment, or care to a resident which causes or could cause mental or physical injury, or harm or death to the resident.

(82) [ (78) ] NHIC--The National Heritage Insurance Corporation; the intermediary for the Texas Medicaid program.

(83) [ (79) ] Nonnursing personnel--Persons not assigned to give direct personal care to residents; including administrators, secretaries, activities directors, bookkeepers, cooks, janitors, maids, laundry workers, and yard maintenance workers.

(84) [ (80) ] Nurse aide--An individual who provides [ providing ] nursing or nursing-related services to residents in a facility under the supervision of a licensed nurse. This definition does not include an individual who is a licensed health professional, a registered dietitian, or someone who volunteers such services without pay. A nurse aide is not authorized to provide nursing and/or nursing-related services for which a license or registration is required under state law.

(85) [ (81) ] Nurse aide trainee--An individual who is attending a program teaching nurse aide skills.

(86) [ (82) ] Nurse practitioner--A registered nurse currently licensed by the Board of Nurse Examiners for the State of Texas, who is prepared for advanced nursing practice by nature of knowledge and skills obtained through a post-basic or advanced educational program of study acceptable to the Board and which meet the requirements of Rule 219.1 - Rules and Regulations Related to Professional Nurse Education, Licensure, and Practice from the Board of Nurse Examiners for the State of Texas. According to federal requirements (42 Code of Federal Regulations, §491.2) a nurse practitioner is a registered professional nurse who is currently licensed to practice in the State of Texas, who meets the state's requirements governing the qualifications of nurse practitioners, and who meets one of the following conditions:

(A) is currently certified as a primary care nurse practitioner by the American Nurses' Association or by the National Board of Pediatric Nurse Practitioners and Associates; or

(B) has satisfactorily completed a formal one-academic-year educational program that:

(i) prepares registered nurses to perform an expanded role in the delivery of primary care;

(ii) includes at least four months (in the aggregate) of classroom instruction and a component of supervised clinical practice; and

(iii) awards a degree, diploma, or certificate to persons who successfully complete the program; or

(C) has successfully completed a formal educational program (for preparing registered nurses to perform an expanded role in the delivery of primary care) that does not meet the requirements of paragraph (b)(2) of 42 CFR §491.2, and has been performing an expanded role in the delivery of primary care for a total of 12 months during the 18-month period immediately preceding July 14, 1978.

(87) [ (83) ] Nurse reviewer-- A [ The ] registered professional nurse employed by the Texas Health and Human Services Commission (HHSC) [ DHS ] to monitor the accuracy of the CARE form assessment data.

(88) [ (84) ] Nursing assessment--See definition of "comprehensive assessment" and "comprehensive care plan."

(89) [ (85) ] Nursing care--Services provided by nursing personnel which include, but are not limited to, observation; promotion and maintenance of health; prevention of illness and disability; management of health care during acute and chronic phases of illness; guidance and counseling of individuals and families; and referral to physicians, other health care providers, and community resources when appropriate.

(90) [ (86) ] Nursing facility/home--An institution that provides organized and structured nursing care and service, and is subject to licensure under Health and Safety Code, Chapter 242. The nursing facility may also be certified to participate in the Medicaid Title XIX program. Depending on context, these terms are used to represent the management, administrator, or other persons or groups involved in the provision of care to the residents; or to represent the physical building, which may consist of one or more floors or one or more units, or which may be a distinct part of a licensed hospital.

(91) [ (87) ] Nursing facility/home administrator--See the definition of "licensed nursing home (facility) administrator."

(92) [ (88) ] Nursing personnel--Persons assigned to give direct personal and nursing services to residents, including registered nurses, licensed vocational nurses, nurses aides, orderlies, and medication aides. Unlicensed personnel function under the authority of licensed personnel.

(93) [ (89) ] Objectives--See definition of "goals."

(94) [ (90) ] OBRA--Omnibus Budget Reconciliation Act of 1987, which includes provisions relating to nursing home reform, as amended.

(95) [ (91) ] Ombudsman--An advocate who is a certified representative, staff member, or volunteer, of the Office of the State Long Term Care Ombudsman, Texas Department on Aging.

(96) [ (92) ] Optometrist--An individual with the profession of examining the eyes for defects of refraction and prescribing lenses for correction who is licensed by the Texas Optometry Board.

(97) [ (93) ] PASARR--Preadmission Screening and Annual Resident Review.

(98) [ (94) ] Palliative Plan of Care--Appropriate medical and nursing care for residents with advanced and progressive diseases for whom the focus of care is controlling pain and symptoms while maintaining optimum quality of life.

(99) [ (95) ] Patient care-related electrical appliance--An electrical appliance that is intended to be used for diagnostic, therapeutic, or monitoring purposes in a patient care area, as defined in Standard 99 of the National Fire Protection Association.

(100) [ (96) ] Person--An individual, firm, partnership, corporation, association, joint stock company, limited partnership, limited liability company, or any other legal entity, including a legal successor of those entities.

(101) [ (97) ] Person with a disclosable interest--A person with a disclosable interest is any person who owns at least a 5.0% interest in any corporation, partnership, or other business entity that is required to be licensed under Health and Safety Code, Chapter 242. A person with a disclosable interest does not include a bank, savings and loan, savings bank, trust company, building and loan association, credit union, individual loan and thrift company, investment banking firm, or insurance company, unless these entities participate in the management of the facility.

(102) [ (98) ] Pharmacist--An individual, licensed by the Texas State Board of Pharmacy to practice pharmacy, who prepares and dispenses medications prescribed by a physician, dentist, or podiatrist.

(103) [ (99) ] Physical restraint--See Restraints (physical).

(104) [ (100) ] Physician--A doctor of medicine or osteopathy currently licensed by the Texas State Board of Medical Examiners.

(105) [ (101) ] Physician assistant (PA)--

(A) A graduate of a physician assistant training program who [ that ] is accredited by the Committee on Allied Health Education and Accreditation of the Council on Medical Education of the American Medical Association, or

(B) A person who has passed the examination given by the National Commission on Certification of Physician Assistants. According to federal requirements (42 CFR §491.2) a physician assistant is a person who meets the applicable state requirements governing the qualifications for assistant to primary care physicians, and who meets at least one of the following conditions:

(i) is currently certified by the National Commission on Certification of Physician Assistants to assist primary care physicians; or

(ii) has satisfactorily completed a program for preparing physician [ physician's ] assistants that:

(I) was at least one academic year in length;

(II) consisted of supervised clinical practice and at least four months (in the aggregate) of classroom instruction directed toward preparing students to deliver health care; and

(III) was accredited by the American Medical Association's Committee on Allied Health Education and Accreditation; or

(C) A person who has satisfactorily completed a formal educational program for preparing physician assistants who does not meet the requirements of paragraph (d)(2), 42 CFR §491.2, and has been assisting primary care physicians for a total of 12 months during the 18- month period immediately preceding July 14, 1978.

(106) [ (102) ] Podiatrist--A practitioner whose profession encompasses the care and treatment of feet who is licensed by the Texas State Board of Podiatry Examiners.

(107) [ (103) ] Poison--Any substance that federal or state regulations require the manufacturer to label as a poison and is to be used externally by the consumer from the original manufacturer's container. Drugs to be taken internally which contain the manufacturer's poison label, but are dispensed by a pharmacist only by or on the prescription order of a physician, are not considered a poison, unless regulations specifically require poison labeling by the pharmacist.

(108) [ (104) ] Practitioner--A physician, podiatrist, or dentist, when relating to Pharmacy Services.

(109) [ (105) ] Preadmission medical necessity determination--The determination of need for nursing facility care before the individual's admission into the nursing facility. This determination is valid until admission into a nursing facility or up to 30 days from the effective date.

(110) [ (106) ] PRN (pro re nata)--As needed.

(111) [ (107) ] Provider--The individual or legal business entity that is contractually responsible for providing Medicaid services under an agreement with DHS.

(112) [ (108) ] Psychoactive drugs--Drugs prescribed to control mood, mental status, or behavior.

(113) [ (109) ] Qualified surveyor--An employee of DHS who has completed state and federal training on the survey process and passed a federal standardized exam.

(114) [ (110) ] Quality assessment and assurance committee--A group of health care professionals in a facility who develop and implement appropriate action to identify and rectify substandard care and deficient facility practice.

(115) Quality-of-care monitor--A registered nurse, pharmacist, or dietitian, employed by DHS, who is trained and experienced in long-term care facility regulation, standards of practice in long-term care, and evaluation of resident care, and functions independently of DHS Long-Term Care-Regulatory.

(116) [ (111) ] Recipient--Any individual residing in a Medicaid certified facility or a Medicaid certified distinct part of a facility whose daily vendor rate is paid by Medicaid.

(117) [ (112) ] Registered nurse (RN)--An individual currently licensed by the Board of Nurse Examiners for the State of Texas as a Registered Nurse in the State of Texas.

(118) [ (113) ] Reimbursement methodology--The method by which DHS determines nursing facility per diem rates.

(119) [ (114) ] Remodeling--The construction, removal, or relocation of walls and partitions, the construction of foundations, floors, or ceiling-roof assemblies, the expanding or altering of safety systems (including, but not limited to, sprinkler, fire alarm, and emergency systems) or the conversion of space in a facility to a different use.

(120) [ (115) ] Renovation--The restoration to a former better state by cleaning, repairing, or rebuilding, including, but not limited to, routine maintenance, repairs, equipment replacement, painting.

(121) [ (116) ] Representative payee--A person designated by the Social Security Administration to receive and disburse benefits, act in the best interest of the beneficiary, and ensure that benefits will be used according to the beneficiary's needs.

(122) [ (117) ] Resident--Any individual residing in a nursing facility.

(123) [ (118) ] Resident assessment instrument (RAI)--An assessment tool used [ utilized ] to conduct comprehensive, accurate, standardized, and reproducible assessments of each resident's functional capacity as specified by the Secretary of the U.S. Department of Health and Human Services. At a minimum, this instrument must consist of the Minimum Data Set (MDS) core elements as specified by the Centers for Medicare & Medicaid Services (CMS) [ Health Care Financing Administration (HCFA) ]; utilization guidelines; and Resident Assessment Protocols (RAPS).

(124) [ (119) ] Responsible party--An individual authorized by the resident to act for him as an official delegate or agent. Responsible party is usually a family member or relative, but may be a legal guardian or other individual. Authorization may be in writing or verbal.

(125) [ (120) ] Restraints (chemical)--Psychoactive drugs administered for the purposes of discipline, or convenience, and not required to treat the resident's medical symptoms.

(126) [ (121) ] Restraints (physical)--Any manual method, or physical or mechanical device, material or equipment attached, or adjacent to the resident's body, that the individual cannot remove easily which restricts freedom of movement or normal access to one's body.

(127) [ (122) ] Secretary--Secretary of Health and Human Services.

(128) [ (123) ] Services required on a regular basis--Services which are provided at fixed or recurring intervals and are needed so frequently that it would be impractical to provide the services in a home or family setting. Services required on a regular basis include continuous or periodic nursing observation, assessment, and intervention in all areas of resident care.

(129) [ (124) ] SNF--A skilled nursing facility or distinct part of a facility that participates in the Medicare program. SNF requirements apply when a certified facility is billing Medicare for a resident's per diem rate.

(130) [ (125) ] Social Security Administration--Federal agency for administration of social security benefits. Local social security administration offices take applications for Medicare, assist beneficiaries in filing claims, and provide information about the Medicare program.

(131) [ (126) ] Social Worker--A qualified social worker is an individual who is licensed, or provisionally licensed, by the Texas State Board of Social Work Examiners as prescribed by Chapter 50 of the Human Resources Code and who has at least:

(A) a bachelor's degree in social work, or

(B) similar professional qualifications, which include a minimum educational requirement of a bachelor's degree and one year experience met by employment providing social services in a health care setting.

(132) [ (127) ] Standards--The minimum conditions, requirements, and criteria established in this chapter with which an institution must comply to be licensed under this chapter.

(133) [ (128) ] State plan--A formal plan for the medical assistance program, submitted to CMS [ HCFA ], in which the State of Texas agrees to administer the program in accordance with the provisions of the State Plan, the requirements of Titles XVIII and XIX, and all applicable federal regulations and other official issuances of the U.S. [ United States ] Department of Health and Human Services.

(134) [ (129) ] State survey agency--The Texas Department of Human Services is the agency, which through contractual agreement with the single state agency, is designated as the agency responsible for Title XIX survey and certification of nursing facilities and utilization review in the Title XIX nursing facilities.

(135) [ (130) ] Supervising physician--A physician who assumes responsibility and legal liability for services rendered by a physician assistant (PA) and has been approved by the Texas State Board of Medical Examiners to supervise services rendered by specific Pas. A supervising physician may also be a physician who provides general supervision of a nurse practitioner providing services in a nursing facility.

(136) [ (131) ] Supervision--General supervision, unless otherwise identified.

(137) [ (132) ] Supervision (direct)--Authoritative procedural guidance by a qualified person for the accomplishment of a function or activity within his sphere of competence. If the person being supervised does not meet assistant-level qualifications specified in this chapter and in federal regulations, the supervisor must be on the premises and directly supervising.

(138) [ (133) ] Supervision (general)--Authoritative procedural guidance by a qualified person for the accomplishment of a function or activity within his sphere of competence. The person being supervised must have access to the licensed and/or qualified person providing the supervision.

(139) [ (134) ] Supervision (intermittent)--Authoritative procedural guidance by a qualified person for the accomplishment of a function or activity within his sphere of competence, with initial direction and periodic inspection of the actual act of accomplishing the function or activity. The person being supervised must have access to the licensed and/or qualified person providing the supervision.

(140) [ (135) ] Texas Register --A publication of the Texas Register Publications Section of the Office of the Secretary of State which contains emergency, proposed, withdrawn, and adopted rules issued by Texas state agencies. The Texas Register was established by the Administrative Procedure and Texas Register Act of 1975.

(141) [ (136) ] Therapeutic diet--A diet ordered by a physician as part of treatment for a disease or clinical condition, in order to eliminate, decrease, or increase certain substances in the diet or to provide food which has been altered to make it easier for the resident to eat.

(142) [ (137) ] Therapy week--A seven-day period beginning the first day rehabilitation therapy or restorative nursing care is given. All subsequent therapy weeks for a particular individual will begin on that day of the week.

(143) [ (138) ] Threatened violation--A situation which, unless immediate steps are taken to correct, may cause injury or harm to a resident's health and safety.

(144) [ (139) ] TILE--Texas Index for Level of Effort; an index of 11 categories plus a default that consists of relative resource utilization groups. The index determines where a nursing facility client fits based upon service and care requirements. It determines the daily rate to be paid on behalf of the client.

(145) [ (140) ] TILE 202 restorative nursing--Nursing care and practices, based on a plan of care developed by the restorative team, designed to maintain or improve on goals achieved during physical or occupational therapy. Examples of TILE 202 restorative nursing include training and skill practice in self-feeding, bed mobility, transfers, ambulation, dressing or grooming, and active range of motion.

(146) [ (141) ] TILE error--Inaccuracies in a CARE form assessment of a Medicaid recipient which result in an incorrect TILE classification.

(147) [ (142) ] Title II--Retirement Survivors' Disability Insurance of the Social Security Act.

(148) [ (143) ] Title XVI--Supplemental Security Income (SSI) of the Social Security Act.

(149) [ (144) ] Title XVIII--Medicare provisions of the Social Security Act.

(150) [ (145) ] Title XIX--Medicaid provisions of the Social Security Act.

(151) [ (146) ] Total health status--Includes functional status, medical care, nursing care, nutritional status, rehabilitation and restorative potential, activities potential, cognitive status, oral health status, psychosocial status, and sensory and physical impairments.

(152) [ (147) ] TXMHMR--Texas Department of Mental Health and Mental Retardation.

(153) [ (148) ] UAR-- The Texas Health and Human Services Commission's (HHSC's) [ DHS's ] Utilization and Assessment Review Section.

(154) [ (149) ] Uniform data set--See Resident Assessment Instrument (RAI).

(155) [ (150) ] Universal precautions--The use of barrier and other precautions by long-term [ long term ] care facility employees and/or contract agents to prevent the spread of blood-borne diseases.

(156) [ (151) ] Utilization review committee--The group of health care professionals contracted by DHS to make individual determinations of medical necessity regarding nursing facility care. The Utilization Review Committee consists of physicians and registered nurses.

(157) [ (152) ] Vendor payment--Payment made by DHS on a daily-rate basis for services delivered to recipients in Medicaid-certified nursing facilities. Vendor payment is based on the nursing facility's claim approval of the DHS-generated Nursing Facility Billing Statement to DHS. The Nursing Facility Billing Statement, subject to adjustments and corrections, is prepared from information submitted by the nursing facility which is currently on file in the computer system as of the billing date. Vendor payment is made at periodic intervals, but not less than once per month for services rendered during the previous billing cycle.

(158) [ (153) ] Working day--Any 24-hour period, Monday through Friday, excluding state and federal holidays.

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 January 25, 2002.

TRD-200200476

Paul Leche

General Counsel, Legal Services

Texas Department of Human Services

Earliest possible date of adoption: March 10, 2002

For further information, please call: (512) 438-3734

Subchapter E. RESIDENT RIGHTS

40 TAC §§19.401, 19.403, 19.422

The amendments and new section are proposed under the Health and Safety Code, Chapter 242, which authorizes DHS to license and regulate convalescent and nursing homes and related institutions.

The amendments and new section implement the Health and Safety Code, §§242.001- 242.268.

§19.401.Introduction.

(a) (No change.)

(b) The Texas Department of Human Services has developed the following statement of the rights of a resident.

Figure: 40 TAC §19.401(b)

(c)-(d) (No change.)

§19.403.Notice of Rights and Services.

(a)-(f) (No change.)

(g) The resident has the right to refuse treatment, to formulate an advance directive (as specified in §19.419 of this title (relating to Directives and Medical [ Durable ] Powers of Attorney [ for Health Care ])), and to refuse to participate in experimental research.

(1)-(3) (No change.)

(h)-(l) (No change.)

§19.422.Authorized Electronic Monitoring (AEM).

(a) A facility must permit a resident or the resident's guardian or legal representative to monitor the resident's room through the use of electronic monitoring devices.

(b) A facility may not refuse to admit an individual and may not discharge a resident because of a request to conduct authorized video monitoring.

(c) The Texas Department of Human Services (DHS) Information Regarding Authorized Electronic Monitoring form must be signed by or on behalf of all new residents upon admission. The form must be completed and signed by or on behalf of all current residents by January 1, 2003. A copy of the form must be maintained in the active portion of the resident's clinical record.

Figure: 40 TAC §19.422(c)

(d) A resident, or the resident's guardian or legal representative, who wishes to conduct AEM must request AEM by giving a completed, signed, and dated DHS Request for Authorized Electronic Monitoring form to the administrator or designee. A copy of the form must be maintained in the active portion of the resident's clinical record.

(1) If a resident has capacity to request AEM and has not been judicially declared to lack the required capacity, only the resident may request AEM, notwithstanding the terms of any durable power of attorney or similar instrument.

(2) If a resident has been judicially declared to lack the capacity required to request AEM, only the guardian of the resident may request AEM.

(3) If a resident does not have capacity to request AEM and has not been judicially declared to lack the required capacity, only the legal representative of the resident may request AEM.

(A) A resident's physician makes the determination regarding the capacity to request AEM. Documentation of the determination must be made in the resident's clinical record.

(B) When a resident's physician determines the resident lacks capacity to request AEM, a person from the following list, in order of priority, may act as the resident's legal representative for the limited purpose of requesting AEM:

(i) a person named in the resident's medical power of attorney or other advance directive;

(ii) the resident's spouse;

(iii) an adult child of the resident who has the waiver and consent of all other qualified adult children of the resident to act as the sole decision-maker;

(iv) a majority of the resident's reasonably available adult children;

(v) the resident's parents; or

(vi) the individual clearly identified to act for the resident by the resident before the resident became incapacitated or the resident's nearest living relative.

(e) A resident, or the resident's guardian or legal representative, who wishes to conduct AEM also must obtain the consent of other residents in the room, using the DHS Consent to Authorized Electronic Monitoring form. When complete, the form must be given to the administrator or designee. A copy of the form must be maintained in the active portion of the resident's clinical record.

(1) Consent to AEM may be given only by:

(A) the other resident or residents in the room;

(B) the guardian of the other resident, if the resident has been judicially declared to lack the required capacity; or

(C) the legal representative of the other resident, determined by following the same procedure established under (d)(3) of this section.

(2) Another resident in the room may condition consent on:

(A) pointing the camera away from the consenting resident, when the proposed electronic monitoring is a video surveillance camera; and

(B) limiting or prohibiting the use of an audio electronic monitoring device.

(3) AEM must be conducted in accordance with any limitation placed on the monitoring as a condition of the consent given by or on behalf of another resident in the room. The resident's roommate, their guardian, or legal representative assumes responsibility for assuring AEM is conducted according to the designated limitations.

(4) If AEM is being conducted in a resident's room, and another resident is moved into the room who has not yet consented to AEM, the monitoring must cease until the new resident, or the resident's guardian or legal representative, consents.

(f) When the completed Request for Authorized Electronic Monitoring form and the Consent to Authorized Electronic Monitoring form, if applicable, have been given to the administrator or designee, AEM may begin.

(1) Anyone conducting AEM must post and maintain a conspicuous notice at the entrance to the resident's room. The notice must state that the room is being monitored by an electronic monitoring device.

(2) The resident, or the resident's guardian or legal representative, must pay for all costs associated with conducting AEM including installation, maintenance, or removal of the equipment, other than the costs of electricity.

(3) The facility must meet residents' requests to have a video camera obstructed to protect their dignity.

(4) The facility must make reasonable physical accommodation for AEM, which includes providing:

(A) a reasonably secure place to mount the video surveillance camera or other electronic monitoring device; and

(B) access to power sources for the video surveillance camera or other electronic monitoring device.

(g) All facilities, regardless of whether AEM is being conducted, must post an 8-inch by 11-inch notice at the main facility entrance. The notice must be entitled "Electronic Monitoring" and must state, in large, easy-to-read type, "The rooms of some residents may be monitored electronically by or on behalf of the residents. Monitoring may not be open and obvious in all cases."

(h) A facility may:

(1) require an electronic monitoring device to be installed in a manner that is safe for residents, employees, or visitors who may be moving about the room, and meets all local and state regulations;

(2) require AEM to be conducted in plain view;

(3) place a resident in a different room to accommodate a request for AEM.

(i) A facility may not discharge a resident because covert electronic monitoring is being conducted by or on behalf of a resident. If a covert electronic monitoring device is discovered by a facility, the facility must:

(1) inform the roommate(s), their guardian or legal representative;

(2) review the contents of the Information Regarding Authorized Electronic Monitoring form with the resident, or guardian or legal representative of the resident, conducting covert electronic monitoring; and

(3) post and maintain a conspicuous notice at the entrance to the resident's room. The notice must state that an electronic monitoring device is monitoring the room.

(j) DHS may assess an administrative penalty of $500 against a facility for each instance in which the facility:

(1) refuses to permit a resident, or the resident's guardian or legal representative, to conduct AEM;

(2) refuses to admit an individual or discharges a resident because of a request to conduct AEM;

(3) discharges a resident because covert electronic monitoring is being conducted by or on behalf of the resident; or

(4) violates any other provision related to AEM.

(k) All instances of abuse or neglect must be reported to DHS, as required by §19.602 of this title (relating to Incidents of Abuse and Neglect Reportable to the Texas Department of Human Services (DHS) by Facilities). For purposes of the duty to report abuse or neglect and the criminal penalty for the failure to report abuse or neglect, established under the Health and Safety Code, §242.122, the following apply:

(1) A person who is conducting electronic monitoring on behalf of a resident is considered to have viewed or listened to a tape or recording made by the electronic monitoring device on or before the 14th day after the date the tape or recording is made.

(2) If a resident, who has capacity to determine that the resident has been abused or neglected and who is conducting electronic monitoring, gives a tape or recording made by the electronic monitoring device to a person and directs the person to view or listen to the tape or recording to determine whether abuse or neglect has occurred, the person to whom the resident gives the tape or recording is considered to have viewed or listened to the tape or recording on or before the seventh day after the date the person receives the tape or recording.

(3) A person is required to report abuse based on the person's viewing of or listening to a tape or recording only if the incident of abuse is acquired on the tape or recording. A person is required to report neglect based on the person's viewing of or listening to a tape or recording only if it is clear from viewing or listening to the tape or recording that neglect has occurred.

(4) If abuse or neglect of the resident is reported to the facility and the facility requests a copy of any relevant tape or recording made by an electronic monitoring device, the person who possesses the tape or recording must provide the facility with a copy at the facility's expense. The cost of the copy must not exceed the community standard. If the contents of the tape or recording are transferred from the original technological format, a qualified professional must do the transfer.

(5) A person who sends more than one tape or recording to DHS must identify each tape or recording on which the person believes an incident of abuse or evidence of neglect may be found. Tapes or recordings should identify the place on the tape or recording that an incident of abuse or evidence of neglect may be found.

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 January 25, 2002.

TRD-200200477

Paul Leche

General Counsel, Legal Services

Texas Department of Human Services

Earliest possible date of adoption: March 10, 2002

For further information, please call: (512) 438-3734

Subchapter J. QUALITY OF CARE

40 TAC §19.910, §19.911

The new sections are proposed under the Health and Safety Code, Chapter 255, which requires DHS to establish a quality-of-care monitoring system and rapid response teams, and Human Resources Code, Chapter 21, which authorizes DHS to adopt rules.

The new sections implement the Health and Safety Code, §§255.001-255.005.

§19.910.Quality Assurance Early Warning System.

The Texas Department of Human Services (DHS) uses an early warning system to detect conditions that could be detrimental to the health, safety, and welfare of residents.

(1) Quality-of-care monitors are based in regional offices and monitor long-term care (LTC) facilities on a regular, unannounced, aperiodic basis, including nights, weekends, and holidays.

(2) Priority for monitoring visits is given to LTC facilities with a history of resident care deficiencies.

(3) Quality-of-care monitors assess:

(A) the overall quality of life in the facility; and

(B) specific conditions in the facility directly related to resident care.

(4) The quality-of-care monitor assessment visits include:

(A) observation of the care and services rendered to residents; and

(B) formal and informal interviews with residents, family members, facility staff, resident guests, volunteers, other regular staff, and resident representatives and advocates.

(5) The identity of a resident or a family member of a resident interviewed by a quality-of-care monitor is confidential and may not be disclosed.

(6) The findings of a monitoring visit, both positive and negative, will be provided orally and in writing to the facility administrator or, in the absence of the facility administrator, to the administrator on duty or the director of nursing.

(7) The quality-of-care monitor may recommend procedural and policy changes and staff training to improve the care or quality of life of residents to the facility administrator.

(8) Conditions observed by the quality-of-care monitor that may constitute an immediate threat to the health or safety of a resident are immediately reported to the regional office supervisor for appropriate action and, as appropriate or as required by law, to law enforcement, adult protective services, other divisions of DHS, or other responsible agencies.

§19.911.Rapid Response Teams.

(a) Rapid response teams are composed of two or more quality-of-care monitors who can visit long-term care (LTC) facilities identified through the Texas Department of Human Services' (DHS's) early warning system.

(b) Rapid response teams may visit facilities that request DHS's assistance. A visit under this subsection may not occur before the 60th day after the date of an exit interview following an annual or follow-up survey or inspection.

(c) Rapid response teams may not be deployed for the purpose of helping an LTC facility prepare for a regular inspection or survey conducted under the Health and Safety Code, Chapters 242, 247, or 252, or in accordance with the Human Resources Code, Chapter 32.

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 January 25, 2002.

TRD-200200478

Paul Leche

General Counsel, Legal Services

Texas Department of Human Services

Earliest possible date of adoption: March 10, 2002

For further information, please call: (512) 438-3734

Subchapter M. PHYSICIAN SERVICES

40 TAC §19.1207

The new section is proposed under the Health and Safety Code, Chapter 242, which authorizes DHS to license and regulate convalescent and nursing homes and related institutions.

The new section implements the Health and Safety Code, §§242.001-242.268.

§19.1207.Prescription of Psychoactive Medication.

(a) In this section, the following words and terms have the following meanings, unless the context clearly indicates otherwise:

(1) Medication-related emergency--A situation in which it is immediately necessary to administer medication to a resident to prevent:

(A) imminent probable death or substantial bodily harm (emotional or physical) to the resident; or

(B) imminent physical or emotional harm to another because of threats, attempts, or other acts the resident overtly or continually makes or commits.

(2) Psychoactive medication--A medication prescribed for the treatment of symptoms of psychosis or other severe mental or emotional disorders and used to exercise an effect on the central nervous system to influence and modify behavior, cognition, or affective state when treating the symptoms of mental illness. The term includes the following categories when used as described by this subdivision:

(A) anti-psychotics or neuroleptics;

(B) antidepressants;

(C) agents for control of mania or depression;

(D) anti-anxiety agents;

(E) sedatives, hypnotics, or other sleep-promoting drugs; and

(F) psychomotor stimulants.

(b) A person may not administer a psychoactive medication to a resident who does not consent to the prescription unless:

(1) the resident is having a medication-related emergency; or

(2) the person authorized by law to consent on behalf of the resident has consented to the prescription.

(c) Consent to the prescription of psychoactive medication given by a resident, or by a person authorized by law to consent on behalf of the resident, is valid only if:

(1) the consent is given voluntarily and without coercive or undue influence;

(2) the person who prescribes the medication, or that person's designee, provides the resident and, if applicable, the person authorized by law to consent on behalf of the resident, with the following information in a single document identified as being for the purpose of consent to treatment with psychoactive medication:

(A) the specific condition to be treated;

(B) the beneficial effects on that condition expected from the medication;

(C) the probable clinically significant side effects and risks associated with the medication, as reported in widely available pharmacy databases or the manufacturer's package insert; and

(D) the proposed course of the medication;

(3) the resident and, if appropriate, the person authorized by law to consent on behalf of the resident, are informed in writing that consent may be revoked; and

(4) the consent is evidenced in the resident's clinical record by a signed form prescribed by the facility, or by a statement of the person who prescribes the medication or that person's designee, that documents consent was given by the appropriate person and the circumstances under which the consent was obtained. Consent is valid:

(A) for anti-anxiety agents and sedatives, hypnotics, or other sleep-promoting drugs, until consent is withdrawn; and

(B) for anti-psychotics, antidepressants, agents for control of mania or depression and psychomotor stimulants, until:

(i) consent is withdrawn; or

(ii) the physician has discontinued the medication. An interruption of therapy (including trial discontinuation) for less than 70 days does not invalidate consent.

(d) The Health and Safety Code, Chapter 313, Consent to Medical Treatment, provides guidance on treatment decisions when a resident is comatose, incapacitated, or otherwise mentally or physically incapable of communication. An ethics committee also may prove helpful in such situations.

(e) A resident's refusal to consent to receive psychoactive medication must be documented in the resident's clinical record.

(f) If a person prescribes psychoactive medication to a resident without the resident's consent because the resident is having a medication-related emergency:

(1) the person must document the necessity of the order in the resident's clinical record in specific medical or behavioral terms; and

(2) treatment of the resident with the psychoactive medication must be provided in the manner, consistent with clinically appropriate medical care, least restrictive of the resident's personal liberty.

(g) A physician, or a person designated by the physician, is not liable for civil damages or an administrative penalty and is not subject to disciplinary action for a breach of confidentiality of medical information for a disclosure of the information provided under subsection (c)(2) made by the resident, or the person authorized by law to consent on behalf of the resident, that occurs while the information is in the possession or control of the resident or the person authorized by law to consent on behalf of the resident.

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 January 25, 2002.

TRD-200200479

Paul Leche

General Counsel, Legal Services

Texas Department of Human Services

Earliest possible date of adoption: March 10, 2002

For further information, please call: (512) 438-3734

Subchapter T. ADMINISTRATION

40 TAC §19.1913

The amendment is proposed under the Health and Safety Code, Chapter 242, which authorizes DHS to license and regulate convalescent and nursing homes and related institutions.

The amendment implements the Health and Safety Code, §§242.001-242.268.

§19.1913.Clinical Records Service Supervisor.

The facility must designate in writing a clinical records supervisor who has the authority, responsibility, and accountability for the functions of the clinical records service. The clinical records supervisor must be:

(1) A registered health information [ record ] administrator (RHIA) [ (RRA) ] or registered health information [ an accredited record ] technician (RHIT) [ (ART) ]; or

(2) An individual with experience appropriate to the scope and complexity of services performed as determined by the Texas Department of Human Services, and who receives consultation at a minimum of every 180 days from an (RHIA) [ (RRA) ] or (RHIT) [ (ART) ].

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 January 25, 2002.

TRD-200200480

Paul Leche

General Counsel, Legal Services

Texas Department of Human Services

Earliest possible date of adoption: March 10, 2002

For further information, please call: (512) 438-3734

Subchapter U. INSPECTIONS, SURVEYS, AND VISITS

40 TAC §19.2011

The amendment is proposed under the Health and Safety Code, Chapter 242, which authorizes DHS to license and regulate convalescent and nursing homes and related institutions.

The amendment implements the Health and Safety Code, §§242.001-242.268.

§19.2011.Procedures for Inspection of Public Records.

(a) (No change.)

(b) [ The ] Long-Term Care-Regulatory, Texas Department of Human Services (DHS), is responsible for the maintenance and release of records on licensed facilities, and other related records.

(c) The application for inspection of public records is subject to the following criteria:

(1) the application must be made to Long-Term Care-Regulatory, Texas Department of Human Services, 701 West 51st Street [ 8407 Wall Street ], Austin, Texas 78751 [ 78754 ] or P.O. Box 149030, Austin, Texas 78714-9030 ;

(2)-(6) (No change.)

(d)-(e) (No change.)

(f) Long-Term Care-Regulatory will charge for copies of records upon request.

(1)-(2) (No change.)

(3) Any expenses for standard-size copies incurred in the reproduction, preparation, or retrieval of records must be borne by the requestor on a cost basis in accordance with costs established by the State Purchasing and Texas Building and Procurement Commission [ General Services Commission ] or DHS for office machine copies.

(4)-(5) (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 January 25, 2002.

TRD-200200481

Paul Leche

General Counsel, Legal Services

Texas Department of Human Services

Earliest possible date of adoption: March 10, 2002

For further information, please call: (512) 438-3734

Part 19. TEXAS DEPARTMENT OF PROTECTIVE AND REGULATORY SERVICES

Chapter 700. CHILD PROTECTIVE SERVICES

Subchapter H. ADOPTION ASSISTANCE PROGRAM

The Texas Department of Protective and Regulatory Services (PRS) proposes amendments to §§700.801, 700.805, 700.823, and 700.840, concerning the adoption assistance program, in its Child Protective Services chapter. The purpose of the amendments is to clarify that a court removal order does not need to precede a voluntary transfer of a child to a private licensed child-placing agency for a child to be eligible for adoption assistance. The court must still be petitioned for a removal order within six months after such a voluntary transfer, and the court must make the specified finding in the first order that responds to the petition. The proposed amendments add the statement that court orders cannot merely approve a voluntary relinquishment and be considered a judicial removal for the purpose of Title IV-E adoption assistance. The amendments also clarify that PRS can enter into Title IV-E agreements with other authorized entities, such as another public agency or Indian tribe.

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 certain children in the care of private child-placing agencies and placed for adoption will qualify for adoption assistance. Inclusion of the minor amendments to reflect federal law will facilitate development of agreements with other entities should the need arise. There will be no effect on large, small, or micro-businesses because the rules impact special needs children, not businesses. 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 Susan Klickman at (512) 438-3302 in PRS's Child Protective Services Division. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-202, 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.

1. PROGRAM DESCRIPTION AND DEFINITIONS

40 TAC §700.801, §700.805

The amendments are proposed under Human Resources Code, §40.029, which provides the department with the authority to propose and adopt rules in compliance with state law and to implement departmental programs.

The amendments implement the Texas Family Code, Chapter 162, Subchapter D, Adoption Assistance Program, and Title IV-E of the Social Security Act (42 U.S.C. §673), which require that the department implement an adoption assistance program for special needs children.

§700.801.What do certain words and terms in this subchapter mean?

In Subchapter H, the following words and terms have the stated meanings:

(1) - (8) (No change.)

(9) The terms "adoptive placement" and "placed for adoption" only refer to points in time during the period when PRS, the authorized entity, or the LCPA has managing conservatorship of the child, parental rights to the child are terminated, the adoptive parent(s) have an approved adoptive home study and the child is living with them under a written adoptive placement agreement prior to adoption consummation.

(10) - (12) (No change.)

(13) The term "authorized entity" refers to any entity, such as another public agency or Tribe, with whom PRS has an agreement, which permits the authorized entity to receive federal funding participation under Title IV-E of the federal Social Security Act.

§700.805.Can a child who is placed by an LCPA or authorized entity get adoption assistance?

(a) Yes, but a special needs child placed for adoption by an LCPA or authorized entity can qualify for adoption assistance only by meeting the requirements of Title IV-E, as described in Division 2 of this subchapter (relating to Title IV-E Eligibility Requirements).

(b) (No change.)

(c) A special needs child placed for adoption by an LCPA or authorized entity is not eligible for the state adoption assistance program.

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 January 25, 2002.

TRD-200200466

C. Ed Davis

Deputy Director, Legal Services

Texas Department of Protective and Regulatory Services

Proposed date of adoption: March 22, 2002

For further information, please call: (512) 438-3437

2. TITLE IV-E ELIGIBILITY REQUIREMENTS

40 TAC §700.823

The amendment is proposed under Human Resources Code, §40.029, which provides the department with the authority to propose and adopt rules in compliance with state law and to implement departmental programs.

The amendment implements the Texas Family Code, Chapter 162, Subchapter D, Adoption Assistance Program, and Title IV-E of the Social Security Act (42 U.S.C. §673), which require that the department implement an adoption assistance program for special needs children.

§700.823.What is necessary for a court order to be considered a removal?

(a) The very first [ court ] order issued by the court in response to the petition to remove the child from the home [ addressing the fact that the child no longer lives at home ] must contain a judicial finding to the effect that it is contrary to the child's welfare, or not in the child's best interest, to remain in the home. [ A court order that follows a voluntary transfer of possession of a child to an LCPA cannot be characterized as a court removal. ]

(b) If the child leaves the home under a voluntary arrangement, the petition to remove the child from that home must be filed before six months have passed and the first court order issued in response must contain the required judicial finding stated in subsection (a) of this section.

(c) If a court order only acknowledges and approves the voluntary relinquishment of a child, it is not a judicial removal and does not meet the requirements for Title IV-E adoption assistance eligibility.

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 January 25, 2002.

TRD-200200467

C. Ed Davis

Deputy Director, Legal Services

Texas Department of Protective and Regulatory Services

Proposed date of adoption: March 22, 2002

For further information, please call: (512) 438-3437

3. APPLICATION PROCESS, AGREEMENTS, AND BENEFITS

40 TAC §700.840

The amendment is proposed under Human Resources Code, §40.029, which provides the department with the authority to propose and adopt rules in compliance with state law and to implement departmental programs.

The amendment implements the Texas Family Code, Chapter 162, Subchapter D, Adoption Assistance Program, and Title IV-E of the Social Security Act (42 U.S.C. §673), which require that the department implement an adoption assistance program for special needs children.

§700.840.What is the application process for adoption assistance?

(a) You must file a complete application with the adoption assistance staff in the PRS office in your area. Some of the information you are asked to provide is unrelated to determining your child's eligibility, but it may be used to discuss and negotiate the amount of monthly payments, as described in §700.844 of this title (relating to How are monthly payment amounts determined? [ What is the maximum amount for monthly payments? ]).

(b) (No change.)

(c) If an LCPA or authorized entity places the child, the LCPA or authorized entity must inform you of the adoption assistance program. You may need the LCPA or authorized entity to help you with the application and eligibility documentation. The LCPA or authorized entity can provide information directly to us on your behalf.

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 January 25, 2002.

TRD-200200468

C. Ed Davis

Deputy Director, Legal Services

Texas Department of Protective and Regulatory Services

Proposed date of adoption: March 22, 2002

For further information, please call: (512) 438-3437

Chapter 700. CHILD PROTECTIVE SERVICES

Subchapter H. ADOPTION ASSISTANCE PROGRAM

The Texas Department of Protective and Regulatory Services (PRS) proposes amendments to §§700.842, 700.860, and 700.880, concerning what happens if my child is determined eligible, what if my child's or family's circumstances change, and what are my rights to appeal a PRS decision regarding adoption assistance benefits; proposes the repeal of §700.844, concerning what is the maximum amount for monthly payments; and proposes new §700.844, concerning how are monthly payment amounts determined, in its Child Protective Services chapter. The purpose of the proposal is to repeal the rule that links the adoption subsidy payment ceiling to the level-of-care 1 foster-care rate, and propose a new rule that requires the PRS Board to establish and review the adoption subsidy payment ceiling at least once each budgetary biennium. Cross-references to §700.844 are amended to reflect the new rule title.

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, as the rules do not require the Board to establish a maximum payment ceiling at any particular level.

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 PRS can adjust the adoption assistance payment ceiling, as necessary, to accommodate budgetary resources, thereby avoiding a potential deficit and the concomitant disruption of the adoption assistance program. There will be no effect on large, small, or micro-businesses because the rules impact special needs children, not businesses. 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 Susan Klickman at (512) 438-3302 in PRS's Child Protective Services Division. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-205, 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.

3. APPLICATION PROCESS, AGREEMENTS, AND BENEFITS

40 TAC §700.842, §700.844

The amendment and new section are proposed under the Human Resources Code, §40.029, which authorizes the department to propose and adopt rules in compliance with federal and state laws and regulations and to implement departmental programs; and Texas Family Code, Chapter 162, Subchapter D, Adoption Assistance Program, which requires the department to adopt rules to implement an adoption assistance program for special needs children.

The amendment and new section implement the Human Resources Code, §40.029, and Texas Family Code, Chapter 162, Subchapter D.

§700.842.What happens if my child is determined eligible?

(a) (No change.)

(b) If the child is eligible for benefits other than the reimbursement of nonrecurring expenses, we send you an agreement that may specify a monthly payment amount. If you are not offered the maximum monthly payment amount, as described in §700.844 of this title (relating to How are monthly payment amounts determined? [ What is the maximum amount for monthly payments? ]), you can discuss and negotiate the amount with us before you sign and return the proposed agreement.

(c) - (d) (No change.)

§700.844.How are monthly payment amounts determined?

(a) The following factors are considered and discussed in negotiating and determining benefits:

(1) We evaluate your child's present need for services in relation to your family's income, expenses, circumstances, and plans for the future.

(2) Benefits are intended only to assist in meeting your child's needs and your parental responsibilities.

(3) Any and all sources of income and support that are specifically designated for the child (such as Retirement, Survivors, Disability Insurance (RSDI) or Veterans Administration (VA) benefits) must be applied toward meeting the child's needs.

(4) We do not consider costs associated with your choice to meet the child's needs through private sources when those needs can be met through other publicly funded sources.

(5) If the child needs special services not covered by your private insurance or Texas Medicaid, we must determine the actual cost of services available to meet those needs. If actual costs are not available, we determine a reasonable estimate of projected costs.

(b) There is a limit to the amount of a monthly payment that you can negotiate. You are informed of the maximum monthly payment amount that you can negotiate at the time of your application for adoption assistance.

(c) Whenever you are offered, or are receiving, the maximum monthly payment amount, you cannot request:

(1) an increase in your adoption assistance payment amount; or

(2) an appeal regarding the payment amount.

(d) The maximum monthly payment amount is reviewed and established by the Board of Protective and Regulatory Services ("the Board") on or before the beginning of each budgetary biennium. The Board may also review and adjust the maximum payment amount during the budgetary biennium, if necessary. Whenever the Board adopts a new maximum payment amount, the Board must specify the effective date for the new payment ceiling and whether it applies to all agreements or only to new ones. The Board's determination of the maximum payment amount is based upon at least the following considerations:

(1) the recommendation of PRS;

(2) the requirements of state and federal law;

(3) budgetary resources;

(4) projections of the number of children in foster care that may need assistance to facilitate their adoption; and

(5) whether a new payment amount will apply to all agreements or only to new ones.

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 January 25, 2002.

TRD-200200469

C. Ed Davis

Deputy Director, Legal Services

Texas Department of Protective and Regulatory Services

Proposed date of adoption: March 22, 2002

For further information, please call: (512) 438-3437

40 TAC §700.844

(Editor's note: The text of the following section proposed for repeal will not be published. The section 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 repeal is proposed under the Human Resources Code, §40.029, which authorizes the department to propose and adopt rules in compliance with federal and state laws and regulations and to implement departmental programs; and Texas Family Code, Chapter 162, Subchapter D, Adoption Assistance Program, which requires the department to adopt rules to implement an adoption assistance program for special needs children.

The repeal implements the Human Resources Code, §40.029, and Texas Family Code, Chapter 162, Subchapter D.

§700.844.What is the maximum amount for monthly payments?

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 January 25, 2002.

TRD-200200470

C. Ed Davis

Deputy Director, Legal Services

Texas Department of Protective and Regulatory Services

Proposed date of adoption: March 22, 2002

For further information, please call: (512) 438-3437

4. CHANGES IN CIRCUMSTANCES

40 TAC §700.860

The amendment is proposed under the Human Resources Code, §40.029, which authorizes the department to propose and adopt rules in compliance with federal and state laws and regulations and to implement departmental programs; and Texas Family Code, Chapter 162, Subchapter D, Adoption Assistance Program, which requires the department to adopt rules to implement an adoption assistance program for special needs children.

The amendment implements the Human Resources Code, §40.029, and Texas Family Code, Chapter 162, Subchapter D.

§700.860.What if my child's or family's circumstances change?

(a) (No change.)

(b) If you are not already receiving the maximum monthly payment, you may request an increase when there is a change of circumstances affecting your adopted child's current needs or your family's ability to meet those needs. You must submit a written request for an increase to the local PRS office that processed your application and specify the change(s) in your child's or family's circumstances. Any request for an increase in monthly payment amount is subject to the requirements and limitations described in §700.844 of this title (relating to How are monthly payment amounts determined? [ What is the maximum amount for monthly payments? ]).

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 January 25, 2002.

TRD-200200471

C. Ed Davis

Deputy Director, Legal Services

Texas Department of Protective and Regulatory Services

Proposed date of adoption: March 22, 2002

For further information, please call: (512) 438-3437

5. APPEALS AND HEARINGS

40 TAC §700.880

The amendment is proposed under the Human Resources Code, §40.029, which authorizes the department to propose and adopt rules in compliance with federal and state laws and regulations and to implement departmental programs; and Texas Family Code, Chapter 162, Subchapter D, Adoption Assistance Program, which requires the department to adopt rules to implement an adoption assistance program for special needs children.

The amendment implements the Human Resources Code, §40.029, and Texas Family Code, Chapter 162, Subchapter D.

§700.880.What are my rights to appeal a PRS decision regarding adoption assistance benefits?

(a) - (b) (No change.)

(c) There is no right to appeal our decision to provide you all the benefits available, including the maximum monthly payment allowed, as described in §700.844 of this title (relating to How are monthly payment amounts determined? [ What is the maximum amount for monthly payments? ]).

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 January 25, 2002.

TRD-200200472

C. Ed Davis

Deputy Director, Legal Services

Texas Department of Protective and Regulatory Services

Proposed date of adoption: March 22, 2002

For further information, please call: (512) 438-3437

Chapter 720. 24-HOUR CARE LICENSING

The Texas Department of Protective and Regulatory Services (PRS) proposes amendments to §§720.136, 720.206, 720.366, 720.373, 720.505, and 720.525, concerning admission standards for therapeutic agency homes, admission standards for therapeutic family homes, admission policies for therapeutic group homes responsible to a child-placing agency, admission policies for independent therapeutic group homes, admission procedures-institutions serving mentally retarded children, and admission procedures-residential treatment centers, in its 24-Hour Care Licensing chapter. Generally, the proposed amendments decrease the required frequency of the diagnostic evaluation for a child who is coming from a regulated placement. For children moving from a regulated placement, the required evaluation is changed from a six-month interval to a 14-month interval prior to admission or if the admission is an emergency placement, within 30 days after admission. For all children being admitted to an institution serving mentally retarded children, the admission procedure allows an evaluation to be completed within 12 months prior to admission. This rule is expanded to allow the evaluation to be changed from a 12-month interval to a 14-month interval prior to admission, and within 30 days after admission in emergency placement situations. For all other facilities, when a child is not coming from a regulated placement, the facilities currently must have an evaluation within six months prior to admission and now, the rule is expanded to allow the evaluation to be done within 30 days after admission in emergency placement situations. Also, in §§720.136, 720.206, 720.366, and 720.373 the term "closed setting" is replaced with "more restrictive setting" for the purpose of clarity.

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 required frequency of the diagnostic evaluation will be decreased for a child who is coming from a regulated placement, and they will allow for flexibility in emergency placements in all of the noted facilities. The change supports the prevailing view of mental health professionals regarding the frequency with which these evaluations are needed for children in facilities. There will be no effect on large, small, or micro-businesses because these rules do not impose new requirements on the cost of doing business, do not require the purchase of any new equipment, and should not require any increased staff time in order to comply. 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 Lizet Alaniz at (512) 438-4538 or Betty Finley at 438-3234, in PRS's Licensing Division. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-198, 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 C. STANDARDS FOR HABILITATIVE AND THERAPEUTIC AGENCY HOMES

40 TAC §720.136

The amendment is proposed under the Human Resources Code, §40.029, which authorizes the department to propose and adopt rules to facilitate implementation of department programs; Human Resources Code, §42.042, which gives the department the authority to promulgate rules to carry out the statute and to regulate child-care facilities and homes, and child-care administrators; and Human Resources Code, §40.002, which gives the department primary responsibility for regulating child-care facilities.

The amendment implements the Human Resources Code, §§40.029, 42.042, and 40.002.

§720.136.Admission Standards for Therapeutic Agency Homes.

(a) A written psychiatric and psychological diagnostic evaluation [ obtained within six months prior to admission ] must be included in each resident's record. If the child is coming from another regulated placement, the evaluation must have been completed no more than 14 months prior to the date of admission. If the child is not coming from another regulated placement, the evaluation must have been completed no more than six months prior to admission. If the admission is an emergency placement and the child has not had the required evaluation during the relevant timeframe prior to admission, the evaluation must be completed within 30 days from admission.

(b) The child-placing agency shall not place children in an agency home if their behavioral patterns and current needs reflect the need for placement in a more restrictive [ closed ] setting.

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 January 25, 2002.

TRD-200200461

C. Ed Davis

Deputy Director, Legal Services

Texas Department of Protective and Regulatory Services

Proposed date of adoption: March 22, 2002

For further information, please call: (512) 438-3437

Subchapter D. STANDARDS FOR HABILITATIVE AND THERAPEUTIC FAMILY HOMES

40 TAC §720.206

The amendment is proposed under the Human Resources Code, §40.029, which authorizes the department to propose and adopt rules to facilitate implementation of department programs; Human Resources Code, §42.042, which gives the department the authority to promulgate rules to carry out the statute and to regulate child-care facilities and homes, and child-care administrators; and Human Resources Code, §40.002, which gives the department primary responsibility for regulating child-care facilities.

The amendment implements the Human Resources Code, §§40.029, 42.042, and 40.002.

§720.206.Admission Standards for Therapeutic Family Homes.

(a) A written psychiatric and psychological diagnostic evaluation [ obtained within six months prior to admission ] must be included in each resident's record. If the child is coming from another regulated placement, the evaluation must have been completed no more than 14 months prior to the date of admission. If the child is not coming from another regulated placement, the evaluation must have been completed no more than six months prior to admission. If the admission is an emergency placement and the child has not had the required evaluation during the relevant timeframe prior to admission, the evaluation must be completed within 30 days from admission.

(b) The therapeutic family home shall not accept residents for placement whose behavioral patterns and current needs reflect the need for placement in a more restrictive [ closed ] setting.

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 January 25, 2002.

TRD-200200462

C. Ed Davis

Deputy Director, Legal Services

Texas Department of Protective and Regulatory Services

Proposed date of adoption: March 22, 2002

For further information, please call: (512) 438-3437

Subchapter G. STANDARDS FOR HABILITATIVE AND THERAPEUTIC GROUP HOMES RESPONSIBLE TO A CHILD-PLACING AGENCY AND FOR INDEPENDENT HABILITATIVE AND THERAPEUTIC GROUP HOMES

40 TAC §720.366, §720.373

The amendments are proposed under the Human Resources Code, §40.029, which authorizes the department to propose and adopt rules to facilitate implementation of department programs; Human Resources Code, §42.042, which gives the department the authority to promulgate rules to carry out the statute and to regulate child-care facilities and homes, and child-care administrators; and Human Resources Code, §40.002, which gives the department primary responsibility for regulating child-care facilities.

The amendments implement the Human Resources Code, §§40.029, 42.042, and 40.002.

§720.366.Admission Policies for Therapeutic Group Homes Responsible to a Child-Placing Agency.

(a) A written psychiatric and psychological diagnostic evaluation [ obtained within six months prior to admission ] must be included in each resident's record. If the child is coming from another regulated placement, the evaluation must have been completed no more than 14 months prior to the date of admission. If the child is not coming from another regulated placement, the evaluation must have been completed no more than six months prior to admission. If the admission is an emergency placement and the child has not had the required evaluation during the relevant timeframe prior to admission, the evaluation must be completed within 30 days from admission.

(b) The therapeutic group home shall not accept residents for placement whose behavioral patterns and current needs reflect the need for placement in a more restrictive [ closed ] setting.

§720.373.Admission Policies for Independent Therapeutic Group Homes.

(a) A written psychiatric or psychological diagnostic evaluation [ obtained within six months prior to admission ] must be included in each resident's record. If the child is coming from another regulated placement, the evaluation must have been completed no more than 14 months prior to the date of admission. If the child is not coming from another regulated placement, the evaluation must have been completed no more than six months prior to admission. If the admission is an emergency placement and the child has not had the required evaluation during the relevant timeframe prior to admission, the evaluation must be completed within 30 days from admission.

(b) The therapeutic group home shall not accept residents for placement whose behavioral patterns and current needs reflect the need for placement in a more restrictive [ closed ] setting.

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 January 25, 2002.

TRD-200200463

C. Ed Davis

Deputy Director, Legal Services

Texas Department of Protective and Regulatory Services

Proposed date of adoption: March 22, 2002

For further information, please call: (512) 438-3437

Subchapter H. CONSOLIDATED STANDARDS FOR 24-HOUR CARE FACILITIES

40 TAC §720.505, §720.525

The amendments are proposed under the Human Resources Code, §40.029, which authorizes the department to propose and adopt rules to facilitate implementation of department programs; Human Resources Code, §42.042, which gives the department the authority to promulgate rules to carry out the statute and to regulate child-care facilities and homes, and child-care administrators; and Human Resources Code, §40.002, which gives the department primary responsibility for regulating child-care facilities.

The amendments implement the Human Resources Code, §§40.029, 42.042, and 40.002.

§720.505.Admission Procedures--Institutions Serving Mentally Retarded Children.

The admission assessment must include a psychological examination with a psychometric evaluation completed no more than 14 months prior to the date of admission [ done within the past 12 months ]. If the admission is an emergency placement and the child has not had the required evaluation during the relevant timeframe prior to admission, the evaluation must be completed within 30 days from admission. The psychological examination must be documented in the child's record.

§720.525.Admission Procedures--Residential Treatment Centers.

(a) A written psychiatric or psychological diagnostic evaluation[ , done within six months before admission and ] including diagnosis and prognosis, must be obtained and considered part of the admission assessment. If the child is coming from another regulated placement, the evaluation must have been completed no more than 14 months prior to the date of admission. If the child is not coming from another regulated placement, the evaluation must have been completed no more than six months prior to admission. If the admission is an emergency placement and the child has not had the required evaluation during the relevant timeframe prior to admission, the evaluation must be completed within 30 days from admission.

(b) - (d) (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 January 25, 2002.

TRD-200200464

C. Ed Davis

Deputy Director, Legal Services

Texas Department of Protective and Regulatory Services

Proposed date of adoption: March 22, 2002

For further information, please call: (512) 438-3437

Chapter 745. LICENSING

Subchapter K. INSPECTIONS AND INVESTIGATIONS

5. ABUSE AND NEGLECT

40 TAC §§745.8551, 745.8553, 745.8555, 745.8557, 745.8559

The Texas Department of Protective and Regulatory Services (PRS) proposes new §§745.8551, 745.8553, 745.8555, 745.8557, and 745.8559, concerning what is the purpose of this division, who works under the auspices of an operation, what do the following words mean when Licensing investigates abuse, neglect, or exploitation, what is abuse, and what is neglect, in its Licensing chapter. The sections are proposed in new Division 5, Abuse and Neglect, of Subchapter K, Inspections and Investigations. The purpose of the sections is to include information about abuse and neglect, which was passed in Senate Bill (SB) 664 of the 77th Legislature. SB 664 defines abuse, neglect, and exploitation in a facility, as opposed to a child's home. Previously PRS used the definitions of abuse and neglect found in the Texas Family Code, §261.001. The new definitions are now found in the Texas Family Code, §261.401.

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 Licensing will use abuse and neglect definitions specifically designed for facilities, instead of the definitions for abuse and neglect in a child's home. There will be no effect on large, small, or micro-businesses because the rules do not impose new requirements on the cost of doing business, do not require the purchase of any new equipment, and should not require any increased staff time in order to comply. 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 Pat Smith at (512) 438-3246 in PRS's Licensing Division. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-201, 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.

The new sections are proposed under the Human Resources Code, §40.029, which authorizes the department to propose and adopt rules to facilitate implementation of department programs; Human Resources Code, §40.002, which gives the department primary responsibility for regulating child care facilities; and Texas Family Code, §261.401, which defines abuse, neglect, and exploitation in facilities and authorizes the department to further describe those definitions by rule or policy.

The new sections implement the Texas Family Code, §261.401.

§745.8551.What is the purpose of this division?

The purpose of this division is to further describe the definitions of abuse, neglect, and exploitation by persons who work under the auspices of an operation, as found in Texas Family Code, Chapter 261, Subchapter E, §261.401.

§745.8553.Who works "under the auspices of an operation"?

The following persons work under the auspices of an operation:

(1) Any employee or volunteer of the operation;

(2) Any person under contract with the operation;

(3) A director, owner, operator, or administrator of an operation;

(4) Anyone who has responsibility for the children in care;

(5) Anyone who has unsupervised access to the children in care;

(6) Anyone who regularly or routinely lives at the operation; and

(7) Any other person permitted by act or omission to have access to children in care.

§745.8555.What do the following words mean when Licensing investigates abuse, neglect, or exploitation?

(a) Emotional harm - An observable impairment in a child's psychological growth, development, or functioning. Emotional harm is any significant change in a child's physical health or social behavior, including changes in sleeping and eating patterns. Emotional harm also includes any "substantial emotional harm." A mental health professional does not have to determine that there is emotional harm.

(b) Intentional, knowing, or reckless act or omission - An act or omission is intentional, knowing, or reckless if the person committing it:

(1) Deliberately causes or might cause physical injury or emotional harm to the child;

(2) Knows or should know that physical injury or emotional harm to the child is a likely result of the act or omission; or

(3) Consciously disregards an unjustifiable risk of physical injury or emotional harm to the child.

(c) Omission - A failure to act.

(d) Physical injury - Any bodily harm, including minor scrapes, cuts, and bruises. This includes any bodily harm resulting from the discipline of a child and any "substantial physical injury."

(e) Sexual conduct - Includes any of the following:

(1) Any touching of the anus, breast, or any part of the genitals of a child with intent to arouse or gratify the sexual desire of any person;

(2) Exposing the anus, breast, or any part of the genitals, knowing the child is present, with the intent to arouse or gratify the sexual desire of any person;

(3) Engaging a child in any activity that is obscene as defined in the Penal Code, §43.21;

(4) Requesting, soliciting, or compelling a child in any activity that is obscene as defined in the Penal Code, §43.21;

(5) In the presence of a child, engaging in or displaying any activity that is obscene as defined in the Penal Code, §43.21;

(6) In the presence of a child, requesting, soliciting, or compelling another person to engage in any activity that is obscene as defined in the Penal Code, §43.21; or

(7) The illegal or improper use of a child, which may or may not include sexual contact or touching, with intent to arouse or gratify the sexual desire of any person.

(f) Substantial emotional harm - An observable impairment in a child's psychological growth, development, or functioning that is significant enough to require treatment by a medical or mental health professional. Evidence that the emotional harm is substantial includes the nature of the act or omission, the age of the child, and/or the persistence of the symptoms. Substantial emotional harm is presumed when the act or omission is of a sexual nature, the child acts out sexually, or the child attempts suicide. A mental health professional does not have to determine that there is substantial emotional harm.

(g) Substantial physical injury - Bodily harm that warrants treatment by a medical professional, including dislocated, fractured, or broken bones; concussions; lacerations requiring stitches; second and third degree burns; and damage to internal organs. Evidence that physical injury is substantial includes the location and/or severity of the bodily harm and/or the age of the child.

§745.8557.What is abuse?

Abuse is any intentional, knowing, or reckless act or omission by someone working under the auspices of an operation that causes or may cause emotional harm or physical injury to, or the death of, a child that the operation serves. Intentional, knowing, or reckless acts and omissions include:

(1) Any act such as striking, shoving, shaking, or hitting a child, whether intended as discipline or not;

(2) Failure to make a reasonable effort to prevent abuse by another person;

(3) Causing, expressly permitting, or encouraging a child to use alcohol or a controlled substance as defined by Health and Safety Code, Chapter 481 (other than a prescription drug that is prescribed to the child and used as prescribed);

(4) Using alcohol or a controlled substance in a manner or to the extent that the use results in physical injury or emotional harm;

(5) Sexual conduct that constitutes the offense of indecency with a child as defined under Penal Code, §21.11, sexual assault as defined under Penal Code, §22.011, or aggravated sexual assault as defined under Penal Code, §22.021;

(6) Compelling or encouraging the child to engage in sexual conduct;

(7) Failure to make reasonable effort to prevent sexual conduct to a child;

(8) Causing, permitting, encouraging, engaging in, or allowing the photographing, filming, or depicting of the child if the person knows or should know that the resulting photograph, film, or depiction of the child is obscene as defined by Penal Code, §43.21, or pornographic; and

(9) Causing, permitting, encouraging, engaging in, or allowing a sexual performance by a child as defined by Penal Code, §43.25.

§745.8559.What is neglect?

Neglect is an act or omission that is a breach of a duty by a person working under the auspices of an operation that causes or may cause substantial emotional harm or substantial physical injury to a child. The breach of a duty includes:

(1) Failure to take an action that a reasonable member of that profession, reasonable caregiver, or reasonable person should take in the same situation;

(2) Taking an action that a reasonable member of that profession, reasonable caregiver, or reasonable person should not take in the same situation;

(3) Placing a child in or failing to remove him from a situation that a reasonable member of that profession, reasonable caregiver, or reasonable person should realize requires judgment or actions beyond the child's level of maturity, physical condition, or mental abilities;

(4) Leaving a child in a situation where a reasonable member of that profession, reasonable caregiver, or reasonable person should expect the child to be exposed to physical injury or emotional harm without arranging for necessary care for the child;

(5) Failure to seek, to obtain, or to follow through with medical care for a child;

(6) Failure to provide a child with food, clothing, and shelter necessary to sustain the life or health of the child;

(7) Placing a child in or failing to remove the child from a situation in which a reasonable member of that profession, reasonable caregiver, or reasonable person should know exposes the child to the risk of sexual conduct;

(8) A violation of any law, rule, or minimum standard that causes substantial emotional harm or substantial physical injury to a child;

(9) Repeated (two or more) violations of any law, rule, or minimum standard, after notice and an opportunity to correct the violation, that may cause substantial emotional harm or substantial physical injury to a child;

(10) Failure to comply with an individual treatment plan, plan of service, or individualized service plan that causes substantial emotional harm or substantial physical injury to a child; and

(11) Repeated failures (two or more) to comply with an individual treatment plan, plan of service, or individualized service plan, after notice and an opportunity to correct the failure, that may cause substantial emotional harm or substantial physical injury to a child.

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 January 25, 2002.

TRD-200200465

C. Ed Davis

Deputy Director, Legal Services

Texas Department of Protective and Regulatory Services

Proposed date of adoption: March 22, 2002

For further information, please call: (512) 438-3437