Subchapter F. CONTINUITY OF SERVICES--STATE MENTAL RETARDATION FACILITIES

The Texas Department of Mental Health and Mental Retardation (department) adopts amendments to §§412.253, 412.254, 412.259, 412.264 - 412.269, and 412.274 of Chapter 412, Subchapter F, governing continuity of services--state mental retardation facilities. Sections 412.253, 412.254, 412.264 - 412.269, and 412.274 are adopted with changes to the text as published in the December 7, 2001, issue of the Texas Register (26 TexReg 10014). The amendment to §412.259 is adopted without change to the text as published.

The amendments to §§412.253, 412.264 - 412.269, and 412.274 implement several of the provisions of Senate Bill 368, 77th Legislature (SB 368) that modified the permanency planning requirements contained in the Texas Government Code (TGC), Chapter 531, Subchapter D. An amendment to §412.265(a) implements a provision of SB 367, 77th Legislature, which modified TGC, §531.042, requiring that in addition to the individual, at least one family member of the individual, if possible, must be informed of all care and support settings for which the individual is eligible before the individual is placed in a care setting. The new requirement is addressed in an amendment to §412.265(a) that references the relevant provision in amendments to Chapter 415, Subchapter D governing diagnostic eligibility for services and supports--mental retardation priority population and related conditions, that are adopted elsewhere in this issue of the Texas Register . Other amendments to §412.265(a) and new (b) - (e) describe how interstate transfers are handled during the mental retardation authority (MRA) referral process and the review by the MRA's executive director or designee and the department's ombudsman.

The following changes have been made to the texts of §§412.253, 412.254, 412.264 - 412.269, and 412.274.

In §412.253, the term "natural support network," which is used in new language in §412.264(f)(2) and §412.274(c)(4)(B), is defined in new paragraph (27).

In §412.254, new subsection (c) is added in response to a recommendation by six commenters that the policy statement from TGC, §531.152, be included in this section. Subsequent subsections have been relettered.

In §412.264, subsection (b)(2) is revised to clarify that a family-based alternative will support a continued relationship between the individual and the family to the extent possible. New subsection (c) describes actions to be taken by an MRA to facilitate permanency planning. New subsections (e) - (g) replace proposed subsection (d) to provide a more detailed explanation of an MRA's responsibility for designating a volunteer advocate. Subsection (e) requires that the MRA inform an individual and LAR that they have the right to have a volunteer advocate, and that they may choose a person or have the MRA designate a person to serve as a volunteer advocate. Subsection (f) describes criteria for a volunteer advocate designated by an MRA at the request of an individual or LAR or when an individual's LAR cannot be located. Subsection (g) places certain requirements on an MRA if the MRA is unable to locate a volunteer advocate.

In §412.265, subsection (a) is revised to correct the inadvertent omission of the word "area" after "local service." Subsections (c)(1) - (2), (d), and (e) are revised to make the language consistent with that of other department rules relating to the same matters.

In §§412.266(j), 412.267(h), 412.268(i), and 412.269(n), the word "described" is substituted for "required" to be consistent with similar usage throughout the subchapter.

In §412.268(b), paragraph (13) is revised to correct a grammatical error and in paragraph 14, "minor" is substituted for "individual" to be consistent with usage throughout the section. Paragraph (15) is deleted because it duplicates paragraph (10); the subsequent paragraphs are renumbered. In new paragraph (15), "minor's" is substituted for "applicant's" to be consistent with usage throughout the section.

In §412.274, subsection (a) is revised to be consistent with the living options requirement in the department's ICF/MR Program rule by providing that living options must be discussed with the individual or LAR at least annually. In subsection (c), paragraph (3) is replaced with new paragraphs (3) - (5) to provide a more detailed explanation of the state MR facility's responsibility for designating a places certain requirements on a state MR facility if the state MR facility is unable to locate a volunteer advocate. Subsection (d)(1) and (2) is revised to clarify that a family-based alternative will support a continued relationship between the individual and the family to the extent possible and to increase the readability of the subsection.

A hearing to accept oral and written testimony from members of the public concerning the proposal was held on Monday, January 7, 2002, in Austin. Testimony was provided by a parent/guardian of a state MR facility resident, Fort Worth; Advocacy, Inc., Austin; Parent Association for the Retarded of Texas (PART), Austin; Texas Center for Disability Studies, Austin; The Texas Council for Community MHMR Centers, Austin; and Arc of Texas, Austin.

Written comments were submitted by two parent/guardians of state MR facility residents, one from Fort Worth and the other from Garland. Written comments also were received from the following advocacy/stakeholder organizations: Advocacy, Inc., Austin; Arc of Texas, Austin; Disability Policy Consortium (DPC), Austin; Institute for Disability Access, Austin; Parent Association for the Retarded of Texas (PART), Austin; Private Providers Association of Texas (PPAT), Austin; Texas Center for Disability Studies, Austin; Texas Council for Community MHMR Centers, Austin; and Texas Council for Developmental Disabilities (TCDD), Austin.

The following local mental retardation authorities submitted written comments: Austin Travis County MHMR Center, Austin; Lubbock Regional MHMR Center, Lubbock; and Texana MHMR Center, Rosenberg.

Three commenters requested that "individual and LAR" be changed to "individual or LAR" everywhere this phrase is used in the sections. The commenters stated that if an individual has an LAR, the LAR will make the decisions. The department responds that the individual needs to participate in service planning activities to the extent possible, even if the individual has an LAR. The department declines to make the recommended revisions.

Two commenters stated their opposition to the department's use of the ICAP (Inventory for Client and Agency Planning) to determine eligibility for admission to state MR facilities. The commenters stated that family members have found many errors in the assessments. The commenters asked for the elimination of rules and practices that inappropriately deny access to state MR facilities, and gave as examples the ICAP provision in §412.255 that prevents the admission of an individual who can be served in the community and the practice of moving individuals from state MR facilities to the community who do not have guardians and who do not wish to move. The department notes that the commenters' statements address issues that are beyond the scope of the proposed amendments.

Five commenters stated that a state MR facility should not be responsible for permanency planning for an individual residing there. The commenters stated that having a state MR facility perform this responsibility would constitute a conflict of interest and that the state MR facility will not devote the time and resources necessary to move an individual back into the family home or into a family-based alternative. Four commenters recommended that the local mental retardation authority (MRA) be responsible for permanency planning. One commenter recommended that an independent, community-based organization must be integrally involved in the on-going planning to ensure that all efforts are being made to transition the individual to the community. Another commenter stated that having the state MR facility responsible for permanency planning is a "fundamental, although not intentional in the beginning, flaw" in the process. The department appreciates the value of having an external entity be responsible for permanency planning for an individual residing in a state MR facility, and acknowledges that such a responsibility would be consistent with the role of the MRA. The department notes, however, that a state MR facility currently is required to incorporate permanency planning as an integral part of the individual program plan (IPP). The department further notes that new TGC, §531.153(d)(3), as added by SB 368, permits the department to entrust state MR facilities with this responsibility if the department engages in "other appropriate activities to minimize the potential conflicts of interest." The department explains that the state survey agency will be looking for evidence of a state MR facility's compliance with the permanency planning requirements in this subchapter and the ICF/MR Program rule, and that the state MR facility can be sanctioned for non-compliance. In addition, the potential for conflict of interest will be addressed during training sessions for MRA and program provider staff, surveyors, and stakeholders to be offered by THHSC with funding from a grant from the Texas Council for Developmental Disabilities. The department also notes that for an individual newly enrolling in the ICF/MR Program, the MRA is responsible for incorporating permanency planning as an integral part of the initial plan for services and supports.

Five commenters stated that a state MR facility should not be responsible for designating a volunteer advocate when an individual or LAR requests that the state MR facility designate a volunteer advocate or when an individual's LAR cannot be located. The commenters recommended that the MRA should be responsible for designating a volunteer advocate. The commenters further stated that a system must be established that permits advocacy organizations to assist in designating a volunteer advocate if an MRA can't identify one. The department appreciates the value of having an entity other than the state MR facility be responsible for designating a volunteer advocate if the individual or LAR requests that one be designated or if the LAR cannot be located, and acknowledges that such a responsibility would be consistent with the role of the MRA. The department notes that new language in §412.264(f) and §412.274(c)(4) describes criteria for a volunteer advocate designated by an MRA or a state MR facility, respectively, at the request of an individual or LAR or when an individual's LAR cannot be located. In addition, new §412.264(g) and §412.274(c)(5) places certain requirements on an MRA or program provider if the MRA or program provider, respectively, is unable to locate a volunteer advocate.

The same commenters recommended an MRA should make every effort to include an individual's family in permanency planning. The department agrees and notes that the IDT (Interdisciplinary Team), as defined in §412.253(17), always includes the individual and LAR. The MRA's IDT, which must recommend admission or commitment to a state MR facility, is required in §412.264(a)(1)(F) to recommend services that consider the individual's or LAR's interests, choices, and goals and, for the individual under 22 years of age, include permanency planning as a goal. The state MR facility's IDT is required in §412.274(a)(5) to determine whether or not the permanency planning goals for an individual under 22 years of age have been met. In addition, the department notes that §412.274(c) requires a state MR facility to ensure that the individual and LAR receive adequate notice of a meeting at which permanency planning and living options will be discussed, and make reasonable attempts to schedule the meeting at a time that is convenient for the LAR and those family members, friends, or other persons invited to attend by the individual or LAR.

Eight commenters requested that minimum standards be established for volunteer advocates. The commenters recommended that volunteer advocates must be knowledgeable of the purpose and intent of the permanency planning statutes and must subscribe to the policy that a child must be given a chance to live with a family as soon as possible. The commenters further recommended that volunteer advocates should be familiar with community services and supports. Three other commenters stated that a person who is biased against the admission of individuals to state MR facilities has a conflict of interest and must not be permitted to serve as a volunteer advocate. The commenters recommended that the Parent Association for the Retarded of Texas (PART) should be included in advocacy and guardianship activities involving individuals under 22 years of age who reside in institutions. One commenter said the minimum standards should be included either in a definition of "volunteer advocate" in §412.253 or in §412.264(d). The department has added criteria in §412.264(f) and §412.274(c)(4) for volunteer advocates designated by an MRA or state MR facility at the request of an individual or LAR or when an individual's LAR cannot be located. The department also notes that the criteria do not prohibit any single organization from offering representatives to serve as volunteer advocates, nor do the criteria favor any single organization.

Six commenters recommended that just as an employee of an MRA or state MR facility is not permitted to serve as a volunteer advocate for an individual for whom the MRA or state MR facility is conducting permanency planning, neither should the relative of such an employee be permitted to serve as a volunteer advocate. The department believes that the criteria for a volunteer advocate designated by an MRA or a state MR facility in §412.264(f) and §412.274(c)(4), respectively, address the commenters' concerns about potential conflicts of interest, and believes that a prohibition against a family member of an employee serving as a volunteer advocate would be difficult to enforce. The department declines to add the recommended requirement.

One commenter expressed an expectation that the department, in partnership with HHSC, would continue to provide leadership by establishing statewide assistance to MRAs and program providers who are asked by families to provide a volunteer advocate. The department agrees with the recommendation and has included language in §412.264(g) and §412.274(c)(5) that requires an MRA or state MR facility to request assistance from a statewide advocacy organization if the MRA or state MR facility cannot identify a volunteer advocate locally. If the statewide advocacy organization is not able to assist the MRA or state MR facility to identify a volunteer advocate, the MRA or state MR facility must document its efforts to identify a volunteer advocate.

A commenter offered support for the department's decision to assign permanency planning responsibilities for individuals residing in state MR facilities pending sufficient funding becoming available to support the assumption of these responsibilities by MRAs. The commenter stated that while assignment of these responsibilities to state MR facilities is not optimal by some standards, neither is the expectation that MRAs can carry out these responsibilities successfully without adequate funding. The commenter stated that the greater concern ahead is the education of families about the array of community-based services and supports and development of the service resources that will be necessary to fulfill the intent of SB 368. The department acknowledges the commenter's expression of support for the delegation of permanency planning responsibilities as described in the sections.

Six commenters stated that the sections must establish that the permanency planning requirement far exceeds simply putting a plan on paper. The commenters stated that permanency planning is a process that continues until family placement happens for an individual under 18 years of age or person-centered transition planning is realized for an individual 18-21 years of age. The commenters explained that the process requires on-going evaluation of an individual's need for supports and services, as well as continual communication with the individual's family. The commenters also stated that regardless of whether a child will return to the birth family or move to an alternate family, efforts should be made to keep the birth family involved with the child. The department believes that the process described in §419.222 of the department's ICF/MR Program rule, requires an ICF/MR, including a state MR facility, to do more than "put a plan on paper." The department also cites 42 CFR §483.440(f)(2) which requires an IPP to be reviewed at least annually and revised appropriately. For an MRA considering a request from an individual or LAR for admission to a state MR facility, the actions the MRA is required take in §412.264(c) to facilitate permanency planning results constitute more than putting a plan on paper. The department has revised §412.264(b)(2) and §412.274(d)(1)(B) and (2) to clarify that a family-based alternative will support a continued relationship between an individual and family to the extent possible.

Two commenters questioned the advantages of permanency planning. They stated that it is impossible to plan very far ahead for an individual because the individual's health and placement can change in a short time. The department responds that the permanency planning policy statement in TGC, §531.152, best describes the advantages of permanency planning when it states "a successful family is the most efficient and effective way" to meet the "basic needs of safety, security, and stability" for each individual under 22 years of age. The statute further states that "the state and local communities must work together to provide encouragement and support for well-functioning families" and ensure each individual under 22 years of age "receives the benefits of being a part of a successful permanent family as soon as possible."

Two commenters stated that foster care homes cannot provide the special medical care, training, and intensive therapy needed by many individuals with mental retardation and other medical and behavior problems. One commenter stated that the department would find it difficult to find enough good and dependable foster parents to care for the individuals under 22 years of age who will be denied admission to state MR facilities as a result of the proposed amendments. The commenter stated that foster homes must be monitored on a regular basis. The department acknowledges the commenters' concerns about foster care homes and state MR facility admission criteria, but notes that those comments are beyond the scope of the proposed amendments.

Three commenters stated that permanency planning denies an individual and LAR their right to freedom of choice between community programs and state MR facilities. The commenters stated that individuals under 22 years of age will be denied the specialized and protective care they could receive in a state MR facility even though they may need and want that type of care. Two commenters stated that permitting individuals and families to choose admission to a state MR facility could reduce the waiting list and help those individuals who can best be served in a state MR facility. The department acknowledges the commenters' statements concerning freedom of choice and state MR facility admissions, but notes that they are beyond the scope of the proposed amendments.

Concerning situations in which a child resides in a state MR facility in the local service area of an MRA other than the MRA in whose local service area the child's family lives, five commenters recommended that the rules should permit flexibility in determining which MRA should take the lead in coordinating activities to move the child back to the family home or into a family-based alternative. The commenters stated that the MRA for the local service area where the family lives should coordinate the activities in most cases. The commenters further stated if the family is not involved with the child, a family-based alternative should be sought and the MRA in whose local service area the child's family lives should not take the lead. The department acknowledges the commenters' concerns about which MRA should coordinate activities to move a child from a state MR facility, but notes that they are beyond the scope of the amendments. The department does note, however, that §§412.275 - 412.278, to which amendments were not proposed, address the issue of coordination between MRAs when an individual of any age will be moving from a state MR facility.

Five commenters stated that volunteer advocates should be protected from liability. The department responds that the statute does not address protection from liability for volunteer advocates and that, without statutory authority, the department cannot provide the protection by rule.

Two commenters recommended that the term "disabilities" in the definition of "family-based alternative" in §412.253(13) should be changed to "mental retardation or related conditions," because these are the only disabilities that are treated in Ifs/MR. The commenters stated that the use of the generic term "disabilities" will lose individuals with mental retardation by mixing them in with all the other disabilities. The two commenters also recommended that the definition of "permanency planning" in §412.253(29) be changed to specify that the focus of service planning must always start with the individual's needs and the choice of the individual or LAR, and that the definition of "planning team" in §412.253(30) be revised to specify that the team is organized "after the decision is made to seek community services by the individual or LAR." The department declines to revise the definitions of "family-based alternative" or "permanency planning" because these are definitions provided in SB 368 as TGC, §531.055(c)(2) and §531.151(4), respectively. The department also declines to revise the definition of "planning team" as requested because this term is not used in the sections that describe the process of identifying an alternative living arrangement for an individual residing in a state MR facility. The term is used only in §412.282, which describes a review process to be conducted by an MRA of an individual who moved from a state MR facility to an alternative living arrangement prior to September 1, 1997. No amendments were proposed for this section.

Two commenters stated that the definition of "interdisciplinary team (IDT)" in §412.253(17) should be changed to match the definition in the Persons with Mental Retardation Act, which does not say that a recommendation will address whether an individual is "best served in a facility or community setting." The commenters characterized the definition as just another example of the department's continued bias and attempts to prevent an LAR's "right to choice" when the LAR chooses admission of the individual to a state MR facility. The commenters further stated that "other concerned persons" may participate in the IDT only with the approval of the individual or LAR. Concerning the definition of "less restrictive setting" in §412.253(22), the commenters stated that the U.S. Supreme Court's ruling in Olmstead v. L.C. says that the "least restrictive setting" can be an institution. The department notes that the commenters' statements address issues that are beyond the scope of the proposed amendments.

Concerning §412.254(a), three commenters stated that the proposed rule gives only lip service to the right of choice for individuals and LARs. The commenters recommended that the proposal be rewritten to offer a service delivery system that is really balanced. Two commenters stated that the proposal was unacceptable and requested that it be rewritten to treat state MR facilities as equal in importance and desirability as community services. The department notes that the comments concern existing language to which no amendments had been proposed and declines to make the recommended changes.

Six commenters observed that the subsection in §412.254 that addressed permanency planning was proposed for deletion and stated that due to the difficulty the state has experienced in implementation of previous permanency planning legislation, that it is extremely important that a strong message be included in this section to explain the objectives of SB 368. The commenters recommended that the policy statement from TGC, §531.152 be included. The department agrees with the commenters and has incorporated the policy statement as new subsection (c).

Two commenters recommended several revisions to §412.254(c) and (d). The department notes that the comments concern existing language to which no amendments had been proposed and declines to make the recommended changes.

Two commenters questioned why §412.264(a)(1)(F) did not repeat the language from §412.254(e)(3)(A) about the choice of an individual and LAR being the dominant force in planning services and supports. The department notes that the comments concern existing language to which no amendments had been proposed and declines to make the recommended changes.

Two commenters stated that §412.264(b) effectively tells the LAR of an individual under 22 years of age to bring the individual home or "give them up." The commenters stated that the department expects that someone other than the LAR will provide an "enduring, positive relationship" for the individual, implying that the LAR doesn't love the individual enough to keep the individual at home. The commenters described this provision as a "huge insult" to LARs. The department responds that there are no provisions in either SB 368 or the proposed amendments that require a family to relinquish parental or guardianship rights if an individual moves into a family-based alternative. The department further states that if the MRA and state MR facility are unable to identify services and supports that will enable an individual to remain in the family home, the individual's LAR may choose a family-based alternative that will provide the individual with a family setting in which to live that meets the individual's "basic needs for safety, security, and stability" as described in the policy statement about permanency planning in TGC, §531.152. The department has revised §412.264(b)(2) to clarify that a family-based alternative will support a continued relationship between an individual and family to the extent possible.

Concerning §412.264(d)(2), two commenters stated that most families do not ask for residential placement outside the home until the situation becomes very difficult or impossible to handle. The commenters said it is unfair of the department to offer temporary placement of only six months for individuals under 22 years of age. The commenters stated that a resident of a state MR facility will be traumatized if forced to change living arrangements so soon. The commenters also stated that it is a known fact that individuals with mental retardation do not adapt to change easily. The department responds that SB 368 in new TGC, §531.159, requires that the admission to a state MR facility of an individual under 22 years of age must be limited to six months and that an six month extension must be approved by the commissioner or designee. The department declines to make the recommended revision.

Concerning §412.264(e), a commenter stated that requiring the family to be informed could result in significant delays in the provision of services to individuals whose family members or LARs cannot be located. The commenter stated that this process will result in additional costs to the MRA in staff time, mail, and certified letters. The commenter stated that many of the individuals going through this process do not have active family involvement and that a volunteer advocate would have to be designated. The commenter stated that the organizations that provide volunteer advocates are limited and have extensive waiting lists. The department notes that the requirement that a volunteer advocate be designated is mandated in SB 368 as new TGC, §531.156. The departments responds that if an MRA is unable to locate a volunteer advocate locally, the MRA must request assistance from a statewide advocacy organization, as described in new subsection (g).

Concerning §412.265, two commenters stated that an ordinary application for services in a state MR facility is a 15 page packet and is more difficult and complicated than the community packet of five pages. The department notes that the commenters' statements address issues that are beyond the scope of the proposed amendments.

Concerning §412.265(e), one commenter stated that the provisions regarding the ombudsman's review of a MRA IDT's recommendation regarding admission or commitment to a state MR facility still does not adequately address the issue that the MRA's IDT is required to recommend whether or not an individual should be admitted or committed to a state MR facility and what the MRA is supposed to do when the ombudsman overrules the MRA IDT's recommendation. The department responds that the comment is outside the scope of the proposed amendments, but notes that, as described in subsection (e)(3), if the ombudsman's written decision states that the processes described in this subchapter were not followed, the MRA must take the necessary steps to follow the processes.

Two commenters questioned why a copy of any will in which the applicant is named a devisee is required by §412.265(g)(10) to be included in the application packet for regular voluntary admission of an adult or the commitment of an adult or minor. The department explains that the listing in the rule was amended to be consistent with the listing of necessary documentation on the state MR facility application form. A copy of the will is necessary because it may impact the individual's future financial status and Medicaid eligibility.

Concerning §412.266(j), one commenter stated that approval and collaboration should occur before an individual under 22 years of age is admitted to a state MR facility, that three days afterward is too late. The commenter stated that individuals and their families/LAR can only make informed choices about services after discussion and coordination that occur before admission. One commenter stated the three days for making the notifications is an unreasonably short time period, especially given the new security issues raised by the Health Insurance Portability and Accountability Act (HIPAA). The commenter stated that e-mail and fax probably will not be the most secure means of notification and that land mail will not meet the timeframe consistently. The commenter recommended that program providers be permitted 10 days to accomplish the notifications. The department agrees with the commenter that discussion and collaboration are needed before a decision is made about appropriate services. The department notes that §412.264 and §412.265 require extensive involvement by an MRA to ensure that the most appropriate services and supports are provided for an individual. An individual can be admitted to a state MR facility only if the admission is recommended by an MRA's IDT. The department also notes that, for a minor, §412.157(c)(1) requires that the local Community Resource Coordination Group (CRCG) hold a staffing to consider service and support alternatives before admission to a state MR facility can be considered by the MRA's IDT. The department further states that the three day requirement to notify the MRA, CRCG, and school district or early childhood intervention program, as appropriate, is mandated by SB 368 in new TGC, §531.154.

Subchapter D. DIAGNOSTIC ELIGIBILITY FOR SERVICES AND SUPPORTS--MENTAL RETARDATION PRIORITY POPULATION AND RELATED CONDITIONS

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

The Texas Department of Mental Health and Mental Retardation (department) adopts amendments to §§419.203, 419.222, 419.244, 419.266, and 419.267 of Chapter 419, Subchapter E, concerning ICF/MR Programs, with changes to the text as published in the December 7, 2001, issue of the Texas Register (26 TexReg 10028). The amendments to §419.223 and §419.268 are adopted without changes to the published text.

The amendments to §§419.203, 419.222, 419.244, 419.266, and 419.267 implement several of the provisions of Senate Bill 368, 77th Legislature (SB 368) that modified the permanency planning requirements contained in the Texas Government Code (TGC), Chapter 531, Subchapter D. The amendments to §412.223 make the rule consistent with other department rules that specify the alternative living arrangements about which the individual and LAR will be informed. The amendments to §§419.266 - 419.268 reorganize the division to more clearly reflect the processes and types of actions taken by the department's sanction team.

The following changes have been made to the texts of §§419.203, 419.222, 419.244, 419.266, and 419.267.

In §419.203, two new terms and definitions are added--"actively involved" as paragraph (8) and "natural support network" as paragraph (35). After each, subsequent paragraphs are renumbered. The term "DPoC (directed plan of care)" in paragraph (17) is corrected to "DPoC (directed plan of correction)." In paragraph (40), "permanency planning review" is changed to "permanency planning review screen" to clarify that the term describes a screen in an electronic database on which permanency planning outcomes are reported.

In §419.222, subsection (a)(2) is revised to clarify that a family-based alternative will support a continued relationship between an individual and the individual's family to the extent possible. Subsection (b)(2) is revised to omit "age" before "18 to 22 years of age", and subsection (b)(5) is revised to specify that regular contact between an individual and life-long advocates and friends in the community will be encouraged if desired by the individual or LAR. Subsection (b)(6) is revised to specify that participation in IDT meetings by an individual's family members other than an LAR, life-long advocates, and friends in the community will be permitted if desired by the individual or LAR. Subsections (e) and (f) are revised to describe criteria for volunteer advocates designated by a program provider at the request of an individual or LAR or when an individual's LAR cannot be located. New subsection (g) places certain requirements on a program provider if the program provider is unable to locate a volunteer advocate. Subsequent subsections in §419.222 are relettered.

In §419.244, subsection (e)(4) is revised to replace "permanency planning review" with "permanency planning review screen" and to clarify that the information from that screen is to be submitted electronically to the department. New subsection (f) corrects an inadvertent omission by adding a description of certain elements of permanency planning that must be included in the initial plan for services and supports developed by an MRA; the new subsection parallels the provision for a program in §419.222(a)(2). New subsection (g) corrects a second inadvertent omission with the addition of a listing of actions an MRA must take to facilitate permanency planning during enrollment; the listing is similar to the listing for a program provider in §419.222(b). Subsections (h) and (i) are revised to describe criteria for a volunteer advocate designated by an MRA at the request of an individual or LAR or when an individual's LAR cannot be located. New subsection (j) places certain requirements on an MRA if the MRA is unable to locate a volunteer advocate. Subsequent subsections in §419.244 are relettered. Subsection (m)(4) is revised to clarify that an MRA must obtain approval from the commissioner or designee for an individual's admission to a facility. Subsection (n) is revised to replace "permanency planning review" with "permanency planning review screen".

The department has revised §419.266(a) and §419.267(e) and added new §419.266(c) to clarify that a directed plan of correction or a vendor hold will be imposed only on a facility that has been determined by the state survey agency and the sanction team to meet the criteria described in §419.266(a)(1), (2), (3), or (4). The phrase "has resulted in a regression in or loss of an individual's functional abilities or" is deleted from subsection (a)(2) as being unclear.

A hearing to accept oral and written testimony from members of the public concerning the amendments as proposed was held on Monday, January 7, 2002, in Austin. Testimony was provided by: the parent/guardian of a state MR facility resident, Fort Worth; Advocacy, Inc., Austin; Parent Association for the Retarded of Texas (PART), Austin; Texas Center for Disability Studies, Austin; The Texas Council for Community MHMR Centers, Austin; and Arc of Texas, Austin.

Written comments were submitted by two parent/guardians of state MR facility resident, one from Fort Worth and the other from Garland. Written comments also were received from the following advocacy/stakeholder organizations: Advocacy, Inc., Austin; Arc of Texas, Austin; Disability Policy Consortium (DPC), Austin; Institute for Disability Access, Austin; Parent Association for the Retarded of Texas (PART), Austin; Private Providers Association of Texas (PPAT), Austin; Texas Center for Disability Studies, Austin; Texas Council for Community MHMR Centers, Austin; Texas Council for Developmental Disabilities (TCDD), Austin.

The following local mental retardation authorities submitted written comments: Austin Travis County MHMR Center, Austin; Lubbock Regional MHMR Center, Lubbock; and Texana MHMR Center, Rosenberg. Written comments also were received from American Habilitation Services, Longview, and Calab, Inc., San Antonio.

A commenter stated that reviewing the proposed amendments would have been easier if the complete subchapter had been provided instead of just those sections with revisions. The department acknowledges the comment and notes that the proposal was formatted consistent with rules of the Texas Register .

Two commenters asked why the subchapter does not have a waiting list section as do the rules for the Home and Community-based Services (HCS) Program and Mental Retardation Local Authority (MRLA) Program. The department responds such a section is not necessary because an MRA is not required to maintain a waiting list for ICF/MR Program providers in the MRA's local service area, but is required to document the residential services and supports desired by an individual or LAR, as described in §415.159 of Chapter 415, Subchapter D, governing diagnostic eligibility for services and supports--mental retardation priority population and related conditions.

Three commenters requested that "individual and LAR" be changed to "individual or LAR" everywhere this phrase is used in the rules. The commenters stated that if the applicant has an LAR, the LAR will make decisions. The department responds that the applicant needs to participate in service planning activities to the extent possible, even if the applicant has an LAR. The department declines to make the recommended revisions.

Five commenters stated that a program provider should not be responsible for permanency planning for an individual served by that provider. The commenters stated that having a program provider perform this responsibility would constitute a conflict of interest and that the program provider will not devote the time and resources necessary to move an individual from the facility back into the family home or into a family-based alternative. Four commenters recommended that the local mental retardation authority (MRA) be responsible for permanency planning. One commenter recommended that an independent, community-based organization must be integrally involved in the on-going planning to ensure that all efforts are being made to transition the individual to the community. Another commenter stated that having the program provider responsible for permanency planning is a "fundamental, although not intentional in the beginning, flaw" in the process. The department appreciates the value of having an external entity be responsible for permanency planning for an individual residing in an ICF/MR, and acknowledges that such a responsibility would be consistent with the role of the MRA. The department notes, however, that a program provider currently is required to incorporate permanency planning as an integral part of the individual program plan (IPP). The department further notes that new TGC, §531.153(d)(3), as added by SB 368, permits the department to entrust program providers with this responsibility if the department engages in "other appropriate activities to minimize the potential conflicts of interest." The department explains that the state survey agency will be looking for evidence of a program provider's compliance with the permanency planning requirements set forth in this subchapter, and that the program provider can be sanctioned for non-compliance. In addition, the potential for conflict of interest will be addressed during training sessions for MRA and program provider staff, surveyors, and stakeholders to be offered by THHSC with funding from a grant from the Texas Council for Developmental Disabilities. The department also notes that for an individual newly enrolling in the ICF/MR Program, the MRA is responsible for incorporating permanency planning as an integral part of the initial plan for services and supports.

Five commenters stated that a program provider should not be responsible for designating a volunteer advocate when an individual or LAR requests that one be designated or when an individual's LAR cannot be located. The commenters further stated that a system must be established that permits advocacy organizations to assist in designating a volunteer advocate if an MRA can't identify one. The department appreciates the value of having an entity other than the program provider be responsible for designating a volunteer advocate if the individual or LAR requests that one be designated or if the LAR cannot be located, and acknowledges that such a responsibility would be consistent with the role of the MRA. The department notes that it has added language in §419.222(f) that describes criteria for a volunteer advocate designated by a program provider at the request of an individual or LAR or when an individual's LAR cannot be located. In addition, new §419.222(g) places certain requirements on a program provider if the program provider is unable to locate a volunteer advocate.

The same commenters recommended an MRA should make every effort to include an individual's family in permanency planning. The department responds that for an individual residing in a facility, §419.222(a) requires a program provider to incorporate permanency planning as an integral part of the IPP for each individual under 22 years of age, and that 42 CFR §483.440(c)(2) requires that the individual and LAR participate in developing the IPP, unless "participation is unobtainable or inappropriate." New §419.244(f) requires that for an applicant for ICF/MR services, the MRA must incorporate permanency planning as an integral part of the initial plan for services and supports that is developed as required by §415.159, which is the department's rule governing assessment of an individual's need for services and supports. Subsection (b) of that section requires the MRA to develop the plan in conjunction with the individual or LAR.

One commenter stated that requiring a private provider to be responsible for permanency planning for individuals under 22 years of age served by that provider will not create a conflict of interest on the part of the provider. The commenter stated that private providers are appropriately involved in the permanency planning process and will conduct the required activities in compliance with the applicable rules. The commenter stated that if a provider does not comply with the rules, mechanisms are in place to sanction the provider for non-compliance. The commenter further offered support for charging program providers and MRAs with certain respective responsibilities for permanency planning, noting that for individuals residing in facilities, the program provider usually knows the individual's and family's needs and desires best and supports the rights of the individual, parents, family, and LAR to choose the service option that best meets those needs and for which the individual is eligible. The department acknowledges the commenter's statements concerning conflict of interest issues, and support for the delegation of permanency planning responsibilities as described in the rules.

Seven commenters requested that minimum standards be established for volunteer advocates. The commenters recommended that volunteer advocates must be knowledgeable of the purpose and intent of the permanency planning statutes and must subscribe to the policy that a child must be given a chance to live with a family as soon as possible. The commenters further recommended that volunteer advocates should be familiar with community services and supports. Three other commenters stated that a person who is biased against the admission of individuals to state MR facilities has a conflict of interest and must not be permitted to serve as a volunteer advocate. The commenters recommended that the Parent Association for the Retarded of Texas (PART) should be included in advocacy and guardianship activities involving individuals under 22 years of age who reside in institutions. The department has added criteria in §419.222(f) and §419.244(g) for volunteer advocates designated by a program provider or MRA at the request of an individual or LAR or when an individual's LAR cannot be located. The department also notes that the criteria do not prohibit any single organization from offering representatives to serve as volunteer advocates, nor do the criteria favor any single organization.

Six commenters recommended that just as an employee of a program provider or MRA is not permitted to serve as a volunteer advocate for an individual for whom the program provider or MRA is conducting permanency planning, neither should the relative of such an employee be permitted to serve as a volunteer advocate. The department believes that the criteria for a volunteer advocate designated by a program provider or MRA added in §419.222(f) and §419.244(i), respectively, address the commenters' concerns about potential conflicts of interest, and believes that a prohibition against a family member of an employee serving as a volunteer advocate would be difficult to enforce.

One commenter expressed an expectation that the department, in partnership with HHSC, will continue to provide leadership by establishing statewide assistance to MRAs and program providers who are asked by families to provide a volunteer advocate. The department has included language in §419.222(g) and §419.244(h) that places certain requirements on a program provider or an MRA if the program provider or MRA is unable to locate a volunteer advocate.

A commenter offered support for the department's decision to assign permanency planning responsibilities to program providers pending sufficient funding becoming available to support the assumption of these responsibilities by the MRAs. The commenter stated that while assignment of these responsibilities to program providers is not optimal by some standards, neither is the expectation that MRAs can carry out these responsibilities successfully without adequate funding. The commenter stated that the greater concern ahead is the education of families about the array of community-based services and supports and development of the service resources that will be necessary to fulfill the intent of SB 368. The department acknowledges the commenter's expression of support for the delegation of permanency planning responsibilities as described in the rules.

One commenter urged the department to provide training for all stakeholders, in particular program providers, to ensure that they have a thorough understanding of permanency planning and the processes and procedures necessary to achieve compliance with the rule. The commenter stated that the Private Providers Association of Texas (PPAT) is willing to sponsor training, as needed. The commenter requested that the department address the availability, recruitment, and training of volunteer advocates, as well as resolution of communication issues between the individual, LAR, program provider, and MRA. The department responds that THHSC has received a grant from the Texas Council for Developmental Disabilities to hire two staff persons who will conduct training on the philosophy and process of permanency planning for MRA and program provider staff, program surveyors, and stakeholders. The department acknowledges the offer of PPAT's assistance in sponsoring training.

Six commenters stated that the rule must establish that the permanency planning requirement far exceeds simply putting a plan on paper. The commenters stated that permanency planning is a process that continues until family placement happens for an individua1 under 18 years of age or person-centered transition planning is realized for an individual 18-21 years of age. The commenters explained that the process requires on-going evaluation of an individual's need for supports and services, as well as continual communication with the individual's family. The commenters also stated that regardless of whether a child will return to the birth family or move to an alternate family, efforts should be made to keep birth family involved with the child. The department believes that the process as described in §419.222 for program providers and §412.244 for MRAs requires more than "putting a plan on paper." The department also cites 42 CFR §483.440(f)(2) which requires an IPP to be reviewed at least annually and revised appropriately. The department has revised §412.222(a)(2) and added new §419.244(f)(2) to clarify that a family based alternative will support a continued relationship between an individual and family to the extent possible.

Two commenters questioned the advantages of permanency planning. They stated that it is impossible to plan very far ahead for any individual, because the individual's health and placement can change in a short time. The department responds that the permanency planning policy statement in TGC, §531.152, best describes the advantages of permanency planning when it states "a successful family is the most efficient and effective way" to meet the "basic needs of safety, security, and stability" for each individual under 22 years of age. The statute further states that "the state and local communities must work together to provide "encouragement and support for well-functioning families" and ensure each individual under 22 years of age "receives the benefits of being a part of a successful permanent family as soon as possible."

Two commenters stated that foster care homes cannot provide the special medical care, training, and intensive therapy needed by many individuals with mental retardation and other medical and behavior problems. One commenter stated that the department would find it difficult to find enough good and dependable foster parents to care for the individuals under 22 years of age who will be denied admission to state MR facilities as a result of the proposed amendments. The commenter stated that foster homes must be monitored on a regular basis. The department acknowledges the commenters' concerns about foster care homes and admission criteria for state MR facilities, but notes that those comments are beyond the scope of the proposed amendments. The department states that admission criteria and processes for admission to a state MR facility are addressed in Chapter 412, Subchapter F, governing continuity of services--state MR facilities.

Three commenters stated that permanency planning denies an individual and LAR their right to freedom of choice between community programs and state MR facilities. The commenters stated that individuals under 22 years of age will be denied the specialized and protective care they could receive in a state MR facility even though they may need and want that type of care. Two commenters stated that permitting individuals and families to choose admission to a state MR facility could reduce the waiting list and help those individuals who can best be served in a state MR facility. The department acknowledges the commenters' statements concerning freedom of choice and state MR facility admissions, but notes that they are beyond the scope of the proposed amendments. The department states that admission criteria and process for admission to a state MR facility are addressed in Chapter 412, Subchapter F, governing continuity of services--state MR facilities.

Concerning situations in which a child resides in an ICF/MR in the local service area of an MRA other than the MRA in whose local service area the child's family lives, five commenters recommended that the rules should permit flexibility in determining which MRA should take the lead in coordinating activities to move the child back to the family home or into a family-based alternative. The commenters stated that the MRA for the local service area where the family lives should coordinate the activities in most cases. The commenters further stated if the family is not involved with the child, a family-based alternative should be sought and the MRA in whose local service area the child's family lives should not take the lead. The department acknowledges the commenters' concerns about which MRA should coordinate activities to move a child from a facility, but notes that they are beyond the scope of the amendments. The department does note, however, that §419.223(b) - (c), to which amendments were not proposed, addresses the issue of coordination between MRAs when an individual of any age will be moving from a facility.

Five commenters stated that volunteer advocates should be protected from liability. The department responds that SB 368 does not provide protection from liability for volunteer advocates and that, without statutory authority, the department cannot provide such protection by rule.

One commenter offered support to those individuals, parents, and LARs who choose a natural or "alternative" family over an institutional setting and believes that private providers and MRAs will assist them to obtain their choice. The commenter also stated that the choice by an individual, parent, or LAR of an institutional setting should be respected. The department acknowledges the commenter's support of the right to choice for individuals and LARs.

One commenter stated that the new permanency planning requirements such as the development, implementation, and monitoring of the plan, notification requirements, and requesting initial approval and continued approval every six months will result in increased costs for program providers as well as for MRAs. The department does not believe that the costs a program provider or an MRA will incur as a result of implementing the additional requirements are measurable. The department does note, however, that program providers currently are required to incorporate permanency planning in the IPP.

Two commenters recommended that the term "disabilities" in the definition of "family-based alternative" in §419.203(19) should be changed to "mental retardation or related conditions," because these are the only disabilities that are treated in ICFs/MR. The two commenters also recommended that the definition of "permanency planning" in §419.203(37), be changed to specify that the focus must always start with the individual's needs and the choice of the individual or LAR. The department declines to revise either definition because these are definitions provided in SB 368 as TGC, §531.055(c)(2) and §531.151(4), respectively.

Concerning §419.203(38), two commenters recommended that "permanency planning review" be used only to describe the process of conducting permanency planning and not the screen in an electronic database on which the permanency planning outcomes are reported. One commenter cautioned that the generic lists provided by CARE should not become a substitute for the permanency planning process that is intended to work on behalf and in best interest of a child. The department agrees and has changed the term to "permanency planning review screen." The department also states that the permanency planning process as described in §419.222 requires the MRA or program provider to consider the unique needs of the individual under 22 years of age and the natural supports and strengths of the family and individual. The department further notes that language similar to that in §419.222(a) and (b) has been added as new §419.244(f) and (g) to provide guidelines for MRAs during the enrollment process for an individual under 22 years of age. The department stresses that the permanency planning review screen is to be completed at the conclusion of the planning process and not as a substitute for planning.

A commenter noted that §419.222 does not address additional requirements, if applicable, for children under 10 years of age. The department responds that SB 368 does not specify additional permanency planning requirements for children under 10 years of age.

Two commenters stated that §419.222 effectively tells the LAR of an individual under 22 years of age to bring the individual home or "given them up." The commenters stated that the department expects that someone other than the LAR will provide an "enduring, positive relationship" for the individual, implying that the LAR doesn't love the individual enough to keep the individual at home. The commenters described this provision as a "huge insult" to LARs. The department responds that there are no provisions in either SB 368 or the rule amendments that require a family to relinquish parental or guardianship rights if an individual moves into a family-based alternative. The department further states that if the MRA and program provider are unable to identify services and supports that will enable the family to keep the individual in the family home, the individual's LAR may choose a family-based alternative that will provide the individual with a family setting in which to live that meets the individual's "basic needs for safety, security, and stability" as described in the policy statement about permanency planning in TGC, §531.152. The department also explains that §419.222(a)(2) is revised to emphasize that the family members of an individual living in a family-based alternative will be supported in continuing their relationships with the individual to extent possible.

The same commenters stated that §419.222(b)(5) and (6) must state that contact with an individual by life-long advocates and friends in the community and participation in IDT meetings by those persons will be permitted only if desired by the individual or LAR. The department responds that the language has been revised as recommended.

Two commenters requested that §419.222(b)(7) be revised to require that a copy of the IPP must be provided to the individual or LAR. The department responds that the Code of Federal Regulations, Title 42, §483.448(c)(7) requires a facility to provide a copy of the IPP to the individual and LAR. The requirement for a facility to provide a copy of the IPP to the MRA is in addition to the requirements in the federal regulations.

Concerning the requirement in §419.222(c) that within three days of admitting an individual under 22 years of age the program provider must notify the local MRA, the community resource coordination group for the county in which the individual's parent or guardian lives, and either the local school district or the local early childhood intervention program, two commenters stated that this does not allow sufficient time to complete the necessary paperwork. One commenter stated this is an unreasonably short time period, especially given the new security issues raised by the Health Insurance Portability and Accountability Act (HIPAA). The commenter stated that e-mail and fax probably will not be the most secure means of notification and that land mail will not meet the timeframe consistently. The commenter recommended that program providers be permitted 10 days to accomplish the notifications. Another commenter noted that the requirement does not specify working or calendar days. The department responds that SB 368 requires in new TGC, §531.154(a) that the notifications are to be made by the program provider "no later than the third day after the date a child is initially placed in an institution." The department notes day means calendar day as defined in §419.203(14).

A commenter stated that the requirement that the CRCG be notified for any individual under 22 years of age who is placed in an ICF/MR is appropriate but may overwhelm the CRCG as currently structured. The department acknowledges the commenter's concerns but notes that SB 368 in new TGC, §531.154(3) requires that the CRCG be notified of such admissions.

Concerning §419.222(e), which addresses the designation of a volunteer advocate for an individual under 22 years of age, two commenters asked who is responsible for designating the volunteer advocate. Another commenter stated that requiring the program provider to designate a volunteer advocate is an unrealistic expectation due to lack of people willing to serve as volunteer advocates. The department responds that the program provider is responsible for designating a volunteer advocate for an individual residing in the program provider's facility. The department has revised subsection (e) to clarify that the program provider must designate the volunteer advocate if the individual or LAR requests that one be designated or if the individual's LAR cannot be located. The department has added language to subsection (f) that provides guidance on the selection of a volunteer advocate by the program provider. Subsection (g) places certain requirements on a program provider if the program provider is unable to locate a volunteer advocate. The department notes that the requirement for designation of a volunteer advocate is contained in SB 368 as new TGC, §531.156. The department also notes that prior to an MRA's enrollment of an individual in the ICF/MR Program, the MRA is required in §419.244(h) to inform the individual and LAR that they may request a volunteer advocate to assist in permanency planning. Subsection (i) provides guidance on the selection of a volunteer advocate by the MRA. Subsection (j) provides guidance to the MRA if a volunteer advocate cannot be found locally.

Concerning the requirement in §419.222(g) that the admission of an individual under 22 years of age is temporary for six months and must be approved every six months, a commenter stated that this represents a paperwork burden for the program provider. The commenter stated that since permanency planning is addressed by the MRA in service planning prior to enrollment and if long-term placement in an ICF/MR is the choice, then additional paperwork should not be required. Another commenter stated that the requirement will delay admissions and will have a potential negative financial impact on a program provider's operations. The department responds that this is a requirement mandated in SB 368 as new TGC, §531.159.

Concerning §419.244(e), a commenter stated that if an individual has not had a primary physician prior to enrollment then 15 days may not be an adequate time to have a primary physician examine the individual and sign the MR/RC Assessment. The commenter stated that this may lead to the use of emergency rooms, which is not a good practice. The department notes that the commenter's statement addresses an issue that is beyond the scope of the proposed amendments.

A commenter stated that §419.244(e)(4) is not specific about submission timeframes for the Permanency Planning Review in CARE but the assumption is that it is required to occur before the individual is admitted to facility. The commenter stated that permitting a program provider and MRA to complete permanency planning within 15 days after admission would facilitate timely admissions. The commenter recommended that the rule should be revised to permit the MRA's responsibilities to be completed by either the admitting MRA of the MRA in whose local service area the ICF/MR is located. The department responds that permanency planning is intended by SB 368 as a tool to help an MRA and the individual's family plan for the individual to return to the family home. The department further notes that SB 368 in new TGC, §531.159(b) requires the commissioner or designee to approve the admission of an individual to a facility.

Concerning §419.244(m), a commenter stated that if the MRA determines during intake that only ICF/MR services are available, the MRA should obtain approval from the commissioner or designee for the individual's admission. The department acknowledges the comment and has clarified the requirement in subsection (m).

A commenter stated that §419.244(m)(2) would mean that children who are eligible through the Medicaid Assistance Only Office would be denied services as their SSI eligibility could not be determined before admission. The commenter stated that for these children, due to family income, the SSI determination before admission will result in an ineligible determination. The department acknowledges the concerns expressed by the commenter and notes that the comments are beyond the scope of the proposed amendments.

Concerning §419.244(m)(4), a commenter stated that permanency plans currently do not have to be approved by the department, and questioned what the rationale was for this requirement. The department clarifies first that neither the current rule or the amendments requires a separate "permanency plan;" instead, the rule requires that permanency planning outcomes must be incorporated as an integral part of the initial plan for services and supports. Second, the department clarifies that the commissioner or designee must approve not a "permanency plan" but the admission of the individual to a facility based on information submitted as required in subsection (d)(4). Finally, the department explains that SB 368 requires in new TGC, §531.159(b), that the admission of an individual under 22 years of age to a facility must be approved by the department's commissioner or designee.

Two commenters stated that the amendments to §419.266 have expanded the department's ability to impose a directed plan of correction (DPoC), a vendor hold, or both to include situations in which a program provider is found to be out of compliance with only one of the 489 federal ICF/MR standards of participation (SoPs). One commenter characterized this as an excessively punitive sanction for a minor contract violation. The department responds that §419.266(a)(1) - (4) requires that before a sanction is imposed not only must the state survey agency determine a program to be out of compliance with an SoP or a federal ICF/MR condition of participation (CoPs), but the department's sanction team must determine that the program provider's failure to meet such SoPs or CoPs had a significant repercussion. For example, subsection (a)(1) requires that the program provider's failure to meet an SOP or CoP must have "resulted in or may result in serious injury to or death of an individual residing in the program provider's facility." The department believes the rule outlines conditions for sanctions which constitute considerably more than a "minor contract violation" and that the imposition of a DPoC, a vendor hold, or both under the circumstances described in §419.266(a)(1), (2), (3), and (4) is not an excessively punitive sanction.

One commenter stated that the amendments to §419.266 allow the department to impose a vendor hold on multiple facilities owned by a program provider for minor contract violations. The department has revised the language of §419.266(a) and §419.267(e) and added new §419.266(c) to clarify that the department will impose a DPoC or vendor hold only on a facility that has been determined by the state survey agency and the sanction team to meet the criteria described in §419.266(a)(1), (2), (3), or (4).

One commenter stated that the amendments do not provide adequate due process because the program provider has no mechanism to appeal the merits of a cited deficiency, the components of a resulting DPoC, or a vendor hold until after a vendor hold is imposed. The department responds that §419.267(b) allows a program provider the opportunity to submit written recommendations to the department regarding the content of the DPoC. Once a vendor hold is imposed the program provider may request a hearing. The department believes that the due process procedures provided by the rule are appropriate and declines to change the rule provisions.

One commenter stated the phrase "a regression in or loss of an individual's functional abilities" used in 419.266(a)(2) is not defined and therefore, could be applied arbitrarily by the department. The commenter requested that the department clarify the meaning of this phrase. The department has determined that the meaning of the phrase cited by commenter is not clear and has deleted the language.

One commenter recommended that the proposed amendments to Division 7 governing provider agreement sanctions be withdrawn and a workgroup formed to further investigate the implementation of contract sanctions. The department does not believe that such a workgroup is necessary and declines to withdraw the proposed amendments for reasons given elsewhere in this preamble.