TITLE 1.ADMINISTRATION

Part 15. TEXAS HEALTH AND HUMAN SERVICES COMMISSION

Chapter 355. MEDICAID REIMBURSEMENT RATES

Subchapter C. REIMBURSEMENT METHODOLOGY FOR NURSING FACILITIES

1 TAC §355.306

The Texas Health and Human Services Commission (HHSC) proposes to amend §355.306, concerning cost finding methodology, in its Medicaid Reimbursement Rates chapter. The purpose of the amendment is to excuse providers from completing a cost report if the report will not be used in the reimbursement determination database. The amendment deletes obsolete language, replaces references to the Texas Department of Human Services (DHS) with references to HHSC, and broadens the definition of time frames from 30 days to either 30 days or one entire calendar month.

Don Green, Chief Financial Officer, has determined that for the first five-year period the proposed section will be in effect, there will be no fiscal implications for state or local government as a result of enforcing or administering the section.

Commissioner Don Gilbert has determined that for each year of the first five years the section is in effect, the public benefit anticipated as a result of adoption of the proposed section will be the elimination of needless paperwork for providers, the removal of obsolete language, the updating of agency references, and the broadening of time frame definitions. There will be no effect on small or micro businesses as a result of enforcing or administering the section, because the proposal eliminates a requirement for nursing facility (NF) providers, that will reduce paperwork for both large NF chains and independently operated NFs. There is no anticipated economic cost to persons who are required to comply with the proposed section. There is no anticipated effect on local employment in geographic areas affected by this section.

Questions about the content of this proposal may be directed to Pam McDonald at (512) 438-4086 in HHSC's Rate Analysis section. Written comments on the proposal may be submitted to Supervisor, Rules and Handbooks Unit-146, Texas Department of Human Services E-205, P.O. Box 149030, Austin, Texas 78714-9030, within 30 days of publication in the Texas Register .

For further information regarding the proposal or to make the proposal available for public review, contact local offices of DHS or Carolyn Pratt at (512) 438-4057 in HHSC's Rate Analysis section.

The amendment is proposed under the Texas Government Code, §531.033, which authorizes the commissioner of HHSC to adopt the rules necessary to carry out the commission's duties; and under Texas Government Code §531.021(b), which establishes HHSC as the agency responsible for adopting rules governing the determination of fees, charges, and rates for medical assistance payments under Chapter 32 of the Human Resources Code.

The amendment implements the Government Code, §§531.033 and 531.021(b).

§355.306.Cost Finding Methodology.

(a) Providers excused from completing a cost report. Providers are excused from completing a cost report if:

(1) the cost report would represent costs accrued during a time period immediately preceding a period of decertification, if the decertification period was greater than either 30 calendar days or one entire calendar month.

(2) the cost report would be a final cost report (due to a change of ownership or if the facility no longer contracts to serve Medicaid clients) and one of the following applies:

(A) the final cost-reporting period would end after more than 30 calendar days, or more than one entire calendar month before the end of the facility's cost report fiscal year, during the reporting period in question; or

(B) the Texas Health and Human Services Commission (HHSC), or its designee, has excused the provider from submitting a final cost report because:

(i) the report would be due before the appropriate cost report form was finalized, which would result in the final cost report being completed on an inappropriate cost report form; or

(ii) the facility was controlled by at least two different owners during a single calendar year and each owner would otherwise have submitted a cost report with an ending date that fell within that calendar year.

(3) the cost-reporting period would be less than or equal to 30 calendar days or one entire calendar month.

(b) [ (a) ] Exclusion of and adjustments to certain reported expenses. Providers are responsible for eliminating unallowable expenses from the cost report. HHSC [ The Texas Department of Human Services (DHS) ] reserves the right to exclude any unallowable costs from the cost report and to exclude entire cost reports from the reimbursement determination database if there is reason to doubt the accuracy or allowability of a significant part of the information reported.

(1) Cost reports included in the database used for reimbursement determination.

(A) Individual cost reports will not be included in the database used for reimbursement determination if:

[ (i) the cost report represents costs accrued during a time period immediately preceding a period of decertification where the decertification was greater than 30 calendar days;]

[ (ii) the cost report is a final cost report (due to a change of ownership or the facility no longer contracting to serve Medicaid clients) and one of the following applies:]

[ (I) the final cost reporting period ended more than 30 days before the end of the facility's cost report fiscal year during the reporting period in question; or]

[ (II) the final cost report was due before DHS finalized the appropriate cost report form and hence the final cost report was completed on an inappropriate year's cost report form; or]

[ (iii) the cost reporting period is less than or equal to 30 calendar days.]

[ (B) In addition to the reasons for excluding a cost report from the reimbursement determination database specified in subparagraph (A) of this paragraph, individual cost reports may not be included in the database used for reimbursement determination if: ]

(i) there is reasonable doubt as to the accuracy or allowability of a significant part of the information reported; or

(ii) an auditor determines that reported costs are not verifiable.

[ (C) In the event that a facility is controlled by different owners during a single calendar year and each owner submits a cost report with an ending date that falls within that calendar year and neither subparagraph (A) nor (B) of this paragraph preclude the use of either cost report, the cost report representing the most recent time period ending in the calendar year will be used in the reimbursement database.]

(B) [ (D) ] In the event that all cost reports submitted for a specific facility are disqualified through the application of subparagraph (A)(i) and/or (ii) [ (A) and/or (B) ] of this paragraph, the facility will not be represented in the reimbursement database for the cost report year in question.

(2) Adjustments and exclusions of cost report data include, but are not necessarily limited to:

[ (A) Revenue offsets.]

[ (i) For the 1995 and 1996 cost reports, expenses incurred from operations not associated with providing contracted services are unallowable for Medicaid cost reporting purposes and must be excluded from the cost report by the provider. These types of expenses include costs related to meals sold to employees or guests, non-medical rentals, barber and beauty shop operations, canteen and gift shops, vending machines, and any other non-contract related activities. Interest income, derived from nursing facility operations, with the exception of interest income from funded depreciation accounts, qualified pension funds, and debt service reserve funds required by non-related party lenders, is to be offset against working capital interest expense, not to exceed total working capital interest costs. Providers' central office operations must also comply with this interest income offset. Costs incurred and revenues accrued for providing ancillary services to Non-Medicaid Only residents are unallowable for Medicaid cost reporting purposes and must be excluded from the cost report by the provider. Ancillary refers to any service for which a separate charge is customarily made in addition to the routine daily service charge. Non-Medicaid Only residents refers to nursing facility residents who are eligible for payments for ancillary services from another source such as private pay, private insurance, Veterans Administration, and Medicare (including Medicaid Qualified Medicare Beneficiary (MQMB) and Dual Eligible (Medicare/Medicaid)) residents.]

[ (ii) Beginning with the 1997 cost report data, providers must complete and submit cost reports in accordance with §355.103(b)(15)(D) and §355.104 of this title (relating to Specifications for Allowable and Unallowable Costs, and Revenues).]

(A) [ (B) ] Fixed capital asset costs.

(i) HHSC [ DHS ] staff determine fixed capital asset costs as detailed in this section.

(ii) Fixed capital asset costs are reimbursed in the form of a use fee calculated as described in §355.307 of this title (relating to Reimbursement Setting Methodology). The following fixed capital charges are excluded from the reimbursement base:

(I) building and building equipment depreciation and lease expense;

(II) mortgage interest;

(III) land improvement depreciation; and

(IV) leasehold improvement amortization.

(B) [ (C) ] Limits on other facility and administration costs. To ensure that the results of HHSC's [ DHS's ] cost analyses accurately reflect the costs that an economic and efficient provider must incur, HHSC [ DHS ] may place upper limits or caps on expenses for specific line items and categories of line items included in the rate base for the administration and facility cost centers. HHSC [ DHS ] sets upper limits at the 90th percentile in the array of all costs per unit of service or total annualized cost, as appropriate for a specific line item or category of line item, as reported by all contracted facilities, unless otherwise specified. The specific line items and categories of line items that are subject to the 90th percentile cap are:

(i) total buildings and equipment rental or lease expense;

(ii) total other rental or lease expense for transportation, departmental, and other equipment;

(iii) building depreciation;

(iv) building equipment depreciation;

(v) departmental equipment depreciation;

(vi) leasehold improvement amortization;

(vii) other amortization;

(viii) total interest expense;

(ix) total insurance for buildings and equipment;

(x) facility administrator salary, wages, and/or benefits with the cap based on an array of nonrelated-party administrator salaries, wages, and/or benefits;

(xi) assistant administrator salary, wages, and/or benefits with the cap based on an array of nonrelated-party assistant administrator salaries, wages, and/or benefits;

(xii) facility owner, partner, or stockholder salaries, wages, and/or benefits (when the owner, partner, or stockholder is not the facility administrator or assistant administrator), with the cap based on an array of nonrelated-party administrator salaries, wages, and/or benefits;

(xiii) other administrative expenses including the cost of professional and facility malpractice insurance, advertising expenses, travel and seminar expenses, association dues, other dues, professional service fees, management consultant fees, interest expense on working capital, management fees, other fees, and miscellaneous office expenses; and

(xiv) total central office overhead expenses or individual central office line items. Individual line item caps are based on an array of all corresponding line items.

(C) [ (D) ] Occupancy adjustments. HHSC [ DHS ] adjusts the facility and administration costs of providers with occupancy rates below a target occupancy rate. The target occupancy rate is the lower of:

(i) 85%; or

(ii) the overall average occupancy rate for contracted beds in facilities included in the rate base during the cost reporting periods included in the base.

(D) [ (E) ] Cost projections. HHSC [ DHS ] projects certain expenses in the reimbursement base to normalize or standardize the reporting period and to account for cost inflation between reporting periods and the period to which the prospective reimbursement applies as specified in §355.108 of this title (relating to Determination of Inflation Indices).

(3) When material pertinent to proposed reimbursements is made available to the public, the material will include the number of cost reports eliminated from reimbursement determination for the reason stated in paragraph (1)(A)(i) [ (1)(B)(i) ] of this subsection.

(c) [ (b) ] Reimbursement determinations and allowable costs. Providers are responsible for reporting only allowable costs on the cost report, except where cost report instructions indicate that other costs are to be reported in specific lines or sections. Only allowable cost information is used to determine recommended reimbursement. HHSC [ DHS ] excludes from reimbursement determinations any unallowable expenses included in the cost report and makes the appropriate adjustments to expenses and other information reported by providers.

(d) [ (c) ] General information. In addition to the requirements of this section, cost reports [ pertaining to provider's fiscal years ending in calendar year 1995 and subsequent years ] will be governed by the information in §355.101 of this title (relating to Introduction), §355.102 of this title (relating to General Principles of Allowable and Unallowable Costs), §355.103 of this title (relating to Specifications for Allowable and Unallowable Costs), §355.104 of this title (relating to Revenues), §355.105 of this title (relating to General Reporting and Documentation Requirements, Methods, and Procedures), §355.106 of this title (relating to Basic Objectives and Criteria for Audit and Desk Review of Cost Reports), §355.107 of this title (relating to Notification of Exclusions and Adjustments), §355.108 of this title (relating to Determination of Inflation Indices), §355.109 of this title (relating to Adjusting Reimbursement When New Legislation, Regulations, or Economic Factors Affect Costs), and §355.110 of this title (relating to Informal Reviews and Formal Appeals). [ Cost reports pertaining to providers' fiscal years ending in calendar year 1997 and subsequent years will be governed by the information in §355.104 of this title (relating to Revenues). ]

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 April 19, 2002.

TRD-200202440

Marina Henderson

Executive Deputy Commissioner

Texas Health and Human Services Commission

Earliest possible date of adoption: June 2, 2002

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

Chapter 381. GUARDIANSHIP SERVICES

Subchapter D. STANDARDS FOR GUARDIANSHIP PROGRAMS

The Health and Human Services Commission (HHSC) proposes new subchapter D, Standards for Guardianship Services, Divisions 1 through 4, §§381.301, 381.303, 381. 305; §§381.315, 381.317, 381.319, 381.321, 381.323, 381.325; 381.331, 381.333, 381.335, 381.337, 381.339; and §§381.345, 381.347, 381.349, 381.351, 381.353, 381.355, 381.357, 381.359, 381.361, 381.363, 381.365, 381.367. Proposed new Subchapter D sets forth the minimum standards for local guardianship programs. The proposed standards were developed with the advice of the Guardianship Advisory Board, under Chapter 531, Government Code, and with input from providers of guardianship services, both public and private.

Division 1, General, of the proposed new subchapter contains §§381.301, 381.303 and 381. 305. Section 381.301 sets forth the purposes of the proposed standards. Section 381.303 addresses the applicability of and compliance with the proposed new standards. Section 381.305 explains that programs that do not certify compliance with Chapter 381 will not be eligible for grant funding under Chapter C of Chapter 381 or for technical assistance from HHSC's Guardianship Alliance of Texas. Division 2 concerns the administration and fiscal management of guardianship programs and addresses their organizational structure in §381.315, fiscal responsibilities in §381.317, budgets in §381.319, insurance requirements in §381.321, guardianship fees in §381.323, and guardianship bonds in §381.325. Division 3 concerns management of guardianship program personnel. Section 381.331 explains that a guardianship program may not shift its legal liability to an individual employee or volunteer, except as allowed by law. Section 381.333 provides for criminal background checks for all employees and volunteers. Under §§381.335 and 381.337, guardianship programs must develop and maintain policies and procedures that insure the confidentiality of client information and that require ongoing supervision of all employees and volunteers who provide services to clients. Section 381.339 states the goal of obtaining community involvement in guardianship programs

Division 4 concerns client services. Section 381.345 requires guardianship programs to consider less restrictive alternatives to guardianship when it is in the best interests of the client. Under §381.347, guardianship programs must provide adequate levels of services to all clients. Section 381.349 addresses the role of volunteers. Staffing and training requirements are set forth in §§381.351 and 381.353. Section 381.355 addresses conflicts of interest. Section 381.357 requires guardianship programs to develop procedures or guidelines for referrals and eligibility for services. Section 381.357 also requires guardianship programs to assess a client as soon as possible after a referral into the program. Section 381.359 requires that services for clients be provided as soon as possible and that clients be prioritized based, in part, on the risk to the client of delaying services. Section 381.359 also requires a policy that individuals on waiting lists be reassessed at frequent intervals. Section 381.361 discusses a guardianship program's responsibility for burial or cremation. Sections 381.363, 381.365, and 381.367 address caseload evaluation and monitoring and the development for clients of personal and financial care plans.

Don Green, Chief Financial Officer, has determined that for the first five years the rules are in effect, there will be no additional cost to state or local governments as a result of administering and enforcing the proposed new rules. There will be no adverse affect on small or large businesses. The proposed section will not result in additional costs to persons required to comply with the proposed rules other than the costs associated with criminal background checks on the staff and volunteers of local guardianship programs. The rules do not have any anticipated adverse affect on small or micro-businesses. The new subchapter will not affect local employment.

Kathleen Anderson, Director, Guardianship Alliance of Texas, HHSC, has determined that for each of the first five years the rules are in effect, the public benefits from the adoption of the proposed rules are enhanced protections for incapacitated persons in local guardianship programs and increased accountability of local guardianship programs.

HHSC has determined that the section is not a "major environmental rule," as defined by §2001.0225, Government Code. "Major environmental rule" is defined to mean a rule the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure and that may materially, adversely affect the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. The proposed new subchapter is not specifically intended to protect the environment or reduce risks to human health from environmental exposure.

HHSC has determined that the proposed subchapter does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of governmental action and, therefore, does not constitute a taking under §2007.043, Government Code.

Comments on the proposed rules may be submitted to Kathleen W. Anderson, Director, Guardianship Alliance of Texas, Health and Human Services Commission, by mail to 4900 North Lamar Boulevard, Fourth Floor, Austin, Texas 78751, or by facsimile to (512) 424-6586, within 30 days of publication of this proposal in the Texas Register . Additional information may be obtained by calling Ms. Anderson at (512) 424-6599.

1. GENERAL

1 TAC §§381.301, 381.303, 381.305

The new rules are proposed under §531.033, Government Code, which provides the commissioner of HHSC with broad rulemaking authority, and §531.124, Government Code, which authorizes HHSC, with the advice of the Guardianship Advisory Board, to adopt minimum standards for guardianship and related services. The proposed rules affect Chapter 531, Government Code. No other statues, articles, or rules are affected by the proposed new rules.

The new rules affect Chapter 531 of the Texas Government Code.

§381.301.Purpose.

The standards in this chapter are intended to serve as minimum standards for guardianship programs in Texas. A guardianship program is encouraged to apply stricter or higher standards in its operation of its program.

§381.303.Applicability of Standards to Guardianship Programs.

(a) Applicability. The minimum standards established under this subchapter are applicable to all guardianship programs, regardless of size, location, or model of service delivery.

(b) Compliance. A guardianship program must comply with these standards no later the one year following the effective date of these standards.

§381.305.Ineligibility of Non-compliant Programs.

A guardianship program that does not certify in writing to the Health and Human Services Commission (HHSC) that it is in compliance with the minimum standards established under this subchapter is not eligible for grant funding under subchapter C of this chapter or technical assistance from HHSC's Guardianship Alliance of Texas.

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 April 22, 2002.

TRD-200202484

Marina S. Henderson

Executive Deputy Commissioner

Texas Health and Human Services Commission

Earliest possible date of adoption: June 2, 2002

For further information, please call: (512) 424-6576

2. ADMINISTRATION AND FISCAL MANAGEMENT

1 TAC §§381.315, 381.317, 381.319, 381.321, 381.323, 381.325

The new rules are proposed under §531.033, Government Code, which provides the commissioner of HHSC with broad rulemaking authority, and §531.124, Government Code, which authorizes HHSC, with the advice of the Guardianship Advisory Board, to adopt minimum standards for guardianship and related services. The proposed rules affect Chapter 531, Government Code. No other statues, articles, or rules are affected by the proposed new rules.

The new rules affect Chapter 531 of the Texas Government Code.

§381.315.Form Of Entity.

Each guardianship program must prepare and maintain an organization chart that clearly discloses who is responsible for decision making within the program. A guardianship program that exists within the framework of a larger organization (a program that is not a stand-alone program) must prepare and maintain an organization chart that clearly reveals the guardianship program's degree of decision-making autonomy within the larger organization.

§381.317.Fiscal Responsibility.

A guardianship program has the following two distinct types of fiscal responsibility:

(1) Budget and Financial Functions. A guardianship program must maintain the fiscal standards required by its form of entity. All freestanding guardianship programs must follow generally accepted accounting principles and be able to produce proof that generally accepted accounting principles are followed. Guardianship programs that exist within the framework of a larger organization shall maintain the budget and financial functions required by funding sources and/or the larger organization's management.

(2) Clients. The fiscal responsibility of a guardianship program to its clients is governed by Chapter 13 of the Texas Probate Code and enforced by the court that appoints the guardianship program or its members to serve as guardian.

§381.319.Budget.

A guardianship program will maintain procedures to develop, fund, and oversee a budget that is adequate to meet the guardianship and/or less restrictive alternative to guardianship needs of its clients.

§381.321.Insurance.

A guardianship program will protect the entity itself, its board members, employees, volunteers, and clients by annually conducting a risk management analysis and either obtaining appropriate insurance or providing other protections as determined by the guardianship program.

§381.323.Fees For Services.

A guardianship program will develop and maintain written policies and procedures for exploring third-party payment options before charging fees for services to clients. Any fees charged to an incapacitated person's funds must receive prior approval from the judge having jurisdiction over the guardianship. No person needing a guardianship or a less restrictive alternative to guardianship services should be denied these services because of the person's inability to pay for the services.

§381.325.Guardianship Bonds.

A guardianship program must develop and adopt a policy for bonds that describes the means to supply and maintain guardianship bonds as required by a court. The policy should ensure that the qualification of a guardian by a court is not delayed because of the lack of a bond or an insufficient bond. A guardianship program should determine, when selecting and recruiting its employees and volunteers, whether and to what extent the person to be appointed guardian is eligible to be bonded.

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 April 22, 2002.

TRD-200202485

Marina S. Henderson

Executive Deputy Commissioner

Texas Health and Human Services Commission

Earliest possible date of adoption: June 2, 2002

For further information, please call: (512) 424-6576

3. PERSONNEL MANAGEMENT

1 TAC §§381.331, 381.333, 381.335, 381.337, 381.339

The new rules are proposed under §531.033, Government Code, which provides the commissioner of HHSC with broad rulemaking authority, and §531.124, Government Code, which authorizes HHSC, with the advice of the Guardianship Advisory Board, to adopt minimum standards for guardianship and related services. The proposed rules affect Chapter 531, Government Code. No other statues, articles, or rules are affected by the proposed new rules.

The new rules affect Chapter 531 of the Texas Government Code.

§381.331.Guardianship Accountability.

A guardianship program will not adopt any policy or procedure that has the purpose of shifting liability imposed by law on the guardianship program, except as allowed by law, to an individual employee or volunteer.

§381.333.Service Provider Employee Screening.

(a) A guardianship program will perform a criminal background check and a reference check on each employee or volunteer who:

(1) works or will work directly with a client;

(2) currently has or will have access to a client's assets or a client's confidential information.

(b) An employee or volunteer may not provide any services to a client before the guardianship program has completed these checks.

(c) A person may not be employed by or serve as a volunteer in a guardianship program in a position that allows access to a client, a client's assets, or a client's confidential information if:

(1) the person was finally convicted of an offense described in section 678, Probate Code (Presumption Concerning Best Interest); or

(2) the person is ineligible to be appointed guardian due to the provisions of section 681, Probate Code (Persons Disqualified to Serve as Guardians); or

(3) the person was found unsuitable to be appointed guardian by the Probate Court.

§381.335.Confidentiality.

(a) A guardianship program will develop and maintain policies and procedures to insure the confidentiality of client information.

(b) These procedures should, at a minimum, include requiring employees and volunteers to sign confidentiality agreements that conform to all applicable laws and regulations, maintaining client records in a secure location, and training employees and volunteers on confidentiality requirements as they relate to guardianship client records and information.

§381.337.Supervision of Employees and Volunteers.

(a) A guardianship program will develop and maintain policies and procedures that require ongoing supervision of all employees and volunteers who provide services to clients, regardless of whether an individual or the guardianship program is appointed guardian.

(b) Supervisory procedures will provide for training, monitoring, and evaluation of employees and volunteers that is consistent with these standards.

§381.339.Community Involvement.

(a) A guardianship program will strive to attain community involvement in the guardianship program by identifying and involving persons or agencies that provide services of any nature to those populations served by the guardianship program.

(b) A guardianship program will consider the creation of a local advisory committee that consists of persons or representatives from agencies identified under subsection (a) to provide advice and guidance to the guardianship 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 April 22, 2002.

TRD-200202486

Marina S. Henderson

Executive Deputy Commissioner

Texas Health and Human Services Commission

Earliest possible date of adoption: June 2, 2002

For further information, please call: (512) 424-6576

4. GUARDIANSHIP PROGRAMS AND CLIENT SERVICES

1 TAC §§381.345, 381.347, 381.349, 381.351, 381.353, 383.355, 381.357, 381.359, 381.361, 381.363, 381.365, 381.367

The new rules are proposed under §531.033, Government Code, which provides the commissioner of HHSC with broad rulemaking authority, and §531.124, Government Code, which authorizes HHSC, with the advice of the Guardianship Advisory Board, to adopt minimum standards for guardianship and related services. The proposed rules affect Chapter 531, Government Code. No other statues, articles, or rules are affected by the proposed new rules.

The new rules affect Chapter 531 of the Texas Government Code.

§381.345.Less Restrictive Alternatives To Guardianship.

(a) A guardianship program will protect the rights and autonomy of clients and potential clients by promoting the use of less restrictive alternatives to guardianship whenever such alternatives are in the best interests of the client or potential client.

(b) When a guardianship program believes that a less restrictive alternative to guardianship is in the best interests of the client, the guardianship program will either offer these alternatives or refer potential clients to other programs that offer these alternatives.

(c) A guardianship program will advocate for the best interests of a potential client to insure that a court:

(1) grants the guardian only those powers necessary to protect the health, safety, and resources of a potential client; and

(2) limits a potential client's rights only to the extent necessary to protect the health, safety, and resources of a potential client.

§381.347.Guardianship Program Service Levels.

A guardianship program will develop and maintain procedures to provide an adequate level of services to all clients, regardless of whether the program uses paid employees, volunteers, or both employees and volunteers. A guardianship program will maintain an adequate number of employees and/or volunteers to appropriately manage the care of its clients.

§381.349.Role of Volunteers.

A guardianship program may use volunteers in a variety of roles, which include, but are not limited to, the following:

(1) guardians of the person and/or estate of clients;

(2) representative payees or bill payers;

(3) agents of the guardianship program that are appointed as guardian;

(4) to visit, transport, or provide other services to the client on behalf of the appointed guardian; or

(5) staff positions.

§381.351.Staffing Requirements.

A guardianship program will have a program director that is responsible for the development and management of the guardianship program on a daily basis. Program directors are encouraged to become certified by the National Guardianship Association as a Registered Guardian and Master Guardian. Guardianship program staff may be either employees or volunteers, and staff qualifications may vary among the guardianship programs. A guardianship program will develop job descriptions for all staff outlining the duties and responsibilities of all staff members. Job requirements for education and experience must be commensurate with duties and responsibilities and must be comparable to requirements for other positions in the community with similar duties and responsibilities.

§381.353.Training Requirements.

A guardianship program will provide initial and ongoing training on guardianship and less restrictive alternatives for employees and volunteers. Training topics will include, but not be limited to, guardianship laws, disability and aging issues, medical treatment, medication issues, end of life decisions, housing alternatives, money management alternatives, and case management techniques.

§381.355.Conflicts of Interest.

A guardianship program will develop procedures and policies to avoid potential conflicts of interest, which should promote the best interests of the clients of the guardianship program as the guardianship program's first priority.

§381.357.Referral, Intake, and Assessments.

(a) Referral. A guardianship program will develop a procedure for accepting referrals and disseminating the referral information to local courts, hospitals, adult protective services, nursing facilities, and other potential referral sources. Referral procedures must be designed to avoid situations in which the guardianship program will be referring clients to itself.

(b) Intake. A guardianship program will develop eligibility guidelines for the clients to whom services may be provided by the guardianship program. A guardianship program will not accept any guardianship appointment or make any agreement to provide less restrictive alternative services that the guardianship program cannot handle or provide in a competent manner. Intake procedures will be designed to collect sufficient information to determine the least restrictive alternative available to the client and to proceed with the appropriate services as soon as possible.

(c) Assessment. As soon as possible after receiving a referral, a guardianship program will assess a client to determine the following:

(1) whether there is any immediate risk of abuse, neglect, or exploitation to the client;

(2) how the client's incapacity, if any, affects the client's ability to make reasonably prudent decisions;

(3) what limitation of the client's rights, if any, would be in the client's best interests;

(4) what powers a guardian would need to protect the best interests of the client; and

(5) what tasks need to be included in the care plan for the client.

§381.359.Prioritization of Potential Clients on Waiting Lists.

A guardianship program should make every effort to provide a guardian or to provide less restrictive alternative services for a potential client as soon as possible. If a potential client cannot be served at the time the services are needed, a guardianship program must consider the degree of risk to a potential client's health, safety, and resources in determining his or her priority on a waiting list. Any assessment of the potential client will include an assessment of the risk to the client of delaying services. A guardianship program will also maintain a policy that will insure that persons on waiting lists are reassessed at frequent intervals in order to reprioritize cases with changed circumstances as needed.

§381.361.Responsibility for Burial or Cremation.

A guardianship program should consider plans for burial or cremation for its guardianship clients, and, whenever possible, should consult such clients concerning the client's wishes with regard to this matter. Whenever possible, a guardianship program should make burial or cremation arrangements in advance of need. A guardianship program should develop a procedure for contacting local charitable or public burial or cremation resources for those guardianship clients without assets to make these arrangements.

§381.3663.Evaluation and Monitoring of Caseloads.

A guardianship program will maintain procedures to monitor and evaluate its guardianship and less restrictive alternative services caseloads to insure that all its clients are receiving quality services. These procedures must include provisions for periodic interaction between supervisory staff and guardians, record keeping requirements, random audits of individual case records, interviews with clients and service providers, and other appropriate measures.

§381.365.Personal Care Plans for Guardianship Clients.

After a guardianship program or one of its members is appointed as a guardian of the person, the guardianship program will develop a care plan to address the client's personal needs.

(1) Guardian of the Person Care Plans. The care plan should address the powers, duties, and responsibilities given to the guardian of the person by the court's order appointing the guardian. If the court's order states that the guardian of the person has full authority, the care plan should address the powers, duties, and responsibilities given to the guardian of the person by section 767, Probate Code, Powers and Duties of Guardians of the Person, and other applicable sections of Chapter 13, Probate Code, concerning guardianships. The care plan may also include the following:

(A) monitoring services being provided to the client;

(B) providing appropriate clothing for the client;

(C) arranging for medical care, dental care, psychiatric care, and rehabilitation services as necessary;

(D) arranging for education and/or employment opportunities when appropriate;

(E) monitoring the nutrition of the client;

(F) obtaining safe and secure housing; and

(G) obtaining needed public benefits, if there is no guardian of the estate or other person charged with securing those benefits.

(2) Health Care Decisions. A guardianship program will develop a policy that generally describes the types of decisions that can be made by the guardian independently, the types of decisions that should be made only on the advice of two physicians or a psychologist licensed in this state or certified by the Texas Department of Mental Health and Mental Retardation, the types of decisions that should be made only with peer review, and the types of decisions that should be made only after obtaining an order from the court.

(3) Personal Visits. A guardianship program will establish a policy concerning the frequency of personal visits to be made by the guardian or the guardian's representative to the guardianship client. These periodic visits should include personal interaction with the client, if possible, monitoring for signs of abuse or neglect and, if applicable, checking facility charts and consulting with facility staff or other caregivers.

(4) Client Files. A guardianship program will maintain a file on each client that includes intake information, a current copy of the personal and/or financial care plan, a copy of any court orders or Letters of Guardianship, and a case note concerning client activities and concerns.

(5) End of Life Decisions. A guardianship program will include in its care plan whether the client has a Do Not Resuscitate document or Directive to Physicians as to whether the client has ever expressed a preference regarding the use of extraordinary life sustaining measures. A guardianship program shall consult with legal counsel and the judges of courts with guardianship jurisdiction in its service area to develop a policy regarding end of life decisions. This policy should be communicated to all employees and volunteers of the guardianship program.

§381.367.Financial Care Plans for Guardianship Clients.

After a guardianship program or one of its members is appointed as a guardian of the estate, the guardianship program will develop a care plan to address the client's financial needs.

(1) Guardian of the Estate Care Plans. The care plan should address the powers, duties, and responsibilities given to the guardian of the estate by the court's order appointing the guardian. If the court's order states that the guardian of the person has full authority, the care plan should address the powers, duties, and responsibilities given to the guardian of the estate by section 768, Probate Code, General Powers and Duties of Guardian of the Estate, and other applicable sections in Chapter 13, Probate Code, concerning guardianships. The care plan may also include the following:

(A) applying for a monthly allowance for the client's ongoing financial needs;

(B) filing an inventory, appraisal, and list of claims, as required by section 729, Probate Code, Inventory and Appraisement;

(C) changing existing bank accounts to reflect the guardianship or creating new bank accounts in the name of the guardian on behalf of the client; and

(D) developing a long-term financial plan to manage the client's assets to provide for the best care for the client during the client's projected lifetime.

(2) Testamentary Documents. The care plan should state whether the client has a will or other testamentary document, and the guardianship program should attempt to locate any such instruments and deposit them with the court for safekeeping, if possible.

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 April 22, 2002.

TRD-200202487

Marina S. Henderson

Executive Deputy Commissioner

Texas Health and Human Services Commission

Earliest possible date of adoption: June 2, 2002

For further information, please call: (512) 424-6576