TITLE 1.ADMINISTRATION

Part 3. OFFICE OF THE ATTORNEY GENERAL

Chapter 61. CRIME VICTIMS' COMPENSATION

The Office of the Attorney General (OAG) proposes the repeal of Title 1 Administration, Part III Office of the Attorney General, Chapter 61 Crime Victims' Compensation, §61.7 and §61.10. The OAG also proposes new rules for Title 1 Administration, Part III Office of the Attorney General, Chapter 61 Crime Victims' Compensation, §§61.7, 61.10, 61.44, 61.45, and 61.46.

The Texas Government Code §2001.039, requires that each state agency review and consider for readoption each rule adopted by that agency. The OAG reviewed Chapter 61 and determined that §61.7 and §61.10 do not reflect current OAG procedures, policies and practices and therefore should be repealed. The OAG proposes new §61.7 and §61.10 to replace these repealed sections.

Additionally, the OAG proposes new §61.44 to clarify a policy of the OAG concerning reduction of claims on the Crime Victims' Compensation Fund.

The OAG also proposes new §61.45 and §61.46. These new rules are required by House Bill 519, 77th Leg., R.S., (2001) relating to the compensation to victims of family violence or sexual assault for relocation and housing rental expenses. Section 1 of HB 519 is codified at Texas Code of Criminal Procedure, (Tex. Code Crim. Proc.) Art. 56.32(a)(9); Section 2 is codified at Tex. Code Crim. Proc. Art. 56.32(a)(12); and Section 3 is codified at Tex. Code Crim. Proc. Art. 56.42(d). This bill changes the eligibility requirements for individuals to receive benefits for relocation and housing rental expenses and assigns the Texas Family Code (Tex. Fam. Code) definition of "family violence" to the Tex. Code Crim. Proc. provisions relating to relocation and housing rental expenses.

Proposed §61.7 sets forth the specific calculations for computing an award for loss of actual earnings and the anticipated loss of future earnings. Proposed §61.10 provides the reasonable limits on compensation for pecuniary losses. Proposed §61.44 provides that the OAG may consider the victim's behavior as a factor in determining whether to reduce or deny a claim. Proposed §61.45 provides the definitions pertaining to benefits a victim may receive for relocation and housing rental expenses. Proposed §61.46 outlines the eligibility provisions for benefits for relocation and housing rental expenses and the provisions for determining the amount of the award for relocation and housing rental expenses.

John Green, Chief, Crime Victims' Compensation Division of the OAG, has determined that for each year of the first five years that the proposed rules are in effect:

A. the additional estimated cost to the state and to local governments expected as a result of enforcing or administering the rules will be zero because the rules impose no additional burden on anyone;

B. the estimated reductions in costs to the state and to local governments as a result of enforcing or administering the rules will be zero because the rules impose no additional burden on anyone;

C. the estimated loss or increase in revenue to the state or to local governments as a result of enforcing or administering the rules will be zero because the rules impose no additional burden on anyone; and

D. enforcing or administering the rule does not have foreseeable implications relating to cost or revenues of the state or local governments.

Mr. Green has also determined that for each year of the first five years that the proposed rules are in effect, the benefit to the public will be the more timely and efficient awarding of compensation from the Crime Victims' Compensation Fund to eligible victims and claimants.

Mr. Green has determined that the proposed rules will have no adverse economic effect on small or large businesses and/or persons that contract with the state because the proposed rules do not apply to small or large businesses.

Comments may be submitted, in writing no later than 30 days from the date of publication of these rules to John Green, Chief, Crime Victims' Compensation Division, Office of the Attorney General, P. O. Box 12198, Austin, TX 78711-2198, phone number (512) 936-1237 or by e-mail to john.green@oag.state.tx.us.

1 TAC §61.7, §61.10

(Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Office of the Attorney General or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The repeal of these sections is proposed under Texas Code of Criminal Procedure, Art. 56.33 which requires the OAG to adopt rules governing the administration of the Compensation to Victims of Crime Fund consistent with Chapter 56, Subchapter B and under Texas Government Code, Chapter 2001 which authorizes the OAG to adopt rules that interpret statutes, or implement or prescribe policies and procedures.

The repeal affects Texas Code of Criminal Procedure, Chapter 56.

§61.7.Loss of Earnings.

§61.10.Limits on Compensation.

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 May 10, 2002.

TRD-200202923

Rick Gilpin

Assistant Attorney General

Office of the Attorney General

Earliest possible date of adoption: June 23, 2002

For further information, please call: (512) 463-2110


1 TAC §§61.7, 61.10, 61.44 - 61.46

The new rules are proposed under Texas Code of Criminal Procedure, Art. 56.33 which requires the OAG to adopt rules governing the administration of the Compensation to Victims of Crime Fund consistent with Chapter 56, Subchapter B and under Texas Government Code, Chapter 2001 which authorizes the OAG to adopt rules that interpret statutes, or implement or prescribe policies and procedures.

The new rules affect Texas Code of Criminal Procedure, Chapter 56, Subchapters A and B.

§61.7.Loss of Earnings.

(a) Pursuant to Tex. Code Crim. Proc. Art. 56.32(a)(9)(B), the OAG shall determine an award for loss of actual earnings and the anticipated loss of future earnings.

(b) The loss of actual earnings will be computed by determining the weekly net earnings of the victim multiplied by the disability period. In this subsection, "disability period" means the length of time that a victim is unable to work as a direct result of the personal injury, as determined by a physician, or mental trauma caused by the crime as determined by a mental health professional licensed to provide care or counseling as defined in Title 1, Tex. Admin. Code, §§61.2 and 61.31. For the first 14 days or less of a personal injury disability period, the OAG may determine the personal injury disability period upon verification of work missed. Verification may be from any source deemed appropriate by the OAG.

(c) If a victim lost earnings as a result of mental trauma directly caused by the criminally injurious conduct, the mental health professional that regularly treats the victim may submit a written statement to the OAG, verifying loss of earnings for the victim for a maximum period of six months. In order to continue receiving benefits after six months, a victim must submit to an evaluation and a disability determination from a medical doctor or doctor of osteopathy with a psychiatric specialty provided by the OAG.

(d) If a victim was unemployed at the time of the criminally injurious conduct and claims a loss of anticipated earnings, the victim or claimant must provide the OAG with a sufficient showing that the victim would have had earnings had the victim not suffered injury or death as a direct result of criminally injurious conduct. "Sufficient showing" includes, but is not limited to, an affidavit from the employer, including the employer's identification number, affirming that the victim was offered employment, but was unable to begin employment as a direct result of a disability caused by the crime.

(e) Loss of earnings may be paid to a claimant if the claimant can substantiate that his or her presence is necessary for the following activities relevant to the criminally injurious conduct:

(1) decision-making on behalf of a medically incapacitated adult victim or minor child victim who is unable to make decisions on his or her own behalf; or

(2) transporting a medically incapacitated adult victim or minor child victim to medically indicated services or participation in legal matters relating to the prosecution of the criminally injurious conduct.

(f) In computing loss of earnings the OAG will consider any collateral source under Tex. Code Crim. Proc. Art. 56.32(a)(3).

(g) Loss of earnings may be paid upon verification of income reported to the Internal Revenue Service, if reporting is required by law; or documentation from the Texas Workforce Commission; or an affidavit from an employer, including the employer's Texas Workforce Commission employer identification number (EIN); or any other source approved by the OAG.

(h) The amount of loss of earnings awarded under Tex. Code Crim. Proc. Art. 56.32(a)(9)(B) is determined by the date of criminally injurious conduct and is limited pursuant to Tex. Code Crim. Proc. Art. 56.42(c) as follows:

(1) On or after January 1, 1980, to on or before August 31, 1989, the maximum amount of an award for loss of earnings is $150.00 per week.

(2) On or after September 1, 1989, to on or before August 31, 1995, the maximum amount of an award for loss of earnings is $200.00 per week.

(3) On or after September 1, 1995, to on or before January 31, 1998, the maximum amount of an award for loss of earnings is $400.00 per week.

(4) On or after February 1, 1998, the maximum amount of an award for loss of earnings is $500.00 per week.

§61.10.Limits on Compensation.

(a) Pursuant to Tex. Code Crim. Proc. Art. 56.32(a)(9), the OAG shall determine the reasonable limits on compensation for pecuniary losses.

(b) Under Tex. Code Crim. Proc. Art. 56.32(a)(9)(E), loss of support payments may be paid to a dependent of a victim of criminally injurious conduct that occurred on or after September 1, 1997. Loss of support payments to the dependent(s) of a deceased victim may be paid on an ongoing basis at 100% of the pecuniary loss, subject to the award cap determined by the date of the criminally injurious conduct, until the maximum amount of the claim is benefitted or until the dependent(s) no longer qualifies for this benefit by age or marital status. If there are multiple dependents of a deceased victim, the OAG will pay the loss of support payments in equal amounts to each eligible dependent claimant.

(c) Under Tex. Code Crim. Proc. Art. 56.32(a)(9)(C), the cost of care for a dependent of a victim or a minor child of a victim may be awarded if the criminally injurious conduct occurred on or after September 1, 1997, and the care is a new expense resulting from the crime. This benefit is limited to care provided by a licensed care provider at a rate of $100 per week maximum per dependent or minor child.

(d) Funeral and burial expenses provided by Tex. Code Crim. Proc. Art. 56.32(a)(9)(D) are limited to $4,500. Transportation of the deceased victim is an allowable funeral and burial expense which is excluded from the $4,500 cap.

(e) Under Tex. Code Crim. Proc. Art.56.32(a)(9)(F), the cost of cleaning the crime scene is limited to $750 per victim for criminally injurious conduct that occurred on or after September 1, 1995.

(f) Under Tex. Code Crim. Proc. Art. 56.32(a)(9)(G), if the criminally injurious conduct occurred on or after September 1, 1995, the OAG may pay for the reasonable replacement costs, not to exceed $750.00 in the aggregate, for property seized as evidence, rendered unusable as a result of the criminal investigation, or that is not returned to the victim or claimant by law enforcement within a reasonable period of time.

§61.44.Reducing or Denying a Claim.

To reduce or deny a claim under Tex. Code Crim. Proc. Art. 56.45(2), the OAG may consider the victim's behavior as a factor in the cause of the personal injury. If the OAG determines that the victim shared a portion of the responsibility for the act or omission that gave rise to the claim, the OAG may reduce or deny the claim for compensation at the discretion of the OAG. In determining whether the victim shared a portion of the responsibility, the OAG will consider the victim's ability to have reasonably avoided the incident. When a claim for compensation is reduced, the reduction applies to each bill, each individual award amount and the aggregate award amount.

§61.45.Definitions Pertaining to Relocation and Housing Rental Expenses Benefits.

For purposes of awarding benefits pursuant to Tex. Code Crim. Proc. Art. 56.42(d)(1) and (2), the following terms shall have the following meanings.

(1) Household Member-- For the purpose of determining eligibility for relocation and housing rental expenses pursuant to Tex. Code Crim. Proc. Art. 56.42(d)(1) and (2), during the period of time from on or after June 19, 1999, to on or before August 31, 2001, the term has the meaning assigned to "household" under Tex. Fam. Code §71.005 and to "member of a household" under Tex. Fam. Code §71.006.

(2) Place of Residence-- As used in Tex. Code Crim. Proc. Art. 56.42(d) the term means a victim's dwelling, the property under the dwelling, and all other areas and structures on the property under the control of the owner of the property.

§61.46. Eligibility and Reimbursement for Relocation and Housing Rental Expenses Benefits.

(a) Pursuant to Tex. Code Crim. Proc. Art. 56.42(d), the OAG shall determine eligibility for reimbursement of the reasonable and necessary costs for relocation and housing rental expenses. The relocation and housing rental expense benefits are onetime-only assistance payments and therefore, a victim is entitled to apply onetime. Only under exigent circumstances will the OAG consider awarding benefits based on subsequent criminally injurious conduct.

(b) A victim of domestic violence that occurred on or after June 19, 1999, to on or before August 31, 2001, may receive a onetime-only per offender assistance payment in an amount not to exceed $2,000.00 for relocation expenses, and a onetime-only per offender assistance payment in an amount not to exceed $1,800.00 for housing rental expenses. For purposes of determining eligibility, the criminal offense or violation is considered to have occurred on the date when the criminally injurious conduct occurred.

(c) A victim of family violence that occurred on or after September 1, 2001, may receive a onetime-only per offender assistance payment in an amount not to exceed $2,000.00 for relocation expenses, and a onetime-only per offender assistance payment in an amount not to exceed $1,800.00 for housing rental expenses. For purposes of determining eligibility the criminal offense or violation is considered to have occurred on the date when the criminally injurious conduct occurred.

(d) A victim of sexual assault who is sexually assaulted in the victim's place of residence on or after September 1, 2001, may receive a onetime-only per incident assistance payment in an amount not to exceed $2,000.00 for relocation expenses, and a onetime-only per incident assistance payment in an amount not to exceed $1,800.00 for housing rental expenses. For the purposes of determining eligibility the criminal offense or violation is considered to have occurred on the date when the criminally injurious conduct occurred.

(e) Before the OAG will make an award pursuant to Tex. Code Crim. Proc. 56.42(d), the OAG will verify that the victim requesting this benefit was the victim of domestic violence or family violence by reviewing:

(1) the victim's affidavit seeking a protective order and the court order signed by the issuing judge, pursuant to Tex. Fam. Code Chapters 71, 81, and 82; or

(2) the offense report submitted by a law enforcement agency.

(f) Before the OAG will make an award pursuant to Tex. Code Crim. Proc. 56.42(d), the OAG will verify that the victim requesting this benefit was the victim of a sexual assault in the victim's residence by reviewing the offense report submitted by a law enforcement agency.

(g) To determine the amount of an award for relocation expenses the victim must provide the OAG proof of actual costs or an estimate of the relocation expenses on the form provided and approved by the OAG. Relocation expenses may include, but are not limited to the costs of rental deposits, utility connections, moving vans, moving labor, packing, private vehicle mileage, transportation, lodging and meals. Expenses for transportation, lodging, and meals will be reimbursed in a manner consistent with Title 1 Texas Administrative Code, § 61.39. Restrictions on reimbursement for travel under 20 miles are not applicable for this award.

(h) The victim must provide the OAG with documentation such that the OAG can reconcile the estimated relocation costs with the actual relocation expenditures within 30 days of receipt of relocation benefits.

(1) In the event the estimated relocation costs were less than the actual relocation expenses, the OAG will reimburse the victim for the actual relocation costs minus any amount previously paid for relocation expenses. The total amount of a relocation award may not exceed $2,000.00.

(2) In the event the estimated relocation costs were more than the actual relocation expenses, the OAG will:

(A) reduce other benefits to which the victim may be entitled by an amount equal to the overpayment; or

(B) demand payment from the victim to satisfy the overpayment.

(i) An award for rental expenses under this provision may not exceed $1,800.00. To make an award for rental expenses, the victim must provide to the OAG the following information:

(1) a copy of the signed lease or signed contract for a rental agreement for the victim, or a written statement from the landlord showing the location of the rental property, the date of the victim's move-in, the rent amount, the rent due date, and the names of the occupants of the rental property; and

(2) the landlord's name, phone number, address, and federal tax identification number or social security number; or the name of the management company to whom the rent is paid, phone number, address, and federal tax identification number.

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 May 10, 2002.

TRD-200202924

Rick Gilpin

Assistant Attorney General

Office of the Attorney General

Earliest possible date of adoption: June 23, 2002

For further information, please call: (512) 463-2110


Chapter 62. SEXUAL ASSAULT PREVENTION AND CRISIS SERVICES

1 TAC §62.5

The Office of the Attorney General (OAG) proposes amendments to 1 TAC Chapter 62, §62.5, relating to the format for the applications for funds from Sexual Assault Prevention and Crisis Services (SAPCS), Crime Victim Services Division. Section 2001.039 of the Texas Government Code requires that each state agency periodically review and consider for readoption, repeal, or amendment each rule adopted by the agency pursuant to the Government Code, Chapter 2001 (Administrative Procedure Act.) The OAG reviewed section 62.5 and determined that the section has obsolete provisions, does not conform to current OAG procedures, and does not reflect current legal and policy considerations. The purpose of the amendment is to clarify the current procedure for applying for SAPCS funds.

Mr. Rex Uberman, Crime Victim Services Division Chief has determined that for the first five-year period in which the proposed rule is in effect:

A. the additional estimated cost to the state expected as a result of enforcing or administering the rule will be zero because the rule imposes no additional burden on anyone;

B. the estimated reductions in cost to the state and to local governments as a result of enforcing or administering the rule will be zero because the rule imposes no additional burden on anyone;

C. the estimated loss or increase in revenue to the state or to local governments as a result of enforcing or administering the rule will be zero because the rule imposes no additional burden on anyone.

Mr. Uberman has also determined that for the first five-year period in which the proposed amended rule is in effect, the anticipated public benefit is better administration of the SAPCS program by the Office of the Attorney General, as mandated by the Texas Legislature, without increased costs to the state. The amended rule will enable direct service providers to provide more services to victims of sexual assault and public education.

Mr. Uberman has determined that the proposed amendments will have no adverse economic effect on small or large businesses and/or persons that contract with the state because the proposed amendments do not apply to small or large businesses.

Comments may be submitted, in writing, no later than 30 days from the date of this publication to Pam Rodgers, Contracts and Program Management Specialist, Office of the Attorney General, P.O. Box 12548, MC 011-1, Austin, Texas 78711-2548, or by e-mail to pam.rodgers@oag.state.tx.us

This amendment is proposed under the Texas Code of Criminal Procedure, Article 56.541, which the OAG interprets as authorizing the Office of the Attorney General to adopt rules reasonable and necessary to implement Chapter 56, and in order to provide funds for grants or contracts that support crime victim-related services or assistance.

The Texas Government Code, chapter 420 is affected by these proposed amendments.

§62.5. Request for Proposal [ Criteria for ] Applications [ (Information Required for Applications) ].

Applicant proposals must be [ brief and ] submitted to the OAG division issuing the funds [ issuing office typed ] on forms prescribed by the Office of the Attorney General. [ department. ] Proposals must include [ contain ] the information listed in paragraphs (1)- (7) [ (6) ] of this section.

(1) Business Organization. [ organization. ]

(A) State the legal name, DBA, [ full name ] and mailing address of the [ your ] organization.

(B) Give the physical address, business phone number, hotline phone number, fax number, and e-mail address of the organization.

(C) [ (B) ] Give the name[ , ] and title [ , and telephone number ] of the [ contact ] person preparing the Request for Proposal [ submitting ] application.

(D) [ (C) ] Indicate whether the organization [ you ] operates [ operate ] as a public or private non-profit or governmental entity. [ If private non- profit, give proof of incorporation with the secretary of state office ].

(E) [ (D) ] Give the name [ of the ] , phone number and fax number of the executive [ person who will be responsible for implementation of the program (project ] director[ ) ].

(F) [ (E) ] Give the name [ of the ] , title, phone number and fax number of the financial officer [ of your organization ].

(G) [ (F) ] Give the federal employer identification number and Texas vendor identification number [ name of the person authorized to sign legal contracts ] for the [ your ] organization.

(H) Provide the services data requested.

(I) Sign and date the application. Provide the title, phone and fax number of the person authorized to sign the application. Sign and date the assurance of audit form.

(J) Indicate the amount of funding received the previous year, if applicable, and the amount requested.

(K) Provide a board resolution approving the RFP application for funds.

(L) Sign and date the Assurance of Audit form.

(2) Background.

(A) First time applicants must provide a [ Give ] historical description of the organization and the sexual assault program.

(B) Describe the continuum of services in your community including the role of law enforcement, the medical community and the courts. [ Indicate the years of operation and give amounts and sources of funding for each year of operation. ]

(C) [ Explain who has participated in the development of this proposal and the ways in which support and cooperation have been solicited from potentially interested and/or relevant community agencies or groups on the development of this proposal-criminal justice, medical, women's groups, county attorneys' offices, social service departments, minorities, etc. ] Include [ a minimum of ] three current letters of [ community ] support from three different types of organizations or from persons receiving services .

(D) Include information on the training of volunteers and the number of active volunteers delivering direct services. [ Indicate medical and criminal justice support availability. ]

(E) Include the name, address, telephone number, office held and occupation of board members. Describe board orientation and in-service training. [ Include a brief statement concerning the recent experience of all persons (can be volunteer or paid from your organization who will actively be engaged in the proposal effort and emphasize recent experience directly applicable to sexual assault. Include resumes and job descriptions for all staff members involved in the rape crisis program and current job descriptions for all staff, volunteer, and any positions proposed in an application. ]

(F) List staff currently employed in the sexual assault program including the executive director. Indicate if the position is full-time or part-time. Provide the number of hours each position works for the sexual assault program each week. [ Include current bylaws or changes in bylaws from the last application. ]

[(G) Describe the structure of your board of directors and include names and occupations (or your plan for board).]

[(H) Include current personnel policies or changes in policies from the last application.]

(3) Population Served. [ Program description and services offered. (Refer to §62.4(c) of this title (relating to Procedure to Apply for Funds (General Information for the Applicant))). ]

(A) Provide data on the population being served, including services data and catchment area. [ Describe in full what services your program is currently offering. ]

(B) Provide the data on community education, professional education and structured education. [ Give population and geographic area served. Indicate for each area whether services being provided are crisis intervention services and/or public education. Include current program statistics. ]

[(C) Describe in full what services are proposed for this funding.]

(4) Basic Services. [ Objectives. ]

(A) Describe basic services being provided and proposed basic services. [ State the major objectives you propose to accomplish in your current fiscal year. ]

(B) Provide a numeric measure for each basic service proposed. [ State the objectives to be accomplished with this funding. ]

[(C) Give the indicators you will use for measuring your objectives.]

(5) Beyond Basic Services. [ Work program. ]

(A) If applicable, describe beyond basic services provided and proposed beyond basic services. [ provide a work plan for implementing the proposed project. ]

(B) Provide a numeric measure for each beyond basic service proposed. [ The work plan should identify the task necessary to achieve each of the objectives, provide a timetable for completion of each task, and identify the staff member or volunteer to be assigned responsibility for the completion of each task. ]

(6) Budget.

(A) Provide the source of the revenue and funding amount for the sexual assault program within the last five years. If the program has been in operation fewer than five years, provide the information for the years of operation. [ Proposed budget. No equipment may be purchased with these funds. Give fiscal year dates under which your agency or program operates. Please submit a detailed budget (rape program only) for each of the following categories: Budget Category Allowable Cost; Total Budget (give current fiscal year); Source; Proposed Budget (funding requested). Each category should include the following entries: personnel, fringe benefits, travel, supplies, contractual, and other costs. ]

(B) Indicate the total agency budget, the percentage of agency's activities that are sexual assault, and the percentage of the agency's budget that is designated for sexual assault. [ Budget narrative. ]

[(i) List the items and amounts from above budget categories to be funded by this application.]

[(ii) Explain in detail each budget item requested and its relationship to the programmatic needs.]

(C) In column one of the sexual assault program budget, use the budget categories provided and provide the total sexual assault budget for the current year. In column two of the sexual assault program budget, use the budget categories to provide dollar amounts requested from the Office of the Attorney General. In column three of the sexual assault program budget, use the budget categories to provide dollar amounts requested from other funding sources. In column four of the sexual assault program budget, use the budget categories provided and add the Office of the Attorney General's funding to the other sources of funding to determine the total budget.

(D) List the funding sources for the sexual assault program other than the Office of the Attorney General and indicate the amount of funding.

(E) Itemize each budget category within personnel, fringe benefits, travel, supplies, contractual, other cost and indirect.

(F) Provide a budget narrative for personnel.

(7) Attachments.

(A) If the applicant is a non-profit organization, provide a copy of the articles of incorporation filed with the Secretary of State.

(B) Attach current personnel policies.

(C) Attach current by-laws.

(D) Attach job descriptions for staff positions listed within the budget.

(E) If the applicant requests funds within the contractual line item of the budget, attach contract(s) signed by all parties.

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 May 13, 2002.

TRD-200202963

Rick Gilpin

Assistant Attorney General

Office of the Attorney General

Earliest possible date of adoption: June 23, 2002

For information regarding this publication, please contact Andrea Younger, Agency Liaison, at (512) 463-2110.


Part 15. TEXAS HEALTH AND HUMAN SERVICES COMMISSION

Chapter 354. MEDICAID HEALTH SERVICES

Subchapter A. PURCHASED HEALTH SERVICES

3. MEDICAID HOME HEALTH SERVICES

1 TAC §§354.1031, 354.1035, 354.1039

The Health and Human Services Commission (HHSC) proposes amendments to §354.1031, General, §354.1035, Recipient Qualifications for Home Health Services, and §354.1039, Home Health Services Benefits and Limitations. The amendments are proposed to bring the rules into compliance with federal guidelines for home health services by deleting the language for homebound criteria and adding new language regarding recipient criteria. The proposed amendment to §354.1039 clarifies that home health services are subject to utilization review and sets forth documentation requirements.

Sections 354.1031, 354.1035 and 354.1039 were previously published and administered under the Texas Department of Health and previously located under 25 TAC §§29.301, 29.303 and 29.305. Elsewhere in this issue of the Texas Register , the HHSC contemporaneously publishes the administrative transfer of several Texas Department of Health Medicaid rules to the HHSC.

Don Green, Chief Financial Officer, has determined that during the first five years that the proposed rules are in effect, fiscal implications to State health and human services agencies will be as follows: $1,169,418 in State Fiscal Year 2002; $805,623 in State Fiscal Year 2003; $821,735 in State Fiscal Year 2004; $838,170 in State Fiscal Year 2005; and $854,933 in State Fiscal Year 2006. This amendment will not result in any fiscal implications for local health and human service agencies. Local governments will not incur additional costs.

Don Green, Chief Financial Officer, has determined that for each year of the first five years the section is in effect, the public will benefit from adoption of the rules. The anticipated public benefit, as a result of enforcing the section, will be to ensure compliance with federal guidelines for home health services. There will not be any affect on small businesses or micro-businesses to comply with this section as proposed. This was determined by interpretation of the rule that small businesses and micro-businesses will not be required to alter their business practices in order to comply with the rule as proposed. There are no anticipated economic costs to persons who are required to comply with the section as proposed. There will most likely be a positive impact on local employment as a result of the infusion of additional revenues.

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 adversely affect in a material way 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 section is not specifically intended to protect the environment or reduce risks to human health from environmental exposure.

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

Written comments on the proposal may be submitted to Ron Gernsbacher, Director, Medicaid/CHIP Benefits, Texas Health and Human Services Commission, 1100 W. 49th Street, MC Y-927, Austin, Texas 78756-3199 or at (512) 338-6520, within 30 days of publication of this proposal in the Texas Register . A public hearing is scheduled for June 5, 2002, at 9:00 a.m. to 11:00 a.m. The hearing will be held in the Public Hearing Room, Health and Human Services Commission, 12555 Riata Vista Circle, Bldg. #3, Austin, Texas 78727.

The amendments are proposed under the Texas Government Code, §531.033, which provides the Commissioner of HHSC with broad rulemaking authority and under the Human Resources Code, §32.021, and the Government Code, §531.021(a), which provide HHSC with the authority to administer the federal medical assistance (Medicaid) program in Texas.

The proposed amendment affects the Government Code, Chapter 531, the Human Resources Code, Chapter 32.

§354.1031.General.

(a) Purpose. The purpose of this subchapter is to establish rules for the Title XIX (Medicaid) home health benefits.

(b) Definitions. The following words and terms when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.

(1) Home health services--Covered services, equipment, appliances and supplies which are provided to qualified Medicaid recipients at their place of residence by home health agency staff, providers of durable medical equipment, or expendable medical supplies under federal regulations 42 CFR §440.70 and §354.1037 [ §29.304 ] of this title (relating to Written Plan of Care) and §354.1039 [ §29.305 ] of this title (relating to Home Health Benefits and Limitations).

(2) Home health agency--A public or private agency or organization, licensed by the state to provide home health services and qualified to participate as a Medicare home health agency under 42 CFR, Part 484, §§484.1-484.52 (Conditions for Participation of Home Health Agencies).

(3) Plan of care--A written regimen established and periodically reviewed by a physician in consultation with home health agency staff, which meets the plan of care standards at 42 CFR §484.18 and §354.1037 [ §29.304 ] of this title.

(4) Home health aide--An individual who meets the Medicare home health agency personnel qualifications and training requirements established for home health aides at 42 CFR §484.4 and §484.36.

(5) Home health aide services--Services which can be provided by a qualified home health aide, including those listed at 42 CFR §484.36.

(6) Department--The Texas Department of Health and or its designee.

[ (7) Homebound--A condition due to illness or injury which restricts a recipient's ability to leave home, or which makes leaving the home taxing or requires considerable effort, or is medically contraindicated.]

(7) [ (8) ] Part-time--Home health aide or skilled nursing services provided any number of days per week less than eight hours per day.

(8) [ (9) ] Intermittent--Home health aide or skilled nursing services provided less than on a daily basis less than eight hours per day.

(9) [ (10) ] Medicare fee schedule--The fee schedule established by the Medicare program for expendable medical supplies and durable medical equipment.

(10) [ (11) ] Expendable medical supply acquisition fee--The fee determined by the department or its designee by periodic sampling of suppliers or from information provided in manufacturer's publications, whichever is lesser.

(11) [ (12) ] Expendable medical supplies--Medical supplies which meet one or both of the following criteria:

(A) the typical term of use is within one year of purchase; or

(B) reimbursement is made at a cost of $1,000 or less.

(12) [ (13) ] Durable medical equipment--Machinery and/or equipment which meets one or both of the following criteria:

(A) the projected term of use is more than one year; or

(B) reimbursement is made at a cost more than $1,000.

§354.1035.Recipient Qualifications for Home Health Services.

(a) An eligible Medicaid recipient must meet the following requirements to qualify for Medicaid home health services:

[ (1) meet the definition of homebound, or be a Medicaid recipient who is eligible for the Texas Health Steps program (EPSDT program);]

(1) [ (2) ] be under the continuing care and medical supervision of a physician who has established a plan of care or request form for the recipient in accordance with §354.1037 or §354.1039 of this title (relating to Written Plan of Care and Home Health Services Benefits and Limitations) . Recipients must be seen by their physician within 30 days prior to the start of home health services. This physician visit may be waived when a diagnosis has already been established by the physician and the recipient is under the continuing care and medical supervision of the physician. Any waiver must be based on the physician's statement that an additional evaluation visit is not medically necessary;

(2) [ (3) ] have a medical need for covered home health services as documented in the recipient's plan of care or request form for the recipient in accordance with §354.1037 or §354.1039 (of this title (relating to Written Plan of Care and Home Health Services Benefits and Limitations); and

[ (4) receive prior authorization from the department for home health services unless otherwise specified by the department; and]

(3) [ (5) ] receive services that meet the recipient's existing medical needs ,subject to §354.1039, of this title (relating to Home Health Services Benefits and Limitations) and that can be safely provided in the recipient's home.

(b) The home health service, supply, equipment, or appliance must:

(1) be prior authorized by the department, unless otherwise specified by the department;

(2) be prescribed by a physician who is currently licensed;

(3) be medically necessary, as documented in the plan of care and/or the request form, in accordance with §354.1037 and §354.1039 (of this title (relating to Written Plan of Care and Home Health Services Benefits and Limitations);

(4) be provided to a recipient in their place of residence; and

(5) meet accepted industry standards for safety where applicable.

§354.1039.Home Health Services Benefits and Limitations.

(a) The State determines authorization requirements and limitations for covered home health service benefits. The home health agency is responsible for obtaining prior authorization, where specified, for the healthcare service, supply, equipment, or appliance. Home health service benefits include the following:

(1) Skilled nursing. Nursing services provided by a registered nurse (RN) who is currently licensed by the Board of Nurse Examiners for the State of Texas and/or a licensed vocational nurse (LVN) licensed by the Texas Board of Vocational Nurse Examiners provided on a part-time or intermittent basis and furnished through an enrolled home health agency are covered benefits. Billable nursing visits may also include:

(A) nursing visits required to teach the recipient, the primary caregiver, a family member and/or neighbor how to administer or assist in a service or activity which is necessary to the care and/or treatment of the recipient in a home setting;

(B) RN visits for skilled nursing observation, assessment, and evaluation, provided a physician specifically requests that a nurse visit the recipient for this purpose.

(i) The physician's request must reflect the need for the assessment visit.

(ii) Nursing visits for the primary purpose of assessing a recipient's care needs to develop a plan of care are considered administrative and are not billable; and

(C) RN visits for general supervision of nursing care provided by a home health aide and/or others over whom the RN is administratively or professionally responsible.

(2) Home health aide services. Home health aide services to provide personal care under the supervision of an RN, licensed physical therapist (PT), or occupational therapist (OT) employed by the home health agency are covered benefits.

(A) The primary purpose of a home health aide visit must be to provide personal care services.

(B) Duties of a home health aide include the performance of simple procedures such as personal care, ambulation, exercise, range of motion, safe transfer, positioning, and household services essential to health care at home, assistance with medications that are ordinarily self-administered, reporting changes in the patient's condition and needs, and completing appropriate records.

(C) Written instructions for home health aide services must be prepared by an RN or therapist as appropriate.

(D) The requirements for home health aide supervision are as follows.

(i) When only home health aide services are being furnished to a recipient, an RN must make a supervisory visit to the recipient's residence at least once every 60 days. These supervisory visits must occur when the aide is furnishing patient care.

(ii) When skilled nursing care, PT, or OT are also being furnished to a recipient, an RN must make a supervisory visit to the recipient's residence at least every two weeks.

(iii) When only PT or OT is furnished in addition to the home health aide services, the appropriate skilled therapist may make the supervisory visits in place of an RN.

(E) Visits made primarily for performing housekeeping services are not covered services.

(3) Medical supplies. Medical supplies are covered benefits if they meet the following criteria.

(A) Medical supplies must be:

(i) documented in the recipient's plan of care as medically necessary and used for medical or therapeutic purposes;

(ii) supplied through an enrolled home health agency in compliance with the recipient's plan of care; or

(iii) supplied by an enrolled medical supplier under written, signed, and dated physician's prescription; and

(iv) prior authorized unless otherwise specified by the department.

(B) Items which are not listed in subparagraph (C) of this paragraph may be medically necessary for the treatment or therapy of qualified recipients. If a prior authorization request is received for these items consideration will be given to the request. Approval for reasonable amounts of the requested items may be given if circumstances justify the exception and the need is documented.

(C) Covered items include, but are not limited to:

(i) colostomy and ileostomy care supplies;

(ii) urinary catheters, appliances and related supplies;

(iii) pressure pads including elbow and heel protectors;

(iv) incontinent supplies to include incontinent pads or diapers for clients over the age of four for medical necessity as determined by the physician;

(v) crutch and cane tips;

(vi) irrigation sets;

(vii) supports and abdominal binders (not to include braces, orthotics, or prosthetics);

(viii) medicine chest supplies not requiring a prescription (not to include vitamins or personal care items such as soap or shampoos);

(ix) syringes, needles, IV tubing and/or IV administration setups including IV solutions generally used for hydration or prescriptive additives;

(x) dressing supplies;

(xi) thermometers;

(xii) suction catheters;

(xiii) oxygen and related respiratory care supplies; or

(xiv) feeding related supplies.

(4) Durable medical equipment (DME). Durable Medical Equipment must meet the following requirements to qualify for reimbursement under Medicaid home health services.

(A) DME must:

(i) be medically necessary [ due to illness or injury or to improve the functioning of a body member, as documented in the recipient's plan of care ] and the appropriateness of the healthcare service, supply, equipment, or appliance prescribed by the physician for the treatment of the individual recipient and delivered in his place of residence must be documented in the plan of care and/or the request form.

(ii) be prior authorized unless otherwise specified by the department;

(iii) meet the recipient's existing medical and treatment needs;

(iv) be considered safe for use in the home;

(v) be provided through an enrolled home health agency under a current physician's plan of care; or

(vi) be provided through an enrolled DME supplier under a written, signed and dated physician's prescription.

(B) The department will determine whether DME will be rented, purchased, or repaired based upon the duration and use needs of the recipient.

(i) Periodic rental payments are made only for the lesser of:

(I) the period of time the equipment is medically necessary; or

(II) when the total monthly rental payments equal the reasonable purchase cost for the equipment.

(ii) Purchase is justified when the estimated duration of need multiplied by the rental payments would exceed the reasonable purchase cost of the equipment or it is otherwise more practical to purchase the equipment.

(iii) Repair of durable medical equipment and appliances will be considered based on the age of the item and the cost to repair the item.

(I) A request for repair of durable medical equipment or appliances must include a statement or medical information from the attending physician substantiating that the medical appliance or equipment continues to serve a specific medical purpose and an itemized estimated cost list of the repairs. Rental equipment may be provided to replace purchased medical equipment or appliances for the period of time it will take to make necessary repairs to purchased medical equipment or appliances.

(II) Repairs will not be authorized in situations where the equipment has been abused or neglected by the patient, patient's family, or caregiver.

(III) Routine maintenance of rental equipment is the responsibility of the provider.

(C) Covered medical appliances and equipment (rental, purchase, or repairs) include, but are not limited to:

(i) manual or powered wheelchairs;

(I) non-customized including medically justified seating, supports and equipment; or

(II) customized, specifically tailored or individualized, powered wheelchairs including appropriate medically justified seating, supports and equipment not to exceed an amount specified by the department.

(ii) canes, crutches, walkers, and trapeze bars;

(iii) bed pans, urinals, bedside commode chairs, elevated commode seats, bath chairs/benches/seats;

(iv) electric and non-electric hospital beds and mattresses;

(v) air flotation or air pressure mattresses and cushions;

(vi) bed side rails and bed trays;

(vii) reasonable and appropriate appliances for measuring blood pressure and blood glucose suitable to the recipient's medical situation to include replacement parts and supplies;

(viii) lifts for assisting recipient to ambulate within residence;

(ix) pumps for feeding tubes and IV administration; and

(x) respiratory or oxygen related equipment.

(D) Medical equipment or appliances not listed in subparagraph (C) of this paragraph may, in exceptional circumstances, be considered for payment when it can be medically substantiated as a part of the treatment plan that such service would serve a specific medical purpose on an individual case basis.

(5) Physical therapy. To be payable as a home health benefit, physical therapy services must:

(A) be provided by a physical therapist who is currently licensed by the Texas Board of Physical Therapy Examiners, or physical therapist assistant who is licensed by the Texas Board of Physical Therapy Examiners who assists and is supervised by a licensed physical therapist;

(B) be for the treatment of an acute musculoskeletal or neuromuscular condition or an acute exacerbation of a chronic musculoskeletal or neuromuscular condition;

(C) be expected to improve the patient's condition in a reasonable and generally predictable period of time, based on the physician's assessment of the patient's restorative potential after any needed consultation with the therapist; and

(D) not be provided when the patient has reached the maximum level of improvement. Repetitive services designed to maintain function once the maximum level of improvement has been reached are not a benefit. Services related to activities for the general good and welfare of patients such as general exercises to promote overall fitness and flexibility and activities to provide diversion or general motivation are not reimbursable.

(6) Occupational therapy. To be payable as a home health benefit, occupational therapy services must be:

(A) provided by one who is currently registered and licensed by the Texas Board of Occupational Therapy Examiners or by an occupational therapist assistant who is licensed to assist in the practice of occupational therapy and is supervised by an occupational therapist;

(B) for the evaluation and function-oriented treatment of individuals whose ability to function in life roles is impaired by recent or current physical illness, injury or condition; and

(C) specific goal directed activities to achieve a functional level of mobility and communication and to prevent further dysfunction within a reasonable length of time based on the therapist's evaluation and physician's assessment and plan of care.

(7) Insulin syringes and needles. Insulin syringes and needles must meet the following requirements to qualify for reimbursement under Medicaid home health services.

(A) Pharmacies enrolled in the Medicaid Vendor Drug Program may dispense insulin syringes and needles to eligible Medicaid recipients with a physician's prescription.

(B) Prior authorization is not required for an eligible recipient to obtain insulin syringes and needles.

(C) Insulin syringes and needles obtained in accordance with this section will be reimbursed through the Medicaid Vendor Drug Program.

[ (D) An eligible recipient is not required to be homebound to obtain insulin syringes and needles under this section.]

(D) [ (E) ] A physician's plan of care is not required for an eligible recipient to obtain insulin syringes and needles under this section.

(8) Diabetic supplies and related testing equipment. Diabetic supplies and related testing equipment must meet the following requirements to qualify for reimbursement under Medicaid home health services:

(A) diabetic supplies and related testing equipment must be prescribed by a physician;

(B) prior authorization is required unless otherwise specified by the department; and

[ (C) an eligible recipient is not required to be homebound to obtain diabetic supplies and related testing equipment.]

(b) Home health service limitations include the following.

(1) Patient supervision.

(A) Patients must be seen by their physician within 30 days prior to the start of home health services. This physician visit may be waived when a diagnosis has already been established by the attending physician and the patient is currently undergoing active medical care and treatment. Such a waiver is based on the physician's statement that an additional evaluation visit is not medically necessary.

(B) Patients receiving home health care services must remain under the care and supervision of a physician who reviews and revises the plan of care at least every 60 days or more frequently as the physician determines necessary.

(2) Time limited prior authorizations.

(A) Prior authorizations for payment of home health services may be issued by the department for a service period not to exceed 60 days on any given authorization. Specific authorizations may be limited to a time period less than the established maximum. When the need for home health services exceeds 60 days, or when there is a change in the service plan, the provider must obtain prior approval and retain the physician's signed and dated orders with the revised plan of care.

(B) The provider shall be notified by the department in writing of the authorization (or denial) of requested services.

(C) Prior authorization requests for covered Medicaid home health services must include the following information:

(i) The Medicaid identification form with the following information:

(I) full name, age, and address;

(II) Medical Assistance Program Identification number;

(III) health insurance claim number (where applicable);

(IV) Medicare number;

(ii) the physician's written, signed and dated plan of care (submitted by the provider if requested);

(iii) the clinical record data (completed and submitted by provider if requested);

(iv) a description of the home or living environment;

(v) a composition of the family/caregiver;

(vi) observations pertinent to the overall plan of care in the home; and

(vii) the type of service the patient is receiving from other community or state agencies.

(D) If inadequate or incomplete information is provided, the provider will be requested to furnish additional documentation as required to make a decision on the request.

(3) Medication administration. Nursing visits for the purpose of administering medications are not covered if:

(A) the medication is not considered medically necessary to the treatment of the individual's illness;

(B) the administration of medication exceeds the therapeutic frequency or duration by accepted standards of medical practice;

(C) there is not a medical reason prohibiting the administration of the medication by mouth; or

(D) the patient, a primary caregiver, a family member and/or neighbor has been taught or can be taught to administer intramuscular (IM) and intravenous (IV) injections.

(4) Prior approval. Services or supplies furnished without prior approval, unless otherwise specified by the department, are not benefits.

(5) Recipient residence. Services, equipment, or supplies furnished to a recipient who is a resident or patient in a hospital, skilled nursing facility, or intermediate care facility are not benefits.

(c) Home health services are subject to utilization review which includes the following:

(1) the physician must retain in the client's record a copy of the plan of care and/or a copy of the request form documenting medical necessity of the healthcare service, supply, equipment, or appliance and how it meets the recipient's health care needs; and

(2) the home health services provider documents the amount, duration, and scope of services in the recipient's plan of care, the equipment/supply order request, and client record based on the physician's orders. This information is subject to retrospective review; and

(3) the State or its designated contractor may establish random and targeted utilization review processes to ensure the appropriate utilization of home health benefits and to monitor the cost effectiveness of home health services.

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 May 13, 2002.

TRD-200202929

Marina S. Henderson

Executive Deputy Commissioner

Texas Health and Human Services Commission

Earliest possible date of adoption: June 23, 2002

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