Part 5. TEXAS VETERANS LAND BOARD

Chapter 175. GENERAL RULES OF THE VETERANS LAND BOARD

Subchapter A. GENERAL RULES AND CONTRACTING FINANCING

40 TAC §175.2

The Veterans Land Board of the State of Texas (the "Board") proposes an amendment to Title 40, Part 5, Chapter 175 of the Texas Administrative Code, §175.2 relating to Loan Eligibility Requirements of the General Rules of the Veteran Land Board. This amendment will change the definition of "surviving spouse" to match the federal definition.

Sections 161.001(b) and 162.001(b) of the Tex. Nat. Res. Code authorize the Board to change the definition of Veteran if it is in the best interest of the programs. The Board finds that it serves the best interest of the programs if a surviving spouse that is eligible for federal housing benefits is also eligible for the Board programs. The amendment to §175.2(a)(5) will incorporate the federal definition and modifications of the term "surviving spouse," including any future changes.

Douglas Oldmixon, Executive Secretary of the Veterans Land Board, has determined that for each year of the first five years that the section as proposed will be in effect, there will be no significant fiscal implication to state or local government as a result of administering this section as amended.

Douglas Oldmixon, Executive Secretary of the Veterans Land Board, has determined that for each year of the first five years that the section as proposed will be in effect, the public will benefit because the proposed amendment will allow the Board to be consistent with and function with federal loan programs.

Mr. Oldmixon has determined that the proposed amendment will have no significant effect on small businesses during each year of the first five years the section is in effect.

Mr. Oldmixon has also determined that during each year of the first five years the proposed amendment is in effect, the anticipated economic cost to persons who are required to comply with the section will be insignificant. Persons who seek financing from the Board through the Program will pay the same fees to the Board, and costs to third parties, as previously required.

Douglas Oldmixon, Executive Secretary of the Veterans Land Board has determined that during each year of the first five years the proposed amendment is in effect, the anticipated impact on local employment will be insignificant.

Comments may be submitted to Melinda Tracy, Legal Service, General Land Office of the State of Texas, 1700 N. Congress Avenue, Austin Texas, facsimile (512) 463-6311, by no later than 30 days after publication.

The amendment to this section is proposed under the Natural Resources Code, Title 7, Chapter 161, §§161.001, 161.061, 161.063, 161.218, 161.222, 161.233, and 161.283, 161.503, 162.001, and 162.003. These sections authorize the Board to adopt rules that it considers necessary and advisable for the Land Program.

The proposed amendment affects Chapter 161.001 and 162.001 of the Nat. Res. Code.

§175.2.Loan Eligibility Requirements.

(a) The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise:

(1) Board--The Veterans Land Board of the State of Texas.

(2) Bona fide resident--An individual actually living within the State of Texas with the intention to remain.

(3) Missing/Missing in Action--To have an official designation of "missing status" as provided by Title 37, Chapter 10 of the United States Code relating to Payments to Missing Persons. The term "missing status" means the status of members of a uniformed service who are officially carried or determined to be absent in a status of missing; missing in action; interned in a foreign country; captured; beleaguered, or besieged by a hostile force; or detained in a foreign country against their will.

(4) Program--The Veterans Land Program as authorized by Title 7, Chapter 161 of the Texas Natural Resources Code relating to Veterans Land Board.

(5) Surviving spouse--A person who satisfies the federal definition of "surviving spouse" contained in Title 38 USC Sec. 101(3), as modified by the special provision in Title 38 USC Sec. 103, or any successor statutes, as amended from time to time. The board's intent is to match the eligibility requirements for a surviving spouse to qualify for a home loan guaranteed by the USDVA. [ of the opposite sex who was the spouse of a veteran at the time of the veteran's death, and who lived with the veteran continuously from the date of marriage to the date of the veteran's death (except where there was a separation which was due to the misconduct of, or procured by, the veteran without the fault of the spouse) and who has not remarried or (in cases not involving remarriage) has not since the death of the veteran, and after September 19, 1962, lived with another person and held himself or herself out openly to the public to be the spouse of the other person ]

(6) USDVA/VA--The United States Department of Veterans Affairs or any successor thereto.

(7) Veteran--A person who satisfies the requirements of subsection (c)(1) of this section.

(b) The Board shall be the final authority in defining and interpreting all eligibility requirements, and whether an applicant has actually satisfied those requirements. The Board may by resolution prescribe the procedures and forms to be used by applicants to evidence eligibility.

(c) To be eligible to participate in the program, an applicant must satisfy one of the following:

(1) be a person who:

(A) is at least 18 years of age;

(B) is a bona fide resident of Texas at the time of application for a loan. Active duty military personnel who otherwise meet the requirements of this subsection are eligible even though stationed outside of Texas at the time of application;

(C) satisfied one of the following service requirements after September 16, 1940:

(i) has served not less than 90 continuous days of active duty or active duty training time in the Army, Navy, Air Force, Coast Guard, Marine Corps, United States Public Health Service, or the reserve component of one of the listed branches of service, unless discharged earlier because of a service-connected cause;

(ii) has completed all initial active duty training required as a condition of the enlistment or appointment in the Texas National Guard; or

(iii) has at least 20 years of active or reserve military service as computed when determining the applicant's eligibility to receive retired pay under applicable federal law.

(D) is considered not to have been dishonorably discharged under subsection (j) of this section, if the person has been discharged from military service; and

(E) satisfies one of the following:

(i) was a bona fide resident of Texas at the time of enlistment, induction, commissioning, appointment or drafting; or

(ii) has been a legal resident of Texas for at least one year immediately before the date of application.

(2) is the surviving spouse of a veteran who died as a result of a service-connected cause, as certified by the USDVA, or who is identified as missing in action, if the spouse satisfies the requirements of subparagraphs (A) and (B) of subsection (c)(1) of this section, and the veteran satisfied the requirements of subparagraphs (C), (D) and (E)(i) of subsection (c)(1) of this section.

(3) is the surviving spouse of a veteran who died after filing an application and contract of sale with the Board, but before the transaction was completed, if he or she meets all other qualification requirements of the Board.

(d) A person may only have one loan at a time as a veteran. However, once that loan is paid in full he or she may apply for an additional loan as a veteran. The foregoing notwithstanding, an individual who is currently participating in the program as a veteran may take an assignment of a contract or contracts as a non-veteran and may bid on a tract or tracts at a forfeited land sale as a non-veteran.

(e) The applicant must sign applications and contracts. An attorney in fact may not sign these documents for an applicant, except under limited conditions approved by the Board.

(f) No application shall be approved to purchase land under the program:

(1) which provides for or recognizes a second or subordinate lien as a part of the original purchase price for any tract;

(2) where there is evidence that the benefits derived from the use of the land will not pass to the applicant; or

(3) where there exists any other good and sufficient reason to refuse approval, as determined by the chairman of the Board.

(g) If for any reason a veteran's application is not processed to completion, the down payment will be refunded to the veteran, together with the unused portion of any fees that have been deposited with the board.

(h) Each application will be considered as a wholly separate transaction, independent of any other agreement, transaction or contingency. The board will not consider an application which contains a provision making it contingent upon the success or completion of another agreement or transaction.

(i) Any requirement of this section, or of any section within this chapter, which is not otherwise required by the constitution or statutes of this state, may be waived on a case by case basis by the Veterans Land Board. Any waiver request must be in writing and must describe the circumstances surrounding the request, including all of the reasons why the waiver is requested.

(j) For purposes of this section, a person who has been discharged from the branch of the service in which the person served or from the Texas National Guard is considered not to have been dishonorably discharged if the person:

(1) received an honorable discharge;

(2) received a discharge under honorable conditions; or

(3) received a discharge and provides evidence from the United States Department of Veterans Affairs, its successor, or other competent authority that indicates that the character of the person's duty has been determined to be other than dishonorable.

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 March 3, 2003.

TRD-200301506

Larry L. Laine

Chief Clerk, Deputy Commissioner, General Land Office

Texas Veterans Land Board

Earliest possible date of adoption: April 13, 2003

For further information, please call: (512) 305-9129

40 TAC §175.20

The Veterans Land Board of the State of Texas (the "Board") proposes an amendment to Title 40, Part 5, Chapter 175 of the Texas Administrative Code, §175.20 relating to Delinquencies and Forfeiture Procedures, of the General Rules of the Veteran Land Board. This amendment will make it clear that the Chairman can reinstate a contract if the last approved assignee corrects the reasons for forfeiture and complies with all other Board requirements before the order for sale date. This amendment will also allow the chairman to reinstate the contract in the name of the most recently approved assignee if there is more than one person that is eligible to reinstate the contract.

Section161.317 of the Tex. Nat. Res. Code gives the original purchaser or his vendee the right to reinstate a forfeited contract. The Board finds that the present rule does not specifically state that the last approved assignee can reinstate the contract if all past due amounts, penalties, and charges are paid. Also, under the present rule the Board decides who reinstates a contract if more than one person is eligible to reinstate. The Board finds that it is in the best interest of the program for the order for reinstatement to be from the most recent approved assignee to the original purchaser. The amendment to §175.20(d) will clarify that the Chairman can reinstate a contract in the name of the last approved assignee. The amendment will also allow the Chairman to reinstate a contract in the name of the most recently approved assignee if more than one person is eligible for reinstatement.

Douglas Oldmixon, Executive Secretary of the Veterans Land Board, has determined that for each year of the first five years that the section as proposed will be in effect, there will be no significant fiscal implication to state or local government as a result of administering this section as amended.

Douglas Oldmixon, Executive Secretary of the Veterans Land Board, has determined that for each year of the first five years that the section as proposed will be in effect, the public will benefit because the proposed amendment will provide for a specific order for reinstatement, instead of requiring Board action.

Mr. Oldmixon has determined that the proposed amendment will have no significant effect on small businesses during each year of the first five years the section is in effect.

Mr. Oldmixon has also determined that during each year of the first five years the proposed amendment is in effect, the anticipated economic cost to persons who are required to comply with the section will be insignificant. Persons who seek financing from the Board through the Program will pay the same fees to the Board, and costs to third parties, as previously required.

Douglas Oldmixon, Executive Secretary of the Veterans Land Board has determined that during each year of the first five years the proposed amendment is in effect, the anticipated impact on local employment will be insignificant.

Comments may be submitted to Melinda Tracy, Legal Service, General Land Office of the State of Texas, 1700 N. Congress Avenue, Austin Texas, facsimile (512) 463-6311, by no later than 30 days after publication.

The amendment to this section is proposed under the Natural Resources Code, Title 7, Chapter 161, §§161.001, 161.061, 161.063, 161.218, 161.222, 161.233, and 161.283. These sections authorize the Board to adopt rules that it considers necessary and advisable for the Land Program.

The proposed amendment affects Sections 161.317 of the Tex. Nat. Res. Code.

§175.20.Delinquencies and Forfeiture Procedures.

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

(1) Account--The loan account a borrower holds with the Veterans Land Board. The account includes the obligations between the borrower and the board as evidenced by contracts and documents in the borrower's loan file as well as the accounting records of the board. This includes the amount of the unpaid principal balance of the loan, any administrative costs made a part of the loan, unpaid interest, and any delinquent amount.

(2) Borrower--The person presently obligated to make the loan installment payments set forth in the contract, including the purchaser at a forfeited land sale or the last board-approved assignee of the original veteran purchaser.

(3) Contract--The contract of sale and purchase between the board and a borrower.

(4) Current--The account is in good standing with no installments past due.

(5) Delinquent amount--The total amount needed to bring an account current. This includes all past due installments, administrative costs made part of such past due installments, and all accrued delinquent interest on all such past due installments. Delinquent interest shall accrue on any delinquent amount beginning with the fifth (5th) day after the due date and continuing until the date payment of the entire delinquent amount is received. It does not include the reinstatement penalty.

(6) Forfeiture--The action by which the board declares a borrower to be in breach of his or her contract by virtue of failing to perform a material term of the contract, including, but not limited to, timely payment of the loan installments.

(7) Installment--The amount of the periodic loan payment specified by the contract.

(8) Partial Payment Agreement--A borrower's written agreement to clear the delinquent amount on or before a designated date by making payments in addition to the installment amount on scheduled dates as described in the agreement.

(9) Delinquent interest--The interest which accrues on a loan installment which has become delinquent. The delinquent interest rate is 1.5 percentage points greater than the interest rate on the loan.

(10) Reinstatement penalty--The amount charged to a borrower (whose contract has been forfeited by the board) in order to reinstate the contract. The reinstatement penalty is in addition to the amount necessary to bring the account current.

(A) Beginning on the date of the first and any second forfeiture of the contract, each unpaid delinquent installment (of principal and interest combined) will accrue a reinstatement penalty in an amount equal to 1.5 percent per month (or 18 percent per year), until the contract is reinstated.

(B) Beginning on the date of the third instance and any subsequent forfeiture of the contract, the outstanding principal balance of the contract will accrue a reinstatement penalty in an amount equal to 1.5 percent per month (or 18 percent per year), less the accrued delinquent interest, until the contract is reinstated.

(11) Sale order date--The date on which the board meets to order a tract advertised for sale, or for lease for mineral development.

(b) Delinquencies.

(1) If a scheduled loan installment is not received by the board within four (4) days of the due date stated in the contract, the account becomes delinquent. Any payments received on an account shall be first applied to the delinquent amount. The account continues in a delinquent status until the full amount of the delinquent amount has been received by the board.

(2) A partial payment agreement may be granted at the discretion of the chairman at any time prior to the date an account is forfeited. From time to time, the board may, by resolution, set guidelines for other conditions under which partial payment agreements may be approved.

(c) Forfeiture.

(1) The board is the sole judge whether any contract has been forfeited. An account shall become eligible for forfeiture if:

(A) it remains in a delinquent status for 30 or more consecutive days; or,

(B) the contract has been transferred without obtaining the board's permission; or,

(C) property taxes for all prior years shall not have been paid by May 1 of any year; or,

(D) the provisions of the Natural Resources Code, Chapter 161, the terms of the contract, or the rules of the board are not satisfied.

(2) The board must give 30 days written notice to the borrower, the original veteran purchaser (if different from the borrower) and all board approved assignees of the original veteran purchaser, if any, and must specify the reason why the contract is subject to forfeiture. This notice will be sent by certified mail to the last known address of these parties. If the reason for forfeiture is cured or corrected within 30 days the board shall not declare a forfeiture.

(3) The liability of the original veteran purchaser and any subsequent assignee or assignees is joint and several, but the original veteran purchaser is primarily liable for payment of the money under the contract.

(4) A forfeiture shall be effective at the same time the board meets and adopts a resolution forfeiting the contract. At that time, the land and all payments previously made are forfeited.

(5) When the forfeiture is effective, the full title to the land shall revest in the board. Any interest in the mineral estate which the board acquired at purchase shall likewise revest in the board. The board shall recognize, and continue in force and effect, any outstanding valid oil, gas, or mineral lease and collect all rentals, royalties, or other amounts payable under the lease. The board may also lease the land on terms it considers proper. The proceeds received from a lease on a forfeited tract shall be credited to the Veterans Land Fund; however, the chairman is authorized to credit any portion of the lease proceeds to the delinquent amount and unpaid principal of a loan as part of a borrower's attempt to reinstate his or her contract.

(d) Reinstatement.

(1) From time to time, the board by resolution may set additional guidelines and reasonable requirements which must be satisfied before reinstatement may be granted (e.g., evidence that there are no delinquent taxes due as of the date and time of reinstatement, etc.).

(2) The borrower, the original veteran purchaser (if different from the borrower) , and all board approved assignees may reinstate the contract at any time before the sale order date if the reason for forfeiture was failure to keep the account current. If the contract was forfeited for any other reason, the board in its discretion may determine there is no right to reinstate the contract.

(A) Any person wishing to exercise a right of reinstatement shall submit to the board payment of the delinquent amount, the reinstatement penalty and other costs incident to the reinstatement as prescribed by the board.

(i) If there is only one person who has a right to reinstate a contract (there having been no board approved assignments of the contract), or if the last approved assignee requests reinstatement, the chairman of the board may in his or her discretion reinstate the contract immediately upon receipt of payment of the delinquent amount, the reinstatement penalty and other costs prescribed by the board.

(ii) If two or more persons, other than the last approved assignee, appear [ more than one person appears ] to have a right to reinstate the same contract, reinstatement shall not be granted prior to the time the board meets on the sale order date. In this event, all persons wishing to reinstate the same contract are required to submit to the board payment of the delinquent amount, reinstatement penalty and other costs prescribed by the board. Any person failing to satisfy this requirement by the sale order date may, in the chairman of the board's discretion, be deemed to have failed to exercise his or her right to reinstate the contract. Any monies and documents submitted by such persons shall be returned. If on the order for sale date, there are still two or more persons who have satisfied the requirements [ satisfy the requirement ] to reinstate the same contract, the chairman of the board may, in his or her discretion, reinstate the contract in the name of the person that has complied with the board's requirements for reinstatement and was most recently approved by the board as a purchaser or an assignee. [ the board shall decide, in its discretion, who may reinstate. Such determinations shall be made on a case by case basis. ]

(B) A person who desires to reinstate a contract but is unable to submit full payment of the delinquent amount before the anticipated sale order date, may petition the chairman to postpone the sale order date for the tract. The chairman in his or her sole discretion may grant or deny such a petition.

(i) In granting such a petition, the chairman may set reasonable conditions which must be satisfied by a stated deadline. Such conditions may include, but are not limited to, the requirement that the requesting party enter into a partial payment agreement.

(ii) If the requesting party satisfies all conditions set by the chairman by the stated deadline, the account shall be reinstated.

(iii) If the requesting party fails to satisfy all conditions set by the chairman by the stated deadline, the sale order date for the tract may be reset. If the requesting party thereafter fails to pay the delinquent amount in full prior to the sale order date, all monies paid under the partial payment agreement shall be forfeited to the board.

(3) Any person failing to make a timely submission shall lose his or her right of reinstatement.

(4) The right to reinstate a contract is extinguished when the tract has been ordered advertised for sale (or for lease for mineral development). However, the borrower, the original veteran purchaser (if different from the borrower), or any board approved assignee may petition the board to permit reinstatement.

(A) The board, in its discretion, may reinstate the contract under conditions it deems appropriate, including, but not limited to, requiring that the account be paid in full simultaneously with the reinstatement.

(B) Stay of Sale.

(i) The board, in its discretion, may stay (postpone) sale of the tract. The board may set conditions which must be satisfied before reinstatement will be permitted. The chairman is authorized by the board to make a written agreement with the party seeking reinstatement setting forth all conditions for reinstatement, including a date by which each condition must be satisfied. The conditions may include, but are not limited to, the following: payment of the delinquent amount, payment of the reinstatement penalty (including costs incident to the reinstatement), and submission of tax certificates evidencing that there are no delinquent taxes on the land. When the board determines that all conditions set forth in the agreement have been satisfied, it shall reinstate the contract. Until the board's conditions have been satisfied, the contract will remain in a forfeited status, but the sale of the tract shall be stayed.

(ii) The stay may be revoked at any time by the board if the borrower fails to satisfy any of the conditions set forth in the agreement.

(iii) The board shall be the sole judge of whether the conditions of the agreement have been satisfied.

(5) The board expressly authorizes the chairman to reinstate any account at any time prior to receipt of full payment of the delinquent amount if he or she deems it to be in the best interest of the Veterans Land Program.

(e) Re-amortization.

(1) The chairman, in his or her discretion, may permit a borrower to re-amortize his or her loan to incorporate all or part of the delinquent amount into the unpaid balance.

(2) A re-amortization shall be granted only on the condition that the borrower's loan has not been previously re-amortized.

(3) The chairman's consent to re-amortize shall state the new balance and the term over which it is to be re-amortized.

(f) Restoring Eligibility to Participate after Order for Sale.

(1) A person who is ineligible to participate in loan programs because of a past forfeiture and order for sale, may make a written request to the board for a restoration of the person's eligibility. The request must detail the circumstances which led to the prior forfeiture and order for sale and justify such request. If granted, the requestor must fulfill any conditions that the board, in its sole discretion and notwithstanding any other provisions of this chapter, establishes or determines are necessary to restore such eligibility.

(2) Notwithstanding any other provisions of this chapter, the board authorizes the chairman to restore a person's eligibility to participate in board loan programs, as a veteran or non-veteran as the case may be, without further board action if the person requesting the restoration of eligibility:

(A) was not the account holder at the time the account was forfeited and ordered for sale, because the board had earlier approved a transfer of the account to a new account holder and the account was current at the time of transfer; or

(B) was the account holder at the time of forfeiture and order for sale and:

(i) the board has sold the property that was the subject of the forfeited account; and

(ii) the person requesting the restoration of eligibility pays to the board the unpaid interest, including delinquent interest, and reinstatement penalty that had accrued on the forfeited account as of the date the account was ordered for sale.

(g) Savings clause. Interest charged and collected on any contract will not exceed the maximum rate or amount of nonusurious interest that may be contracted for, taken, reserved, charged, or received under any law. Any interest in excess of that maximum amount will be credited on the principal amount of the contract or, if the principal amount has been paid, refunded to the borrower. On any acceleration or required or permitted prepayment any excess interest will be canceled automatically as of the acceleration or prepayment or, if the excess interest has already been paid, credited on the principal amount or, if the principal amount has been paid, refunded to the borrower. This subsection shall prevail over other provisions in this chapter and any instruments concerning the debt.

(h) All contracts are subject to the provisions of the constitution, statutes, and rules governing the board, as such constitution, statutes, and rules may from time to time be amended.

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 March 3, 2003.

TRD-200301505

Larry L. Laine

Chief Clerk, Deputy Commissioner, General Land Office

Texas Veterans Land Board

Earliest possible date of adoption: April 13, 2003

For further information, please call: (512) 305-9129

Chapter 260. AREA AGENCY ON AGING ADMINISTRATIVE REQUIREMENTS

40 TAC §§260.1 - 260.3, 260.11, 260.15, 260.17, 260.19

The Texas Department on Aging proposes amendments to §§260.1 - 260.3, 260.11, 260.15, 260.17, 260.19 and the repeal of §260.14 and §260.21, concerning Area Agency on Aging Administrative Requirements.

The amendments and repeal are necessary as a result of the rule review for Chapter 260. The proposed rule review was published in the November 29, 2002, issue of the Texas Register (27 TexReg 11183). Elsewhere in this issue of the Texas Register , the Texas Department on Aging contemporaneously adopts the rule review for Chapter 260.

Barbara Zimmerman, Chief Fiscal Officer has determined that for the first five-year period the rules are in effect there will be no fiscal implications for state agencies required to comply with the rules as proposed.

Ms. Zimmerman also has determined that for each year of the first five years the rules are in effect the public benefit anticipated as a result of enforcing the rules will be an updated chapter. There will be no effect on small or micro businesses. There will be no effect to individuals required to comply with the sections as proposed.

Comments on the proposal may be submitted to Gary Jessee, Director Office of AAA Support and Operations, Texas Department on Aging, P.O. Box 12786, Austin, Texas 78711. All comments must be written and delivered via mail, in person, or facsimile. E-mail and verbal comments cannot be accepted. All comments must be received within 30 calendar days following the date of publication of the proposed rules in the Texas Register .

The amendments are proposed under Texas Government Code, §2161.003, which provides the Texas Department on Aging with the authority to promulgate rules governing the operation of the Department.

These amendments also implement or affect Texas Human Resources Code, Subchapters C and D, and §101.022(b) and §101.022(d). These amendments implement Titles III and VII of the Older Americans Act of 1965, as amended, 42 U.S.C.A., §§3001, et.seq. (West 2002).

§260.1.Area Agency on Aging Administrative Responsibilities.

(a) Purpose. This chapter establishes the responsibilities of the area agency on aging in developing and maintaining an organized and efficient system of administration that demonstrates accountability and compliance with state and federal law and with all terms and conditions of the contract it enters into with the Department [ with all terms and conditions of the contract ].

(b) Structure.

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

(4) Conflicts of Interest. An area agency on aging, its employees, volunteers working within programs of the area agency on aging, its advisory board/committee members and its governing boards shall seek to avoid conflicts-of-interest, in fact and perception, and provide proper notification when potential conflicts-of-interest do occur. Subtitle C, Chapter 171, Local Government Code shall apply to those persons and entities covered under that title for all purposes.

(A) (No change.)

(B) No current employee, current board member or aging advisory committee member, including one subject to [ unless covered under ] Subtitle C, Chapter 171, Local Government Code, who exercises any functions or responsibilities in the review or award of any contract or the procurement of services or goods on behalf of the area agency on aging, shall:

(i) - (ii) (No change.)

(C) (No change.)

(D) Area agencies on aging shall include a requirement in all Requests for Proposal (RFP) for services for older persons [ to the elderly ] and requests for vendor enrollment that any potential conflicts-of-interest be identified in the RFP response. The notification of potential conflicts-of-interest shall include:

(i) the person and the nature for which a potential conflict-of-interest exists; and

(ii) (No change.)

[(iii) the nature of the potential conflict-of-interest.]

[(E) The person for whom the potential conflict-of-interest exists shall certify that he/she will abide by all rules established in this subsection.]

(c) Accountability.

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

(3) All extensions must [ Extensions may ] be in writing to the Help Desk through electronic notification and requested on or before the due date of the report for which the request is made [ negotiated for reports by Department contract managers according to the circumstances for the request ].

[(4) All requests for extension must be made in writing or through electronic notification to the Program and Fiscal Accountability's Help Desk and requested on or before the due date of the report for which a request is made.]

(4) [ (5) ] The Department may grant up to two requests for extension per report per federal fiscal year . An area agency on aging may be granted no more than eight [ six ] extensions per federal fiscal year. The length of extension will be negotiated. The Department will make the final decision regarding extensions.

(5) [ (6) ] The area agency on aging shall comply with the terms of all applicable interagency agreements, including, but not limited to, those agreements that are legislatively mandated or to which [ entered into by ] the Department and the area agency on aging are parties [ on behalf of area agencies on aging ].

(d) Contracted Provider Review.

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

(3) The area agency on aging shall conduct an annual [ measure ] customer satisfaction survey of program participants/clients of the contractor utilizing the process furnished by the Department [ through an annual customer satisfaction survey sample of program participants/clients ].

(4) (No change.)

(e) (No change.)

(f) Targeting.

(1) Area agencies on aging shall target individuals [ service delivery ] in accordance with the OAA, as amended.

(2) The area agency on aging shall require that subcontractors/service providers adhere to the targeting policy implemented by the area agency on aging [ paragraph (1) of this subsection ].

(g) Visibility.

(1) (No change.)

(2) The area agency on aging shall use the logo on all printed material it develops [The logo below shall be used whenever an area agency on aging develops printed material].

Figure: 40 TAC §260.1(g)(2)

(h) Uniform Telephone Listings.

(1) The telephone number of each area agency on aging, the area agency on aging's information and assistance toll-free number and the area agency on aging's nursing home ombudsman toll-free number shall appear in the primary [each] telephone directory published by the provider of local telephone service for residents in any geographical area that lies in whole or in part in the planning and service area served by the area agency on aging.

(2) The listings shall appear in the unclassified sections (white pages) [ and government sections ] of the phone book. [ If the area agency on aging serves a major metropolitan area, it shall list its toll-free number(s) in the classified section of the telephone directory(ies). ]

(3) The listing shall begin with the words "Area Agency on Aging," and shall include the host agency, as applicable . The published [ , and the ] phone number shall be answered "Area Agency on Aging" when the call is received [ in the area agency on aging ].

(i) The area agency on aging shall cite the Texas Department on Aging as the [ its ] primary funding source using the phrase, "Funded by the Texas Department on Aging" or "Funded in part by Texas Department on Aging" on all printed material.

(j) (No change.)

(k) Emergency Management.

(1) When a disaster occurs, the area agency on aging will notify the Department of its need to provide for emergency management activities, provide information to the Department regarding the impact of the disaster on the older [ elderly ] population in its service area, provide emergency management services in accordance with current AoA disaster relief guidelines and collect pertinent data necessary to submit reimbursement requests for disaster services.

(2) The area agency on aging shall consult with the appropriate agencies that have an interest or role in meeting the needs of older persons [ the elderly ] in planning for, during, and after natural, civil defense and/or man-made disasters. To accomplish this, the area agencies on aging shall:

(A) - (D) (No change.)

§260.2.Area Agency on Aging Fiscal Responsibilities.

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

(c) Independent Audit.

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

(3) The area agency on aging shall provide and furnish the Department with an annual audit by an independent certified public accounting firm in accordance with OMB Circular A-133 within 30 calendar days following receipt of such audit, but in no case more than 9 months following the end of the area agency on aging's fiscal year end that the audit covers .

(4) (No change.)

(d) (No change.)

(e) Disallowance of Costs.

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

(3) To recover unresolved questioned costs revealed in an audit or monitoring visit, the Department will send to the area agency on aging a Letter of Notification of Disallowance with Intent to Recover Costs by certified or registered mail, return receipt requested within 60 calendar days following the failure to resolve all such questioned costs. The 60 calendar day period shall begin the next day following the six months allowed for resolution in accordance with OMB Circular A-133.

(4) - (5) (No change.)

(6) The area agency on aging shall be liable to the Department for any costs disallowed as a result of unresolved questioned costs revealed during an audit or monitoring visit relating to aging programs and/or expenditures.

(7) Failure of the area agency on aging to timely secure an acceptable independent audit from a subcontractor, when required by law, shall be subject to the disallowance provisions of this section to the same extent as disallowance based on overpayment of funds or other questioned costs . [ within the timeframe established in paragraph (5) of this subsection, relating to the recovery of questioned costs shall be deemed non-resolution. Non-resolution under this subparagraph shall be considered a violation under §254.13(f)(11) of this title (relating to Compliance with Contractor Responsibilities, Rewards and Penalties) ].

(8) (No change.)

(f) Recapture of Payments.

(1) (No change.)

(2) Any area agency on aging having funds recaptured because of a disallowance, in accordance with subsection (e) relating to disallowance, shall waive all rights to such funds and shall not receive any of the funds as part of a future allocation [ upon reallocation ].

(g) (No change.)

(h) Budget Submissions.

(1) An area agency on aging, on an annual basis, shall submit a budget in a format directed by the Department which reflects [ the scope of ] the approved area plan.

(2) (No change.)

(3) Budget submissions shall be due to the Department no later than 45 days following the date of notification to the area agency on aging .

(i) Contracting.

(1) The authority for the area agency on aging to enter into service provider contracts is based on the Older Americans Act of 1965, as amended, [ and its regulations; ] HHS regulations on Administration of Grants; Title 45 Code of Federal Regulations, Part 74; Title 45 Code of Federal Regulations, Part 92; Title 45 Code of Federal Regulations, Part 1321, et seq.; Title 45 Code of Federal Regulations, Part 91; and all policies and rules established by the Department; and with all state and local laws as they pertain to contracting and reimbursement methodologies. The area agency on aging and all subcontractors/service providers shall comply therewith.

(2) When purchasing services, the area agency on aging shall use the following cost determination methodologies for the purchase of goods and services. These methodologies are known as cost reimbursement, performance based unit rate and variable unit rate.

(A) (No change.)

(B) Fixed [ Performance Based ] Unit Rate. In performance based unit rate contracting, the area agency on aging agrees to pay the subcontractor/service provider in the amounts and upon the terms, provisions and budgets as set forth in its contract with the subcontractor/service provider as a result of negotiation of a suitable unit rate. The subcontractor/service provider agrees to deliver specific services on an at-risk basis.

(C) (No change.)

(3) - (5) (No change.)

(6) The area agency on aging shall attach [ to the subcontractor/service provider contract, ] all relevant sections of the Texas Administrative Code relating to the service(s) provided regardless of the procurement process used.

(7) (No change.)

(j) Service Match.

(1) In order to meet the match requirements of the Older Americans Act, 1965, as amended, Section 304(d), area agencies on aging and their service providers shall provide a minimum of [ 10% ] non-federal match funds for the cost of all Older American Act services.

(2) (No change.)

(3) In-kind shall be based on fair market value of the services and goods [ provided at the time they are provided ].

(k) Area Agency on Aging Administrative Match.

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

(3) In-kind shall be based on fair market value of the services and goods [ provided at the time of provision ].

(l) Program Income.

(1) Program income contributions shall be administered in accordance with 45 Code of Federal Regulations, Part 132 .67 ; 45 Code of Federal Regulations, Part 92.25; and the Uniform Grant Management Standards.

(2) (No change.)

(3) Fixed or Variable [ Performance Based ] Unit Rate. Program income received shall not be deducted from the amount paid to subcontractor/service provider.

(4) (No change.)

(m) Adequate Proportion.

(1) (No change.)

(2) Adequate proportion of funding for support services shall include each of the following support services categories and their designated services:

(A) Services [ services ] associated with access to services ( Transportation, Information, Referral [ transportation outreach, information ] and Assistance [ assistance ] and Care Coordination [ case management services ]);

(B) - (C) (No change.)

(3) - (4) (No change.)

(n) Ombudsman Maintenance of Effort. Area agencies on aging shall meet the requirements for maintenance of effort for ombudsman activities as defined in the Older Americans Act §306(a) (9) [ (11) ].

§260.3.System of Access and Assistance.

(a) Purpose and Goals. This rule establishes the requirements for implementation by area agencies on aging of the system of access and assistance. Each area agency on aging shall establish and[ /or ] maintain a system of access and assistance. The program shall incorporate necessary strategies and activities to meet the following goals:

(1) - (4) (No change.)

(b) Outcomes.

(1) The area agency on aging shall achieve the following system outcomes.

(A) The area agency on aging will conduct outreach and[ /or ] marketing efforts to inform eligible persons and/or their family members or other caregivers of available services.

(B) - (D) (No change.)

(E) Access and assistance services are available to persons age 60 years and older and/or his/her family member or other caregiver regardless of income [ or location within the service area ].

(F) (No change.)

(2) (No change.)

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

(e) System Integration.

(1) (No change.)

(2) Coordination with the Texas Department of Human Services. Area agency on aging access and assistance staff shall work with the local Texas Department of Human Services (TDHS) staff to ensure any person who may be eligible for TDHS services will be referred to that agency. The area agency on aging may provide services to persons who are eligible for TDHS services in the following instances:

(A) the person is on an [ a ] interest list for TDHS services;

(B) - (C) (No change.)

(f) Client Eligibility. Eligible clients include any person age 60 years and older and/or his/her family member or other caregiver .

(g) - (j) (No change.)

(k) Client Contributions.

(1) (No change.)

(2) Care management clients who meet the criteria identified in Human Resources [ Resource ] Code 101, Subchapter C relating to Options for Independent Living shall be encouraged to contribute towards the cost of their care through a suggested contribution [ co-payment ] schedule.

(l) - (m) (No change.)

(n) Information, Referral and Assistance. The information, referral and assistance process consists of activities such as assessing the needs of the inquirer, evaluating appropriate resources, assessing appropriate response modes, identifying [ indicating ] organizations capable of meeting those needs, providing enough information about each organization to help inquirers make an informed choice, helping inquirers for whom services are unavailable by locating alternative resources, when necessary, actively participating in linking the inquirer to needed services and following up on referrals to ensure the service was received or provided.

(1) Target Population.

(A) (No change.)

(B) Information, referral and assistance services shall be provided to Medicare [ and Medicaid ] beneficiaries of any age under the provisions of funds received from the Centers for Medicare and Medicaid Services [ Health Care Financing Administration ].

(2) Access and assistance staff shall provide telephone, electronic or walk-in information, referral and assistance services in which the inquirer has one-to-one contact with an information, referral and assistance specialist. In accordance with §260.1 of this title, the published phone number will be answered "Area Agency on Aging" when the call is received.

(3) - (5) (No change.)

(6) Information, Referral and Assistance Log.

(A) - (B) (No change.)

(C) The area agency on aging shall use information it records [ recorded information ] to identify service gaps and overlaps, assist with needs assessments, support the development of products, identify issues for staff training, facilitate the development of the resource information system.

(7) (No change.)

(8) Professional Conduct.

(A) (No change.)

(B) Area agencies on aging are encouraged to seek and maintain agency accreditation with the Alliance of Information and Referral Systems.

(o) Care Coordination. The purpose of care coordination is to assess the needs of a client and effectively plan, arrange, coordinate and follow-up on services which most appropriately meet the identified needs as mutually defined by access and assistance staff, the client, and where appropriate, a family member(s) or other caregiver.

(1) Program Design. The operational design of care coordination is dictated by the needs of the area agency on aging service area and includes a combination of levels of care. These levels of care coordination include:

(A) Service Authorization without an assessment ; [ and ]

(B) Service Authorization requiring an assessment; and

(C) [ (B) ] Care Management, which includes the model of case [ care ] management as defined by the program entitled, Options for Independent Living, as required by in Human Resources [ Resource ] Code Chapter 101, Subchapter C.

(2) Service Authorization. A process which identifies a need for a service(s) and uses the direct purchase of service procedures to obtain and initiate one or more services. There are two types of service authorization. They include service authorization without an assessment and service authorization requiring an assessment.

(A) Service Authorization Without an Assessment.

(i) Service authorization without an assessment may be used to procure all services except home delivered meals, homemaker, personal assistance , [ and ] residential repair and respite services .

(ii) (No change.)

(iii) Service authorization without an assessment must be based on a client intake completed by area agency on aging access and assistance staff or by a qualified source. When authorizing congregate meals a nutritional risk assessment must also be completed.

(B) Service Authorization Requiring an Assessment.

(i) Service authorization requiring an assessment may be used to procure home delivered meals, homemaker, personal assistance , [ and ] residential repair and respite services .

(ii) (No change.)

(iii) In addition to completing the client intake and nutritional risk assessment (home delivered meals) , a modified assessment must be conducted which may include:

(I) TDHS Form 2060; or

[(II) Nutritional Risk Assessment; or ]

(II) [ (III) ] Service appropriate assessment.

(III) [ (iv) ] Area agency on aging access and assistance staff may conduct the assessment, procure it or accept it from a qualified source.

(C) Care Management. Care management is a process that assists clients with multiple needs by developing and implementing comprehensive plans of care.

(i) Care management services may be provided only to persons age 60 years and older and/or his/her family member or other caregiver , with priority given to those:

(I) - (III) (No change.)

(IV) have insufficient caregiver support; or [ and ]

(V) (No change.)

(ii) (No change.)

(p) Other key components of the area agency on aging system of access and assistance include Benefits Counseling and Ombudsman Services. The requirements for the Ombudsman Program are identified in §260.11 of this title (relating to Ombudsman Services).

(1) Benefits Counseling. Benefits counseling includes both legal assistance and legal awareness services.

(A) Legal Assistance. Legal assistance includes the provision of client-specific advice, counseling and[ /or ] representation on matters involving insurance issues, public/private benefits, consumer problems and other legal issues.

(B) (No change.)

(2) Targeting.

(A) (No change.)

(B) Benefits counseling services shall be provided to Medicare [ and Medicaid ] beneficiaries of any age under the provisions of funds received from the Centers for Medicare and Medicaid Services [ Health Care Financing Administration ].

(3) (No change.)

(4) Benefits counseling services shall be provided according to the following:

(A) If a request for assistance involving any of the priority issue areas identified in paragraph [ Paragraph ] (3) of this subsection requires intervention by an attorney or paralegal, the benefits counselor shall refer the client shall be referred to an appropriate provider in the area.

(B) (No change.)

(C) Regardless of the referral source, the benefits counselor shall determine [ it shall first be determined ] whether or not the client may be assisted with other resources, such as the Legal Hotline for Older Texans, pro-bono or reduced-fee providers or through services funded by the Legal Services Corporation.

(5) Relationship with Providers. The area agency on aging shall establish the following procedures when working with providers of benefits counseling and related legal services:

(A) To accomplish paragraph [ Paragraph ] (4), subparagraph [ Subparagraph ] (A) of this subsection [ Subsection ], the area agency on aging shall coordinate with the Legal Hotline for Older Texans, Texas Young Lawyers Association, the private bar and local legal programs (such as law clinics or student law programs), Legal Services Corporation grantees, the Ombudsman Program or other programs.

(B) (No change.)

(C) If consultation/back-up is needed for access and assistance staff in addition to paragraph [ Paragraph ] (5), subparagraph [ Subparagraph ] (B) of this subsection [ Subsection ], such assistance may be obtained through agreements with programs such as pro-bono or reduced-fee attorneys, law school students, local legal programs or Legal Services Corporation grantees.

(6) Education and Outreach.

(A) Education and outreach activities include the dissemination of accurate, timely and relevant information regarding any issue identified under the priority areas in paragraph (3) of this subsection [ Subsection ] to persons identified under paragraph [ Paragraph ] (2) of this subsection [ Subsection ].

(B) (No change.)

(7) Classification of Activities.

(A) The provision of activities described in paragraph [ Paragraph ] (6) of this subsection [ Subsection ] to eligible persons in a one-on-one setting or by telephone where detailed information is provided but no client intake is necessary shall be reported as legal awareness.

(B) (No change.)

(C) If a client has a simple request for information on any topic including those identified under paragraph [ Paragraph ] (3) of this subsection [ Subsection ], it shall be reported as information, referral and assistance.

(D) - (E) (No change.)

(8) The area agency on aging shall collaborate [ and/or partner ] with local, state and federal entities to provide education and outreach. Such entities may include but are not limited to the Texas Department of Insurance, Texas Legal Services Center, Texas Medical Foundation, the Centers for Medicare and Medicaid Services [ Health Care Financing Administration ] and the Social Security Administration.

(9) (No change.)

§260.11.Ombudsman Services.

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

(1) Advocacy--Actions by or on the behalf of individuals and[ /or ] groups to ensure that they receive the benefits and services to which they may be entitled, and to ensure that their rights guaranteed by law are protected and enforced.

(2) Advocacy plan--An action plan developed to address the needs and quality of care issues of residents that are developed at the state, regional and individual nursing home [ facility ] levels.

(3) (No change.)

(4) Board--The Board on Aging of the Texas Department on Aging.

(5) Certified staff ombudsman--An individual who has successfully completed the required certification training and test as prescribed by the Office and who has been recommended by the local ombudsman entity and approved by the State Long-Term Care Ombudsman to serve as an advocate for long-term care facility residents and who has been hired by the local ombudsman entity as paid staff to participate in the administration of the ombudsman program. A certified staff ombudsman shall be a representative of the Office.

(6) [ (4) ] Certified volunteer ombudsman--An individual who has successfully completed the required certification training and test as prescribed by the Office and who has been recommended by a local ombudsman entity [ program ] and approved by the State Long-Term Care Ombudsman to serve as an advocate for long-term care facility residents and participate in the ombudsman program. A certified volunteer ombudsman shall be a representative of the Office.

(7) [ (5) ] Clients or recipients of services-- Residents of [ Persons who reside in ] long-term care facilities.

(8) [ (6) ] Contractor--The performing entity [ agency ] in a contract with the Department. The word contractor when used in this rule and related policies and procedures is synonymous with grantee or other entities as defined by the Board , by rule or order [ on Aging, Texas Department on Aging ].

(9) [ (7) ] Conflict of interest--Status of an individual applying to be a certified volunteer ombudsman must be revealed to the Office of the State Long-Term Care Ombudsman and resolved prior to service. A conflict of interest exists if an individual applying to be a certified volunteer ombudsman or an immediate family member (first degree of consanguinity or affinity) of that individual has any one or more of the following:

(A) direct involvement in the licensing or certification of a long-term care facility or of a provider of a long-term care service;

(B) ownership or direct investment interest in a long-term care service;

(C) is employed by or participates in the management of a long-term care facility;

(D) receives or has the right to receive, directly or indirectly, remuneration under a compensation arrangement with an owner or operator of a long-term care facility; or

(E) has a family member residing in a long-term care facility in which the representative is assigned or provides advocacy.

(10) [ (8) ] Department--The Texas Department on Aging, the single state agency for Older Americans Act programs.

(11) [ (9) ] Friendly [ Friends & Family ] Visitor--A volunteer who has a relationship with the local ombudsman entity but who does not participate in complaint resolution. A Friendly [ Friends & Family ] Visitor receives orientation and training as prescribed by the Office but does not receive certification, is not a representative of the Office and shall not have access to resident records. This is an optional program operated at the discretion of the local ombudsman entity.

(12) [ (10) ] In-service--A planned educational effort conducted or coordinated by professional staff or certified volunteers.

(13) [ (11) ] Local ombudsman entity--An area agency on aging or other entity, as defined by the Board [ on Aging, Texas Department on Aging ], by rule or order which is responsible for implementation of all aspects of the local ombudsman program [ entity ] as defined in these rules.

(14) [ (12) ] Long-term care facility--A facility that is licensed or regulated or that is required to be licensed or regulated by the Texas Department of Human Services. [ See nursing facility/home and assisted living facility. ]

(15) [ (13) ] Managing local ombudsman--The professional staff person at the regional level who directs the local ombudsman program. A managing local ombudsman is a certified staff ombudsman and shall be a representative of the Office [ entity ].

(16) [ (14) ] Nursing [ facility/ ]home--An institution that provides organized and structured nursing care and service, and is subject to licensure under the [ establishment that furnishes, in one or more facilities, food and shelter to four or more persons who are unrelated to the proprietor of the establishment; and provides minor treatment under the direction and supervision of a physician licensed by the Texas State Board of Medical Examiners, or other services that meet some need beyond the basic provision of food, shelter, and laundry. The nursing facility is under the scope of ] Health and Safety Code, Chapter 242 [ and may also be certified to participate in the Medicaid Title XIX program ].

(17) [ (15) ] Office--The Office of the State Long-Term Care Ombudsman, an independent division of the Texas Department on Aging.

(18) [ (16) ] Ombudsman intern--A volunteer who has been admitted to the local training program as a potential certified volunteer ombudsman.

(19) [ (17) ] Professional--Refers to an individual who has obtained a four-year bachelor degree in aging-related areas or human services, or has equivalent qualifying experience as a substitute for a degree. Such substitution shall be consistent with the employing entity's personnel policies.

(20) [ (18) ] State Long-Term Care Ombudsman, also known as the State Ombudsman--The person designated by the Executive Director of the [ , Texas ] Department [ on Aging, ] as Chief Administrator of the Office of the State Long-Term Care Ombudsman, in accordance with the requirements of the Older Americans Act, [ §712(a)(2) ] regarding expertise and experience. The State Ombudsman is accountable to the Executive Director of the [ , Texas ] Department [ on Aging, ] for program and personnel matters.

[(b) Legal Authority.]

[(1) Ombudsman Rules are promulgated under the authority of Texas Human Resources Code, Chapter 101, and the Older Americans Act of 1965, Chapter VII, as amended.]

[(2) The Board on Aging of the Texas Department on Aging shall make policy decisions regarding these rules and define service priorities, which shall include advocacy in long-term care facilities licensed or facilities providing care that are required to be licensed, by the Texas Department of Human Services.]

(b) [ (c) ] Purpose. The purpose of this rule is to assure the development and operation of an ombudsman [ a ] program, which advocates for the rights of residents and their families to receive the highest quality of care and quality of life in long-term care facilities and which provides services to assist in protecting the health, safety and welfare of residents .

(c) [ (d) ] Philosophy. Persons who are unable to care for themselves are entitled to dependable and consistent care that includes:

(1) a safe and healthy environment;

(2) satisfaction of nutritional needs;

(3) medical services, including physical, mental and psychosocial rehabilitation;

(4) an environment that promotes and maintains the individual's dignity, self-determination, communication and protection of individual rights.

(d) [ (e) ] Eligibility. Residents of long-term care facilities aged 60 and above are eligible for Ombudsman services. Residents who are under 60 years of age and require advocacy services may be served if the advocacy effort benefits 60-year-old and older residents.

(e) Access. The Office shall assure that managing local ombudsmen and certified staff ombudsmen shall be granted access to long-term care facility residents and their records if consent of the resident or the legal representative of the resident is obtained or as permitted by the Older Americans Act and state statute as defined in Ombudsman procedures.

(f) Responsibilities of contractors to operate local ombudsman entities. Contractors shall be either an area agency on aging or an entity defined by the Board [ on Aging, Texas Department on Aging ]. The local ombudsman entity shall:

(1) be an organization with a responsive and visible presence in its region. It shall:

(A) perform the duties as outlined in the OAA consistent with these rules and the procedures required by the Office:

(i) provide services to protect the health, safety, welfare and rights of residents;

(ii) ensure that residents have regular, timely access to representatives of the program and have timely responses to complaints and request for assistance;

(iii) identify, investigate and resolve complaints made by or on behalf of residents that relate to action, inaction, or decisions, that may adversely affect the health, safety, welfare, or rights of the residents;

(B) [ (A) ] be an expert and reliable source of information for families seeking information on long-term care placement or general requests for assistance;

(C) [ (B) ] have a visible and active presence in long-term care facilities [ the nursing facility ] sufficient for clients and families to have access to ombudsman services that promote or improve quality of care and that result in the timely identification and resolution of complaints and concerns; In addition to regular visits by certified ombudsmen, each licensed nursing home shall be visited a minimum of one time, and more often as necessary, each year by the managing local ombudsman or a paid staff ombudsman of the local ombudsman entity. The local ombudsman [ Ombudsman ] entity may establish affiliations with other volunteer groups to exchange information and identify advocacy needs to support facility coverage.

(D) [ (C) ] coordinate with state, regional and local agencies and be recognized as an active member in the continuum of care in the communities it serves;

(E) [ (D) ] have a mutually positive referral relationship with the Texas Department of Human Services and the Texas Department of Protective and Regulatory Services; and

(F) [ (E) ] be a catalyst for community involvement in long-term care facilities and be viewed as a credible source of information for the community, the regulatory system, and the nursing home industry;

(2) [ shall ] appoint the managing local ombudsman who shall meet the requirements of a professional. In addition, two [ Two ] years of direct services to the elderly or experience in ombudsman services, advocacy, dispute resolution, or volunteer management are preferred. [ The managing local ombudsman and other local ombudsmen shall be granted access to long-term care facility resident records if consent of the resident or the legal representative of the resident is obtained or as permitted by §712(b)(1) of the Older Americans Act. ]

(3) have adequate staff to manage all aspects of the program and shall designate a [ professional staff person as ] the [ local ] managing local ombudsman. [ The local ombudsman entity shall be a subdivision of the Office. The managing local ombudsman and other local ombudsmen shall be representatives of the Office; ]

(4) require the managing local ombudsman, or other staff ombudsmen as appropriate, to attend all continuing education training sponsored or provided by the office, and be responsible for obtaining the content of the training, when excused from attending training by the Office.

(5) [ (4) ] establish and maintain a complaint management system that at [ that includes as ] a minimum shall :

(A) obtain or provide training to interns and certified volunteer ombudsmen on handling complaints and dispute resolution;

(B) have an intake process for receiving complaints;

(C) have a written process for certified volunteer ombudsmen to identify and investigate complaints and concerns with referral to the managing local ombudsman or his/her designee [ ombudsmen ] when assistance is needed;

(D) have a written process for equitably resolving complaints; [ and ]

(E) have a process for reporting complaint activity as required by the local ombudsman entity and the Office; and

(F) have a written process to assure that complaint and client-oriented material remain confidential and is protected from [ unauthorized ] access by unauthorized [ from ] persons ; [ outside of the ombudsman program and their immediate supervisor. ]

(6) [ (5) ] establish a process to identify and remove conflicts of interest as prescribed in procedures established by the Office;

(7) [ (6) ] establish and maintain a volunteer management system in which the local Ombudsman entity shall:

(A) analyze the number of volunteers needed for administrative duties, other activities, and [ or ] facility coverage[ , with the total number of certified ombudsmen being at least the number prescribed by the Legislative Budget Board of the Texas Legislature; ]

(B) recruit individuals to become certified volunteer ombudsmen using all appropriate means and conduct appropriate follow-up with individuals who expressed interest so that the total number of certified staff and volunteer ombudsmen are at least the number prescribed by the Legislative Budget Board of the Texas Legislature ;

(C) process applicants through the completion of an application that contains all minimum information required by the Office to include the completion of a criminal background check of all volunteer and paid staff ombudsmen prior to certification . Supervise the completion of certification training and internship; make recommendation for certification of individuals to the State Long-Term Care Ombudsman and assign certified ombudsmen to appropriate long-term care facilities;

(D) provide state-approved initial certification training and provide 12 hours of local continuing education each federal fiscal year, for each representative of the Office;

(E) provide state-approved orientation and training for Friendly [ Friends & Family ] Visitors, if such a program is operated by the local ombudsman entity;

(F) support and supervise volunteers and staff involved in the local program during their service;

(G) promote [ volunteer ] retention through regular communication, recognition, motivational activities, and feedback of satisfaction with program services;

(H) establish and use a [ volunteer ] grievance and complaint system; and

(I) develop exit procedures to include input from the certified volunteers and staff who leave the ombudsman program and notification to the Office of their [ inactive ] status with their written comments [ from volunteers and staff ombudsman ].

(8) [ (7) ] assure that residents, families, and complainants have access to ombudsman services during the normal business week at no cost through a toll-free number or acceptance of collect calls with acknowledgement of the receipt of the complaint within one business day [ twenty-four hours ]. The telephone number of the local ombudsman entity and the managing local ombudsman shall be listed under the area agency on aging listing in accordance with current Department policy;

(9) [ (8) ] support the formation of family and resident councils in each facility of the region, in an effort to provide advocacy resources to promote quality of care;

(10) [ (9) ] provide informational resources relating to quality of care and resident-centered care to residents, family, and staff of each nursing home [ facility ] in the region. Be available to provide in-service training in long-term care facilities in the region. Certified volunteer or paid staff ombudsmen may conduct such in-service training;

(11) [ (10) ] coordinate with regional administrators or their designees of the Texas Department of Human Services Long-Term Care Regulatory Services division serving the region at least quarterly, and the Texas Department of Protective and Regulatory Services as needed, to develop efficient referral, communication, and problem-solving procedures;

(12) [ (11) ] participate in survey activities with the Texas Department of Human Services in accordance with the cooperative agreement between the Department and the Texas Department of Human Services;

(13) [ (12) ] submit program performance and other reports in accordance with requirements established by the Office and the Department;

(14) [ (13) ] develop and implement individual nursing home [ facility ] advocacy plans followed by development and implementation of a regional advocacy plan that is based on an analysis of individual nursing home [ facility ] advocacy plans and other sources of information [ and ] that supports the achievement of the highest levels of quality of care and quality of life for residents;

(15) [ (14) ] promote local awareness of the ombudsman entity through the frequent use of local and regional resources, including the media, in order to provide visibility to the program, to include listing the phrase, "[ An ] Advocate for Nursing Home [ Facility ] Residents," in all brochures, publications, and media activities; and

(16) [ (15) ] encourage coordination with citizen, membership and advocacy organizations to support quality of care and increase community involvement with and awareness of long-term care services.

(g) Responsibilities of Certified Volunteer Ombudsmen: A certified volunteer ombudsman shall execute the purposes of the ombudsman program as outlined in this rule and under the supervision of the managing local ombudsman [ have successfully completed an internship, or equivalent experience as determined by the Office, and have completed required initial certification training prior to engaging in independent complaint resolution. A certified volunteer ombudsman shall be a representative of the Office ].

§260.15.Criteria for Administering Carryover of Unexpended Funds.

(a) Purpose. This chapter establishes the responsibilities of the Department for administering the carryover of unexpended funds from one fiscal year to another and establishes the criteria under which an area agency on aging may receive unexpended funds.

(b) Approval of Carryover.

(1) An amount up to five percent or $125,000, [ $100,000 ] whichever is less, of the total Title III and Title VII current year funds allocated to each area agency on aging may be eligible for consideration for carryover approval.

(2) (No change.)

(c) (No change.)

(d) Eligibility for Participation in the Distribution of the Carryover Pool. An area agency on aging must meet the following performance criteria to participate in the reallocation of the statewide carryover pool:

(1) 100% of critical reports submitted on time. Critical reports are defined as reports included on the TDoA Reports Due Date Schedule ;

(2) area agency on aging negotiated key performance measure projection targets met within ± 5% (Applies to measures of performance for activities beginning federal fiscal year 2004);

(3) [ (2) ] adherence to end of year carryover fiscal guidelines outlined above in subsection (b)(1);

(4) [ (3) ] no level three or level four violations cited during the previous fiscal year in accordance with §254.13 of this title (relating to Compliance with Contractor Responsibilities, Rewards and Sanctions);

(5) [ (4) ] no unpaid amounts due to the Department for disallowed costs for the fiscal year from which carryover funds are being reallocated unless a prior payment agreement has been established or is pending final Department approval;

(6) [ (5) ] adherence to all requirements for adequate proportion for eligible in-home services, access services and legal services unless waiver from such requirements has been obtained from the Department; and

(7) [ (6) ] adherence to all requirements for maintenance of effort for the Ombudsman program.

(e) (No change.)

§260.17.Approval of Direct Services Applications from Area Agencies on Aging.

(a) Purpose. This rule [ chapter ] establishes policies that apply when an area agency [ agencies ] on aging determines a [ determine the ] need exists to provide a service(s) directly to older persons and that requests a waiver from the general prohibition against providing direct services [ the elderly ].

(b) Conditions for Request. In accordance with the Older Americans Act, §307(a) (8) [ (10) ], as amended, one of the following three conditions must exist to establish [ , establishing ] the basis for approval of a waiver for an area agency on aging to provide direct services[ . These include ]:

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

(c) Services Exempted From Waiver Request. The following services may be provided directly by an area agency on aging without a specific waiver request:

[(1) outreach and advocacy;]

(1) [ (2) ] Information, Referral, and Assistance [ information and assitance ];

(2) Care Coordination;

(3) Caregiver Support Coordination;

[(3) case management]

(4) Benefits Counseling [ benefits counseling ];

(5) Ombudsman; [ ombudsman; and ]

(6) Caregiver Program Development;

(7) Caregiver Education & Training; and

(8) [ (6) ] services purchased under the direct purchase of service (DPS) procurement methodology in accordance with §260.19(c)(1) of this title (relating to Direct Purchase of Services).

(d) Waiver Application Process.

(1) Submission of Waiver Application. An area agency on aging may submit a waiver application to provide a direct service through the following:

(A) (No change.)

(B) Emergency Request. When an uncontrollable or unforeseen [ emergency ] situation creates an imminent threat [ threatens ] the maintenance of service delivery.

(2) Documentation Requirements. To permit the Department to render a fact-based decision on the direct service waiver application, the area agency on aging must submit documentation to support its [ their ] position for supplying the service(s) directly. Documentation must include:

(A) - (C) (No change.)

(D) period of time for which the waiver is requested; [ term of waiver requested. ]

(E) any information requested by the Department.

(3) Notification of Waiver Decision [ Department Response ].

(A) As part of the area plan and/or area plan amendment process, standard request for waiver shall be approved within 30 working days following receipt, review and approval of all necessary documentation in accordance with paragraph (2) of this subsection. Failure to provide all necessary and acceptable documentation within 30 days following request for such documentation by the Department shall warrant denial of the request by the Department. [ The Department within 30 calendar days following receipt of the area plan and/or area plan amendment shall approve or deny standard requests for waiver. ]

(B) Emergency waivers shall be approved or denied within three working days following receipt of the request for waiver conditioned upon receipt and review of all necessary documentation in accordance with subsection (d)(2) of this section. Interim approval of the emergency waiver shall be for a period not to exceed ten working days. Failure to provide all necessary and acceptable documentation within three days following request for such documentation by the Department shall warrant denial of the request by the Department. [ The Department shall acknowledge emergency requests for waiver by the close of business on the first regular workday following the date on which the request for waiver is received. ]

(4) (No change.)

[(5) Notification of Waiver Approval.]

[(A) As part of the area plan and/or area plan amendment process, standard requests for waiver shall be approved within 10 working days following receipt, review and approval of all necessary documentation in accordance with subsection (d)(2). Failure to provide all necessary and acceptable documentation within 30 days following request for such documentation by the Department shall warrant denial of the request by the Department.]

[(B) Emergency waivers shall be approved or denied within three working days following receipt of the request for waiver conditioned upon receipt, review and approval of all necessary documentation in accordance with subsection (d)(2) of this section. Interim approval shall be for a period not to exceed 10 working days. Failure to provide all necessary and acceptable documentation within 3 days following request for such documentation by the Department shall warrant denial of the request by the Department.]

§260.19.Direct Purchase of Service (DPS).

(a) (No change.)

(b) The DPS procurement method is used:

(1) - (4) (No change.)

(5) to assist the area agency on aging in meeting key performance measures projection targets .

(c) DPS System Structure.

(1) Vendor Pool. A vendor pool shall be developed and maintained by the area agency on aging using:

(A) - (C) (No change.)

(2) Vendor Agreement. A vendor agreement shall be developed by the area agency on aging [ for all service providers ] in accordance with the standards and criteria established by the area agency on aging and TDoA to ensure service providers meet all applicable [ required ] certifications, standards and criteria established by state law.

(3) Service Authorization.

(A) Service authorization may be provided by an [ any designated ] area agency on aging approved access and assistance staff member either by phone or in person [ staff member(s) and/or staff member(s) of any contracted access and assistance unit as approved by the area agency on aging ].

(B) If the following factors are identifiable or measurable, the area agency on aging must include them in the service authorizations: the number of units authorized, frequency and duration of the service to be purchased. [ Service Authorization must include the number of units authorized, frequency and duration of the service to be purchased. ]

(C) The vendor list from which a service is authorized shall [ must ] be regularly reviewed and approved by the area agency on aging.

(d) (No change.)

(e) Program Income. Program income shall be accounted for in accordance [ with ] §260.2 of this title.

(f) Quality Assurance. Quality assurance of services provided by vendors shall be determined through reassessment and other follow-up activities with the client conducted by the area agency on aging. The area agency on aging shall require monthly reports from active vendors [ the vendor ]. A quality assurance review is conducted to ensure a satisfactory performance in the following areas to determine whether a vendor has met the service criteria established in the vendor agreement and whether :

(1) - (4) (No change.)

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on March 3, 2003.

TRD-200301503

Gary Jessee

Director of the Office of AAA Support and Operations

Texas Department on Aging

Earliest possible date of adoption: April 13, 2003

For further information, please call: (512) 424-6857

40 TAC §260.14, §260.21

(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 Texas Department on Aging or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The repeals are proposed under Texas Government Code, §2161.003, which provides the Texas Department on Aging with the authority to promulgate rules governing the operation of the Department.

No other statutes, articles or codes are affected by the proposed repeals.

§260.14.Corporate Eldercare.

§260.21.Public Hearing Procedures for Area Agencies on Aging.

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 March 3, 2003.

TRD-200301504

Gary Jessee

Director of the Office of AAA Support and Operations

Texas Department on Aging

Earliest possible date of adoption: April 13, 2003

For further information, please call: (512) 424-6857