TITLE 25.HEALTH SERVICES

Part 2. TEXAS DEPARTMENT OF MENTAL HEALTH AND MENTAL RETARDATION

Chapter 412. LOCAL AUTHORITY RESPONSIBILITIES

Subchapter K. ACCESS TO MENTAL RETARDATION SERVICES AND SUPPORTS

The Texas Department of Mental Health and Mental Retardation (department) proposes new §§412.501-412.503, 412.504-412.508, 412.511-412.515, 412.517-412.519, 412.521, and 412.523-412.525 of new Chapter 412, Subchapter K, governing access to mental retardation services and supports.

The new subchapter describes how a mental retardation authority (MRA) is to assist an individual with mental retardation or -- on the individual's behalf, the individual's legally authorized representative (LAR) or an actively involved person -- to access the department's array of services and supports for the mental retardation priority population. Incorporated in the new sections are provisions currently found in other department rules, including Chapter 412, Subchapter F, governing Continuity of Services -- State Mental Retardation Facilities; Chapter 415, Subchapter D, governing Diagnostic Eligibility for Services and Supports -- Mental Retardation Priority Population and Related Conditions; Chapter 419, Subchapter D, governing Home and Community-based Services (HCS) Program; Chapter 419, Subchapter N, governing Texas Home Living (TxHmL) Program; and Chapter 419, Subchapter E, governing ICF/MR Programs. Appropriate revisions to these department rules will be addressed following the adoption of the new subchapter.

The new subchapter also incorporates certain provisions from the department's current performance contract with MRAs.

In some instances, the new sections expand upon the existing rules. For example, §412.507 directs an MRA to explain the array of services and supports available through the department or other funding sources to an individual and legally authorized representative (LAR) or -- when the individual does not have an LAR -- an actively involved person, if available, not only upon the initial inquiry about services and supports, as required by existing department rules in Chapter 415, Subchapter D and Chapter 419, Subchapter D, but also when the MRA makes an offer of the services and supports for which the individual has been waiting. In addition, the MRA is required to offer to provide an explanation of the array of services and supports while making the required annual contact of the primary correspondent for an individual whose name is on the waiting list. In another example, §412.508 addresses an MRA's responsibility for placing the name of an individual on the department's waiting list for services and supports; existing department rules address the waiting list only in relation to waiver programs. The new section draws upon provisions in the performance contract and in the department's Mental Retardation Waiting List Maintenance Procedures Manual, as well as from the HCS Program rules in Chapter 419, Subchapter D.

The new sections also include subject matter not addressed in existing department rules. For example, §412.505 provides guidelines for determining an individual's designated MRA and §412.511 addresses requirements for enrollment of an individual in general revenue funded services and supports.

The sections of the new subchapter are arranged in divisions. Division 1, governing general provisions, describes the purpose and application of the subchapter and defines terms and phrases used in the subchapter.

Division 2, governing introduction of department services and supports, describes in §412.504 the department's array of services and supports and references other department rules which describe eligibility criteria for the various programs which fund those services and supports. Guidelines for determining an individual's designated MRA are described in §412.505 and the responsibilities of a designated MRA are described in §412.506. An extensive description of the department's expectations of an MRA for providing an explanation of services and supports to an individual and LAR or actively involved person is provided in §412.507. An MRA's responsibilities for the department's waiting list are addressed in §412.508, which draws upon the provisions of existing department rules, the department's waiting list manual, and the performance contract.

In Division 3, governing MRA enrollment and admission responsibilities, §412.511 addresses requirements for enrollment of an individual in general revenue funded services and supports; §412.512 addresses requirements for enrollment of an individual in department waiver programs; §412.513 addresses requirements for enrollment in the Intermediate Care Facilities for Persons with Mental Retardation (ICF/MF) Program; §412.514 describes how an MRA must conduct permanency planning for individuals under 22 years of age for whom services in a waiver program group home or an ICF/MR are sought; and §412.515 describes responsibilities specific to an individual's admission to a state mental retardation facility (state MR facility).

In Division 4, governing transition within department services and supports, §412.517 addresses requirements of an MRA in response to a referral from a state MR facility; §412.518 addresses requirements of an MRA in response to a notification from a state mental health facility (state MH facility) or a mental health authority that an individual who has or may have mental retardation, a pervasive developmental disorder, or a related condition has been admitted to a state MH facility; and §412.519 addresses requirements of an MRA that is notified by a community-based ICF/MR that an individual, LAR, or actively involved person is interested in exploring an alternative living arrangement.

In Division 5, other MRA responsibilities are described in §412.521, which addresses an MRA's response when an individual or LAR appeals the denial, involuntary reduction, or termination of services and supports.

Division 6, governing documents, references, and distribution, lists in §412.523 all documents and forms referenced in the sections and describes how copies may be obtained, lists in §412.524 all federal and state statutes and regulations referenced in the subchapter, and describes in §412.525 those persons and entities to which copies of the new subchapter must be distributed.

Cindy Brown, chief financial officer, has determined that for each year of the first five year period that the proposed new sections are in effect, enforcing or administering the sections does not have foreseeable implications relating to costs or revenues of state and local government. It is not anticipated that the proposed new sections will have an adverse economic effect on small businesses or micro-businesses. It is not anticipated that there will be any additional economic cost to persons required to comply with the proposed new sections. It is not anticipated that the proposed new sections will affect a local economy.

Barry Waller, director, Long Term Services and Supports, has determined that, for each year of the first five-year period the proposed new sections are in effect, the public benefit expected is increased consistency among MRAs in the processes and procedures by which services and supports are accessed by or on behalf of individuals with mental retardation.

Comments concerning the proposed new sections must be submitted in writing by 5 p.m., Monday, February 9, 2004, to Linda Logan, director, Policy Development, by mail to P.O. Box 12668, Austin, Texas 78711, by fax to 512/206-4744, or by e-mail to policy.co@mhmr.state.tx.us.

A hearing to accept oral and written testimony from members of the public concerning the proposal has been scheduled for 1:30 p.m., Monday, February 2, 2004, in the department's Central Office Auditorium in Building 2 at 909 West 45th Street, in Austin, Texas. Persons requiring an interpreter for the deaf or hearing impaired should contact the department's Central Office operator at least 72 hours prior to the hearing at TDD (512) 206-5330. Persons requiring other accommodations for a disability should notify Long Term Services and Supports in Central Office at least 72 hours prior to the hearing at (512) 206-4706 or at the TDY phone number of Texas Relay, 1-800-735-2988.

1. GENERAL PROVISIONS

25 TAC §§412.501 - 412.503

The new sections are proposed under Texas Health and Safety Code (THSC), §532.015(a), which provides the Texas Mental Health and Mental Retardation Board (board) with broad rulemaking authority; §534.052, which requires the board to adopt rules necessary and appropriate to ensure the adequate provision of community-based services and supports through an MRA; §591.004, which requires the board to adopt rules that ensure the implementation of the Persons with Mental Retardation Act (THSC, Title 7, Subtitle D); and §592.002, which requires the board to adopt rules that ensure the implementation of the rights enumerated in Chapter 592; §593.002, which requires the board to adopt rules that prescribe reasonable efforts to obtain consent and require documentation of those efforts.

The proposed new sections affect THSC, Title 7, Subtitle D; THSC, Chapter 534, Subchapter B; and THSC, Chapter 592.

§412.501.Purpose.

The purpose of this subchapter is to describe the responsibilities of a mental retardation authority (MRA) for assisting an individual who:

(1) requests services and supports or for whom services and supports are requested;

(2) is moving from a state mental retardation facility (state MR facility) to an alternative living arrangement;

(3) is discharged from a state mental health facility (state MH facility); or

(4) is residing in a community-based intermediate care facility for persons with mental retardation (ICF/MR) and has been offered a waiver program vacancy.

§412.502.Application.

This subchapter applies to mental retardation authorities (MRAs).

§412.503.Definitions.

The following terms and phrases, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise:

(1) Actively involved person -- For an individual who lacks the ability to provide legally adequate consent and who does not have a legally authorized representative, a person whose significant and ongoing involvement with the individual is determined by the individual's designated MRA to be supportive of the individual based on the person's:

(A) observed interactions with the individual;

(B) knowledge of and sensitivity to the individual's preferences, values, and beliefs;

(D) advocacy for the individual's preferences, values, and beliefs.

(2) CARE -- The department's Client Assignment and Registration System, a database into which an MRA, state MR facility, or state MH facility enters demographic and other data about an individual who has requested services and supports (or on whose behalf services and supports have been requested) or who is receiving services and supports.

(3) Community Resource Coordination Group (CRCG) -- A local interagency group composed of public and private agencies, organizations, and families that develops a coordinated service plan for an individual with complex needs. The group's role and responsibilities are described in the Memorandum of Understanding on Coordinated Services to Persons Needing Services from More than One Agency, available on the website of the Texas Health and Human Services Commission at www.hhsc.state.tx.us/crcg/crcg.htm.

(4) Department -- The Texas Department of Mental Health and Mental Retardation.

(5) Designated MRA -- The MRA responsible for assisting an individual as described in this subchapter.

(A) Guidelines for determining an individual's designated MRA are described in §412.505 of this title (relating to Guidelines for Determining an Individual's Designated MRA).

(B) The responsibilities of an individual's designated MRA are described in §412.506 of this title (relating to Responsibilities of an Individual's Designated MRA).

(6) DMR (determination of mental retardation) -- An assessment conducted as described in §415.155 of this title (relating to Determination of Mental Retardation (DMR)) by a TDMHMR-certified psychologist, a psychologist licensed to practice in Texas, or a physician licensed to practice in Texas to determine if an individual meets the criteria for a diagnosis of mental retardation.

(7) General revenue -- Funds appropriated by the Texas Legislature for use by the department.

(8) ICAP (Inventory for Client and Agency Planning) -- A validated, standardized assessment that measures the level of supervision an individual requires and, thus, the amount and intensity of services and supports the individual needs.

(9) ICF/MR -- An intermediate care facility for persons with mental retardation or a related condition.

(10) ICF/MR Program -- The Intermediate Care Facilities for Persons with Mental Retardation Program, which provides Medicaid-funded residential services to individuals with mental retardation or a related condition.

(11) IDT (interdisciplinary team) -- Persons convened by an MRA as described in §412.515 of this title (relating to Responsibilities for Admission to a State MR Facility) or a state MR facility as described in §412.517 of this title (relating to Referral from a State Mental Retardation Facility) for the purpose of assessing an individual's treatment, training, and habilitation needs and making recommendations for services and supports. The team includes:

(A) the individual;

(B) if applicable, the individual's LAR or an actively involved person;

(D) persons specified by the convening MRA or state MR facility who are:

(i) professionally qualified by certification or licensure and have special training and experience in the diagnosis and habilitation of individuals with mental retardation; or

(ii) directly involved in the delivery of services and supports to the individual.

(12) Individual -- A Texas resident who is or is believed to be a member of the department's MR priority population.

(13) Interstate transfer -- The admission of an individual to a state MR facility directly from a state-operated facility in another state.

(14) LAR (legally authorized representative) -- A person authorized by law to act on behalf of an individual with regard to a matter described in this subchapter, and may include a parent, guardian, or managing conservator of a minor, or the guardian of an adult.

(15) Legally adequate consent -- Consistent with Texas Health and Safety Code, §591.006, consent given by a person when each of the following conditions has been met:

(A) legal status: The person giving the consent:

(i) is 18 years of age or older, or younger than 18 years of age and is or has been married or had the disabilities of minority removed for general purposes by court order as described in the Texas Family Code, Chapter 31; and

(ii) has not been determined by a court to lack capacity to make decisions with regard to the matter for which consent is being sought;

(B) comprehension of information: The person giving the consent has been informed of and comprehends the nature, purpose, consequences, risks, and benefits of and alternatives to the procedure, and the fact that withholding or withdrawal of consent shall not prejudice the future provision of care and services to the person; and

(16) Local service area -- A geographic area composed of one or more Texas counties.

(17) Mental retardation -- Consistent with THSC, §591.003, significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the developmental period.

(18) MHA (mental health authority) -- As defined in THSC, §531.002, an entity to which the Texas Mental Health and Mental Retardation Board (Texas MHMR Board) delegates its authority and responsibility within a specified region for planning, policy development, coordination, and resource development and allocation, and for supervising and ensuring the provision of mental health services to persons in one or more local service areas.

(19) MRA (mental retardation authority) -- As defined in THSC, §531.002, an entity to which the Texas MHMR Board delegates its authority and responsibility within a specified region for planning, policy development, coordination, and resource development and allocation, and for supervising and ensuring the provision of mental retardation services and supports to persons in one or more local service areas.

(20) MR priority population -- Those persons who meet one or more of the following descriptions:

(A) have mental retardation;

(B) have a pervasive developmental disorder (PDD);

(D) are nursing facility residents who are eligible for specialized services for mental retardation or a related condition pursuant to §1919(e)(7) of the Social Security Act; or

(E) are children eligible for early childhood intervention (ECI) services provided in accordance with Chapter 621 of this title (relating to Early Childhood Intervention Services).

(21) Ombudsman -- Consistent with THSC, §533.039, the department's Office of Consumer Services and Rights Protection/Ombudsman that is responsible for assisting an individual and LAR or actively involved person when an individual has been denied services and supports by the department, a department program or facility, or an MRA.

(22) PDD (pervasive developmental disorder) - As described in the most current edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM), a severe and pervasive impairment in the developmental areas of reciprocal social interaction skills or communication skills, or the presence of stereotyped behaviors, interests, and activities manifested during the developmental period, usually before 10 years of age.

(23) Person-directed planning -- A process that empowers an individual and, on the individual's behalf, an LAR or actively involved person to direct the development of a plan of services and supports.

(24) Permanency planning -- A philosophy and planning process that focuses on the outcome of family support for an individual under 22 years of age by facilitating a permanent living arrangement in which the primary feature is an enduring and nurturing parental relationship.

(25) Planning team -- Persons convened by an individual's designated MRA to develop a person-directed plan for an individual as described in §412.511 of this title (relating to Responsibilities for General Revenue Funded Services and Supports) or §412.512 of this title (relating to Responsibilities for Waiver Programs). The team includes:

(A) the individual;

(B) if applicable, the LAR or actively involved person:

(D) other persons chosen by the individual, LAR, or actively involved person.

(26) Primary correspondent -- The individual, LAR, or actively involved person designated in CARE as the contact for an individual whose name is on the waiting list.

(27) Program provider -- An entity with whom the department has a provider agreement to provide waiver program services or ICF/MR Program services.

(28) Related condition -- As defined in the Code of Federal Regulations (CFR), Title 42, §435.1009, a severe and chronic disability that:

(A) is attributable to:

(i) cerebral palsy or epilepsy; or

(ii) any other condition, other than mental illness, found to be closely related to mental retardation because the condition results in impairment of general intellectual functioning or adaptive behavior similar to that of persons with mental retardation, and requires treatment or services similar to those required for those persons with mental retardation;

(B) is manifested before the person reaches 22 years of age; and

(D) results in substantial functional limitation in three or more of the following areas of major life activity:

(i) self-care;

(ii) understanding and use of language;

(iii) learning;

(iv) mobility;

(v) self-direction; and

(vi) capacity for independent living.

(29) Service coordination -- Assistance in accessing medical, social, educational, and other appropriate services and supports to help an individual achieve a quality of life and community participation acceptable to the individual and LAR or actively involved person.

(30) Services and supports -- Assistance to an individual through an MRA or a program provider, which could include one ore more of the following:

(A) eligibility determination;

(B) service coordination;

(D) day training services; and

(E) residential assistance and services.

(31) Subaverage general intellectual functioning -- Consistent with THSC, §591.003, measured intelligence on standardized general intelligence tests of two or more standard deviations (not including standard error of measurement adjustments) below the age-group mean for the tests used.

(32) State MH facility (state mental health facility) -- A state hospital or state center with an inpatient psychiatric component operated by the department.

(33) State MR facility (state mental retardation facility) -- A state school or a state center with a mental retardation residential component operated by the department. A state MR facility is an ICF/MR.

(34) TGC -- The Texas Government Code, which compiles Texas statutes relating to the general operation of Texas government.

(35) THSC -- The Texas Health and Safety Code, which compiles Texas statutes relating to health and safety.

(36) Waiting list -- The department's registry in CARE of:

(A) the names of individuals waiting to receive services and supports;

(B) the services and supports requested by those individuals or on their behalf; and

(37) Waiver program services -- Home and community-based services provided through a Medicaid waiver program approved by Centers for Medicare and Medicaid Services (CMS) as described in §1915(c) of the Social Security Act.

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 December 29, 2003.

TRD-200308905

Rodolfo Arredondo

Chair, Texas MHMR Board

Texas Department of Mental Health and Mental Retardation

Earliest possible date of adoption: February 8, 2004

For further information, please call: (512) 206-5232

2. DEPARTMENT SERVICES AND SUPPORTS

25 TAC §§412.504 - 412.508

The proposed new sections affect THSC, Title 7, Subtitle D; THSC, Chapter 534, Subchapter B; and THSC, Chapter 592.

§412.504.Department's Array of Services and Supports.

(a) The department's array of services and supports is funded by:

(1) personal funds or third-party insurance other than Medicaid;

(2) the following Medicaid programs:

(A) Intermediate Care Facilities for Persons with Mental Retardation (ICF/MR) Program; and

(B) waiver program services authorized by the Centers for Medicare and Medicaid Services (CMS) in accordance with §1915(c) of the Social Security Act; and

(3) general revenue.

(b) Eligibility criteria for Medicaid-funded programs are described in:

(1) Chapter 412, Subchapter F of this title (relating to Continuity of Services -- State Mental Retardation Facilities);

(2) Chapter 412, Subchapter J of this title (relating to Service Coordination);

(3) Chapter 419, Subchapter D of this title (relating to Home and Community-based Services (HCS) Program);

(4) Chapter 419, Subchapter E of this title (relating to ICF/MR Programs); and

(5) Chapter 419, Subchapter N of this title (relating to Texas Home Living (TxHmL) Program).

(1) Chapter 411, Subchapter I of this title (relating to TDMHMR In-Home and Family Support);

(2) Chapter 412, Subchapter J of this title (relating to Service Coordination); and

(3) subsection (d) of this section.

(d) To be eligible for general revenue services and supports, except as described in subsection (c)(1) and (2) of this section, an individual must:

(1) have been determined to have mental retardation as described in:

(A) §415.155 of this title (relating to Determination of Mental Retardation (DMR)); or

(B) §415.156 of this title (relating to Review and Endorsement of a DMR);

(2) have been determined to have a pervasive developmental disorder (PDD) as described in §415.157 of this title (relating to Pervasive Development Disorder (PDD));

(3) be a nursing facility resident eligible for specialized services and supports for mental retardation or a related condition pursuant to §1919(e)(7) of the Social Security Act; or

(4) be a child eligible for early childhood intervention (ECI) services provided in accordance with Chapter 621 of this title (relating to Early Childhood Intervention Services).

§412.505.Guidelines for Determining an Individual's Designated MRA.

An individual's designated MRA is the MRA for the local service area in which the individual resides or, if the individual has an LAR, the MRA for the local service area in which the LAR resides, with the following exceptions:

(1) If the LAR is the Texas Department of Protective and Regulatory Services (TDPRS), the designated MRA is the MRA for the local service area in which TDPRS obtained conservatorship for a minor individual or guardianship for an adult individual.

(2) If an individual residing in a state MR facility does not have an LAR, the designated MRA is the MRA that recommended the admission. If the state MR facility's IDT recommends an alternative living arrangement for the individual that is located in the local service area of an MRA other than the designated MRA, the other MRA will become the designated MRA.

§412.506.Responsibilities of an Individual's Designated MRA.

(a) An individual's designated MRA is responsible for:

(1) as described in §412.507 of this title (relating to MRA Explanation of Services and Supports) explaining the array of services and supports administered by the department and other state agencies;

(2) maintaining current provider-prepared information (brochures, videotapes, etc.) about providers in its local service area and making the information available, upon request, to:

(A) an individual and LAR or actively involved person;

(B) a community-based ICF/MR or a state MR facility when a move by the individual from the facility is being considered; or

(3) assisting the individual and LAR or actively involved person to identify services and supports preferences as described in §412.507(d) of this title (relating to MRA Explanation of Services and Supports);

(4) obtaining consent from the individual or LAR for the release of information by a school, physician, or another agency to the designated MRA;

(5) cooperating with the local community resource coordination group (CRCG) when the individual, including an adult in those counties in which the CRCG addresses both children and adults, has complex needs and requires multiagency services;

(6) if the requested services and supports will not be available within 30 calendar days of the date of the request, ensuring that the individual's name is placed on the department's waiting list for the requested services and supports;

(7) prior to the individual's enrollment in or admission to services and supports, explaining:

(A) orally and in writing, the services and supports described in the Explanation of Services and Supports document, in accordance with §412.508(a)-(c) of this title (relating to MRA Explanation of Services and Supports);

(B) the individual's rights as described in Chapter 405, Subchapter Y of this title (relating to Rights of Mentally Retarded Persons);

(i) Chapter 414, Subchapter A of this title (relating to Protected Health Information); and

(ii) Interpretive Guidance on Laws Pertaining to Privacy of Mental Health and Mental Retardation Records for the TDMHMR Service Delivery System; and

(D) the procedures established by the MRA in accordance with §401.464 of this title (relating to Notification and Appeals Process) through which concerns or dissatisfaction with the MRA's general revenue services and supports can be addressed, including the appeal of an MRA decision to deny, involuntarily reduce, or terminate the individual's services and supports;

(8) assisting the individual to access the preferred services and supports, to include:

(A) for the following programs, coordinating necessary assessments and information collection activities for use by the department in determining eligibility and conducting enrollment activities:

(i) Texas Home Living (TxHmL) Program;

(ii) Home and Community-based Services (HCS) Program; and

(iii) ICF/MR Program;

(B) for state MR facilities:

(i) determining whether the individual meets the admission criteria for state MR facilities as described in Chapter 412, Subchapter F of this title (relating to Continuity of Services -- State Mental Retardation Facilities);

(ii) convening an interdisciplinary team (IDT) meeting to make a recommendation regarding the individual's admission to a state MR facility as described in §412.514(c) of this title (relating to Responsibilities for Admission to a State MR Facility); and

(iii) referring the individual to a state MR facility as described in §412.514(d) of this title (relating to Responsibilities for Admission to a State MR Facility);

(C) for general revenue funded services and supports operated or contracted for by the MRA as described in §412.504(c) and (d) of this title (relating to Department's Array of Services and Supports), conducting eligibility determination and enrollment activities;

(D) referring the individual to a program operated by another state agency, as appropriate and desired; and

(E) if the individual is under 22 years of age and the individual is entering ICF/MR Program services or will be receiving supervised living or residential support in the HCS Program, conducting permanency planning as described in §412.514 of this title (relating to Permanency Planning for Individuals under 22 Years of Age);

(9) when an individual will be moving from a state MR facility or community-based ICF/MR, or discharged from a state MH facility conducting continuity of care activities in accordance with, as appropriate:

(A) §412.517 of this title (relating to Referral from a State Mental Retardation Facility);

(B) §412.519 of this title (relating to Notification by a Community ICF/MR); or

(10) responding as described in:

(A) §415.455 of this title (relating to Provision of Specialized Services and Alternate Placement Services) of the department's rules concerning Preadmission Screening and Resident Review (PASARR) and §412.507 of this title (relating to MRA Explanation of Services and Supports), when notified that an individual residing in a Medicaid certified nursing facility has a need for specialized services for mental retardation or a related condition;

(B) §412.507 of this title (relating to MRA Explanation of Services and Supports), when an individual is referred to the MRA by the state criminal justice system or a Community Supervision and Corrections Department in the MRA's local service area; and

(C) §412.515 of this title (relating to Responsibilities for Admission to a State MR Facility), when the department's interstate compact coordinator refers an individual for an interstate transfer and the MRA has verified that the individual's LAR or family (if there is no LAR) resides or intends to reside in the MRA's local service area; and

(11) participating in transition planning meetings scheduled by a public school district in the MRA's local service area:

(A) for a student receiving special education services who also is receiving services and supports; and

(B) as resources permit, for a student receiving special education services who is not currently receiving, but may be in need of, services and supports; and

(12) ensuring that the assignment in CARE of the designated MRA is correct and, if the assignment needs to be changed, notifying in writing the MRA that will become the new designated MRA before changing the CARE assignment.

(b) An MRA must comply with a request from an individual's designated MRA to conduct an activity necessary to fulfill any of the designated MRA's responsibilities described in subsection (a)(9)(A) of this section that requires face-to-face contact with an individual residing in that MRA's local service area.

§412.507.MRA Explanation of Services and Supports.

(a) The MRA must provide an explanation of services and supports to an individual and LAR or actively involved person using the department's Explanation of Services and Supports document, which must describe, at a minimum, the following:

(1) ICF/MR Program services -- both state MR facilities and community-based facilities;

(2) waiver program services under §1915(c) of the Social Security Act, including waiver programs operated by another state agency; and

(3) other services and supports provided through other funding sources.

(b) An MRA may modify the department's Explanation of Services and Supports document to add a description of services and supports unique to the MRA's local service area (e.g., the consolidated waiver program in Bexar County) but must not delete any information.

(c) If an LAR to whom the MRA provides an oral explanation of programs and services is not a family member of the individual, the MRA must provide an oral explanation to at least one family member of the individual, if possible, and give the family member a copy of the Explanation of Services and Supports document.

(d) An explanation provided by an MRA using the Explanation of Services and Supports document and, as appropriate, the Identification of Preferences form, as described in this subchapter, is in compliance with:

(1) Texas Government Code (TGC), §531.042, which requires that information about all long term care and support options be provided to an individual and certain other persons; and

(2) THSC, §533.038(d), which requires that an individual or LAR receive an explanation of programs and services for which the individual is determined to be eligible.

(e) If an MRA receives an inquiry from a person concerning services and supports, the MRA must:

(1) provide the person with a copy of the Explanation of Services and Supports document, if the inquiry is made in person;

(2) offer to mail the document or provide a website address where the information can be accessed, if the inquiry is by telephone;

(3) advise the interested person that a more detailed explanation of services and supports can be provided for the purpose of designating a preference for a program or service; and

(4) document the following:

(A) date of the inquiry;

(B) name of the individual (if provided);

(D) date that the Explanation of Services and Supports document is mailed (if applicable).

(f) When an individual and LAR or actively involved person is ready to state a preference for services and supports, the MRA must, using a translator, if needed:

(1) orally explain the services and supports described in the Explanation of Services and Supports document to the individual and LAR or actively involved person;

(2) interview the individual and LAR or actively involved person (face-to-face, if possible) to identify:

(A) the individual's interests, needs, and desired outcomes;

(B) the desired outcomes of the LAR or actively involved person for the individual; and

(3) inform the individual and LAR or actively involved person of all providers for the preferred services and supports in the MRA's local service area and make available copies of the provider information maintained by the MRA as described in §412.506(a)(2) of this title (relating to Responsibilities of an Individual's Designated MRA);

(4) document the preferred services and supports on the Identification of Preferences form;

(5) ensure that the Identification of Preferences form is completed as described in the form's instructions;

(6) give the individual and LAR or actively involved person a copy of:

(A) the Explanation of Services and Supports document; and

(B) the signed and dated Identification of Preferences form, complete with the MRA representative's contact information; and

(7) retain the original signed and dated Identification of Preferences form in the MRA's file for the individual.

(g) The MRA must inform the individual and LAR or actively involved person who stated a preference for services and supports, as described in subsection (d) of this section:

(1) that the name and contact information of a primary correspondent to whom the MRA will direct all inquiries must be provided to the MRA and must be updated as the information changes;

(2) that the services and supports preferences documented in the Identification of Preferences form may be changed by the primary correspondent at any time upon submission to the designated MRA of a written request; and

(3) of the contact information for the MRA and for the ombudsman.

(h) If the requested services and supports:

(1) are available, the MRA must assign appropriate staff to facilitate the individual's access to the requested services and supports; or

(2) will not be available within 30 calendar days following the signing of the Identification of Preferences form, as described in subsection (d)(5) of this section, the MRA must:

(A) register the individual's name on the waiting list as described in §412.508(a) of this title (relating to Department's Waiting List); and

(B) as appropriate and if desired by the individual, LAR, or actively involved person, make a referral to a program operated by another state agency.

§412.508.Department's Waiting List.

(a) Registering an individual's name on waiting list. An individual's designated MRA will register the individual's name on the waiting list chronologically by:

(1) the date of the signed Identification of Preferences form; or

(2) the date the MRA receives notice in accordance with TGC, §531.154, concerning permanency planning, that an individual under 22 years of age has been admitted to one of the following institutions:

(A) ICF/MR;

(B) nursing home;

(C) institution for persons with mental retardation licensed by the Texas Department of Protective and Regulatory Services (TDPRS);

(D) a foster group home licensed by TDPRS; or

(E) a residential arrangement other than a foster home that provides care to four or more individuals under 22 years of age who are unrelated to each other.

(b) Required annual contact by designated MRA.

(1) To ensure that the waiting list is up-to-date, the designated MRA must contact the primary correspondent annually by phone or face-to-face to:

(A) determine if there has been a significant change in the individual's preferences for services and supports;

(B) confirm whether the previously requested services and supports are still needed;

(D) inform the primary correspondent;

(i) of the importance of keeping the MRA informed of current contact information;

(ii) that the services and supports preferences in CARE may be changed by the primary correspondent at any time by submitting a completed Identification of Preferences form to the designated MRA; and

(iii) if the services and supports preferences in CARE include waiver program services, that the date in CARE of the request for waiver program services will remain unchanged if the primary correspondent adds other services and supports for the individual;

(E) inquire whether the individual is Medicaid eligible and, if application has not been made to determine Medicaid eligibility, encourage the primary correspondent to make application;

(F) offer to:

(i) explain the array of services and supports administered by the department and other state agencies using the department's Explanation of Services and Supports document; and

(ii) provide the primary correspondent with a copy of the Explanation of Services and Supports document; and

(G) for the individual whose name is first on the waiting list for waiver program services and supports in the MRA's local service area:

(i) briefly describe the eligibility determination and enrollment process described in §419.164 of this title (relating to Process for Enrollment of Applicants) for the HCS Program and in §419.567 of this title (relating to Process for Enrollment) for the TxHmL Program; and

(ii) inform the primary correspondent that when the MRA makes an offer of a waiver program vacancy, the Verification of Freedom of Choice form must be signed by a person with the legal authority to consent to enrollment in the waiver program.

(2) The MRA will provide a copy of the Explanation of Services and Supports document and the Identification of Preferences form to a primary correspondent who expresses a desire to change the services and supports preferences for the individual.

(3) If the MRA is unable to contact the primary correspondent using the contact information in CARE, the MRA must take additional steps as described in the MR Waiting List Maintenance Procedures Manual.

(4) The MRA must document all efforts to contact the primary correspondent.

(c) Change in individual's designated MRA assignment in CARE. If an individual's designated MRA assignment in CARE is changed as described in §412.506(a)(12) of this title (relating to Responsibilities of an Individual's Designated MRA), the individual's original date of request for waiver program services will remain unchanged.

(d) Removing an individual's name from the waiting list.

(1) To remove an individual's name from the waiting list, the designated MRA must change the individual's status in CARE using the appropriate codes as described in the MR Waiting List Maintenance Procedures Manual. The individual's name and demographic information remain in CARE regardless of waiting list status.

(2) Regardless of an individual's age, an individual's designated MRA must remove the individual's name from the waiting list when the MRA has documentation that:

(A) the individual is deceased; or

(B) for Medicaid-funded programs, the department has denied the individual's enrollment and the individual or LAR has had an opportunity to exercise the individual's right to appeal the decision as provided in:

(i) §419.169 of this title (relating to Fair Hearing) for the HCS Program;

(ii) §419.249 of this title (relating to Fair Hearing) for the ICF/MR Program; or

(iii) §419.571 of this title (relating to Fair Hearings) for the TxHmL Program.

(3) For an individual who is 22 years of age or older, the MRA must remove the individual's name from the waiting list when the MRA has documentation that:

(A) the primary correspondent has:

(i) not responded to the MRA's attempts to make contact during its annual update of the waiting list;

(ii) requested the removal of the individual's name from the waiting list; or

(iii) not responded to the MRA's notification of a program vacancy within 20 working days of the date of the MRA's notification, as described in §412.512 of this title (relating to Responsibilities for Waiver Programs); or

(B) for waiver program services, the individual or LAR has:

(i) chosen participation in the ICF/MR Program instead of waiver program services when offered this choice in accordance with §412.512(a) of this title (relating to Responsibilities for Waiver Programs);

(ii) declined the offer of a waiver program vacancy; or

(iii) not complied with the timeframes described in §412.512(e)(2) of this title (relating to Responsibilities for Waiver Programs) to:

(I) choose participation in waiver program services; or

(II) select a program provider.

(4) If an individual's name is removed from the waiting list for waiver program services in accordance with paragraph (2)(B) or (3)(B) of this subsection, the individual and LAR or actively involved person (or the MRA on their behalf) may request the department to review the circumstances under which the individual's name was removed. At its discretion, the department may reinstate the individual's name to the waiting list for waiver program services using the previously assigned date.

(5) If an individual's name is removed from the waiting list for general revenue funded services, the individual and LAR or actively involved person may request the MRA to review the circumstances under which the individual's name was removed. At its discretion, the MRA may reinstate the individual's name to the waiting list.

(e) Individual Under 22 Years of Age Residing in an Institution. Except as described in subsection (d)(2) of this section, an MRA must not remove from the waiting list for waiver program services the name of an individual if the individual's name was added to the waiting list for waiver program services when the designated MRA received notice in accordance with TGC, §531.154 (governing permanency planning) that the individual had been admitted to one of the institutions described in subsection (a)(2) of this section.

(1) The primary correspondent may request in writing that the MRA not make annual contact.

(2) If an MRA's offer of a waiver program vacancy is declined by the individual or LAR in writing, the MRA will change the individual's assigned date on the waiting list to the date the offer was declined.

(3) When the individual reaches 22 years of age, the MRA will:

(A) ask primary correspondent for written direction on whether or not to maintain the individual's name on the waiting list for waiver program services; and

(B) take appropriate action in accordance with the written direction from the primary correspondent.

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 December 29, 2003.

TRD-200308906

Rodolfo Arredondo

Chair, Texas MHMR Board

Texas Department of Mental Health and Mental Retardation

Earliest possible date of adoption: February 8, 2004

For further information, please call: (512) 206-5232

3. MRA ENROLLMENT AND ADMISSION RESPONSIBILITIES

25 TAC §§412.511 - 412.515

The proposed new sections affect THSC, Title 7, Subtitle D; THSC, Chapter 534, Subchapter B; and THSC, Chapter 592.

§412.511.Responsibilities for General Revenue Funded Services and Supports.

(a) An MRA must develop and implement written policies and procedures that describe how the MRA will assist an individual for whom it is the designated MRA to access general revenue funded services and supports that the MRA operates or for which it contracts. The written policies and procedures must:

(1) address the MRA's responsibilities as described in §412.506(a)(4)-(7) of this title (relating to Responsibilities of an Individual's Designated MRA); and

(2) require:

(A) the MRA to establish that an individual meets the eligibility criteria described in §412.504(c)-(d) of this title (relating to Department's Array of Services and Supports);

(B) the MRA's planning team to use a person-directed planning process that is consistent with the department's Person Directed Planning and Family Directed Planning Guidelines for Individuals with Mental Retardation to develop a person-directed plan for the individual; and

(C) if the MRA denies, involuntarily reduces, or terminates general revenue funded services or supports, the MRA to explain the procedure for requesting a review of the MRA's action as described in §412.521 of this title (relating to Review and Appeal).

(b) When the MRA makes an offer of general revenue funded services and supports, other than eligibility determination or service coordination, and the offer is accepted by the individual or LAR, the MRA must document the services and supports in the individual's written support plan including type, frequency, and duration, as appropriate.

§412.512.Responsibilities for Waiver Programs.

(a) Offer of waiver program vacancy.

(1) The department will notify an MRA when a waiver program vacancy is available. The notification will specify whether the vacancy is to be offered to:

(A) the individual whose name is first on the waiting list for waiver program services in the MRA's local service area; or

(B) an individual in the MRA's local service area who is a member of a target group identified by the department in the waiver program approved by CMS, even if the individual's name is not first on the waiting list for waiver program services in the MRA's local service area.

(2) Within three calendar days of receiving the notification from the department, the MRA must notify the primary correspondent in writing of the offer of a waiver program vacancy. The MRA's notification must include an explanation that:

(A) the MRA must:

(i) receive a response within 20 calendar days to the offer of a waiver program vacancy;

(ii) receive within seven calendar days after the primary correspondent responds to the offer as described in clause (i) of this subparagraph a Verification of Freedom of Choice form signed and dated by a person who has the legal authority to consent to waiver program services that designates a choice for the individual of:

(I) waiver program services; or

(II) the ICF/MR Program; and

(iii) receive within 30 calendar days after the date of the signed Verification of Freedom of Choice form a Documentation of Provider Choice form signed and dated by the person who signed the Verification of Freedom of Choice form that documents the choice of a waiver program provider for the individual;

(B) if the offer is for an HCS Program vacancy and the offer is declined, the MRA must remove the individual's name from the waiting list for waiver program services unless the individual is under 22 years of age as provided in §412.508(e) of this title (relating to Department's Waiting List).

(3) The MRA must use the Deadline Notification form to inform the individual or LAR of the deadline requirements described in paragraph (a)(2)(A) of this section.

(b) Explanation of services and supports. The MRA must provide an oral and written explanation to the individual and LAR of the array of services and supports administered by the department and other state agencies as described in §412.507(a)-(c) of this title (relating to MRA Explanation of Services and Supports).

(1) ensure that the individual's or LAR's choice between waiver program services and ICF/MR Program services is documented as described in subsection (a)(2)(A)(ii) of this section;

(2) retain in the individual's record:

(A) the Verification of Freedom of Choice form, signed and dated by the individual or LAR; and

(B) other correspondence related to the offer of a waiver program vacancy;

(3) if the program vacancy is for the TxHmL Program, notify the individual or LAR that the individual's name will remain on the waiting list for HCS Program services without change to the original date of the request for waiver services for the individual;

(4) assign a staff person who must:

(A) initiate, monitor, and support the processes necessary to obtain a financial eligibility determination for the individual if Medicaid financial eligibility has not been established;

(B) assist the individual or LAR to convene a planning team that will use a person-directed planning process that is consistent with the department's Person Directed Planning and Family Directed Planning Guidelines for Individuals with Mental Retardation in the development a person-directed plan (PDP) as described in:

(i) §419.164 of this title (relating to Process for Enrollment of Applicants) for the HCS Program; or

(ii) §419.567 of this title (relating to Process for Enrollment) for the TxHmL Program; and

(C) if the requested service is HCS Program supervised living or residential support and the individual is under 22 years of age:

(i) incorporate in the PDP the results of the permanency planning conducted as described in §412.514 of this title (relating to Permanency Planning for Individuals under 22 Years of Age); and

(ii) comply with the provisions of §412.514(i) of this title (relating to Permanency Planning for Individuals under 22 Years of Age);

(5) inform the individual and LAR of all program providers in the MRA's local service area for the selected waiver program and make available copies of the program provider information maintained by the MRA as described in §412.506(a)(2) of this title (relating to Responsibilities of an Individual's Designated MRA);

(6) compile and maintain information necessary to process the request for enrollment in the HCS Program as described in §419.164 of this title (relating to Process for Enrollment of Applicants) or in the TxHmL Program as described in §419.567 of this title (relating to Process for Enrollment); and

(7) when the waiver program provider selected by the individual or LAR has agreed to deliver those services delineated in the individual plan of care, developed as described in §419.164 of this title (relating to Process for Enrollment of Applicants) for the HCS Program or as described in §419.567 of this title (relating to Process for Enrollment) in the TxHmL Program, transmit the enrollment information to the department.

(d) Offer of program vacancy is declined.

(1) If the individual or LAR declines the offer of a vacancy in the:

(A) TxHmL Program, the MRA must notify the individual or LAR in writing that the individual's name will remain on the waiting list for HCS Program services without change to the chronological date of registration; or

(B) HCS Program, the MRA must notify the individual or LAR in writing that:

(i) if the individual is 22 years of age or older, the individual's name will be removed from the waiting list for waiver program services as provided in §412.508(d)(3)(B)(iii) of this title (relating to Department's Waiting List); or

(ii) if the individual is under 22 years of age and residing in one of the institutions listed in §412.508(a)(2) of this title (relating to Department's Waiting List), the individual's name will be retained on the waiting list but the assigned date for waiver program services will be changed to the date the offer was declined, as provided in §412.408(e)(2) of this title (relating to Department's Waiting List).

(2) An individual whose name is removed from the waiting list for waiver program services after an offer of a waiver program vacancy has been declined may request (or the LAR may request on the individual's behalf) that the individual's name be registered again on the waiting list in accordance with §412.508(a)(1) of this title (relating to Department's Waiting List).

(e) Failure to respond to an offer of a waiver program vacancy. If an individual or LAR does not respond to the offer of a program vacancy within 20 calendar days of the MRA's notification, the MRA must:

(1) withdraw the offer of the waiver program vacancy; and

(2) comply with subsection (d) of this section as if the offer of a program vacancy had been declined.

(f) Failure to document choice. The MRA must withdraw an offer of a waiver program vacancy made in accordance with subsection (a)(1)(A) or subsection (a)(1)(B) of this section if:

(1) within seven calendar days after the individual or LAR responds to the MRA about the offer of the program vacancy, the individual or LAR has not documented the choice of waiver program services over the ICF/MR Program on a signed and dated Verification of Freedom of Choice form as described in subsection (a) of this section; or

(2) within 30 calendar days after the individual or LAR signs the Verification of Freedom of Choice form, the individual or LAR has not documented the choice of a waiver program provider on a signed and dated Documentation of Provider Choice form.

§412.513.Responsibilities for the ICF/MR Program.

(a) If an individual requests ICF/MR Program services, the individual's designated MRA is responsible for requesting enrollment in the ICF/MR Program if the individual:

(1) is currently residing in a state MR facility or receiving inpatient mental health services in a state MH facility; and

(2) has not resided in a community-based ICF/MR during the previous 180 calendar days.

(b) The MRA must ensure that:

(1) the individual or LAR receives an oral and written explanation of the array of services and supports administered by the department and other state agencies as described in §412.507(a)-(c) of this title (relating to MRA Explanation of Services and Supports); and

(2) if the individual is under 22 years of age, the provisions of §412.514(i) of this title (relating to Permanency Planning for Individuals under 22 Years of Age) are met.

(c) To request an individual's enrollment in the ICF/MR Program, an MRA must complete the activities described in §419.244 of this title (relating to Applicant Enrollment)

§412.514.Permanency Planning for Individuals Under 22 Years of Age.

(a) In compliance with TGC, §531.153, permanency planning must be conducted for an individual under 22 years of age for whom the following services have been requested:

(1) supervised living or residential support in the HCS Program; or

(2) ICF/MR.

(b) The MRA will identify, through the permanency planning process, one of the following goals:

(1) for an individual who is under 18 years of age, living in the individual's family home where the natural supports and strengths of the individual's family are supplemented, as needed, by activities and supports provided or facilitated by the MRA or waiver program provider;

(2) for an individual under 18 years of age, living in a family-based alternative in which a family other than the individual's family:

(A) has received specialized training in the provision of support and in-home care for a child in the MR priority population;

(B) will provide a consistent and nurturing environment in a family home that supports a continued relationship with the individual's family to the extent possible; and

(C) if necessary, will provide an enduring, positive relationship with a specific adult who will be an advocate for the individual; or

(3) for the individual from 18 to 22 years of age, living in a setting chosen by the individual and family in which the individual's natural supports and strengths are supplemented by activities and supports provided or facilitated by the MRA or program provider, to achieve a consistent and nurturing environment, as defined by the individual and LAR.

(1) Prior to the meeting, MRA staff will review the individual's records.

(2) During this and subsequent meetings, the planning team will discuss:

(A) the problems or issues that led the individual or LAR to request out-of-home placement of the individual;

(B) the individual's daily support needs;

(i) the barriers to having the individual reside in the family home;

(ii) supports that would be necessary for the individual to remain in the family home; and

(iii) actions that must be taken to overcome the barriers and provide the necessary supports;

(D) for the individual 18 to 22 years of age, the barriers to moving to a consistent and nurturing environment as defined by the individual and LAR;

(E) the importance for an individual under 22 years of age to live in a long-term nurturing relationship with a family;

(F) options to living in an institutional setting;

(G) the individual's and LAR's need for information and preferences regarding those options;

(H) how, after a out-of-home placement, to facilitate regular contact between the individual and the individual's family, and, if desired by the individual and family, between the individual and life-long advocates and friends in the community to continue supportive and nurturing relationships;

(I) natural supports and family strengths that will assist in accomplishing the identified permanency planning goal;

(J) activities and supports that can be provided by the family, MRA, or program provider to achieve the permanency planning goal;

(K) for the individual who will be receiving supervised living or residential support through the HCS Program or admitted to an ICF/MR, assistance needed by the individual's family:

(i) in maintaining a nurturing relationship with the individual; and

(ii) preparing the family for the individual's eventual return to the family home or move to a family-based alternative as described in subsection (b)(2) of this section; and

(L) action steps, both immediate and long term, for achieving the permanency plan goal.

(d) The MRA must inform the individual under 22 years of age and LAR that they may request a volunteer advocate to assist in permanency planning. The individual or LAR may:

(1) select a person who is not employed by or under contract with the designated MRA; or

(2) request the MRA to designate a volunteer advocate.

(e) If the individual or LAR requests that the MRA designate a volunteer advocate or the individual's LAR cannot be located, the MRA must attempt to designate a volunteer advocate to assist in permanency planning who is, in order of preference:

(1) an adult relative who is actively involved with the individual;

(2) a person who is:

(A) part of the individual's natural support network; and

(B) not employed by or under contract with the designated MRA or the program provider; or

(3) a person or a child advocacy organization representative who is:

(A) knowledgeable about community services and supports;

(B) knowledgeable about the permanency planning philosophy and processes; and

(f) If unable to locate a volunteer advocate locally, the MRA must request assistance from a statewide advocacy organization in identifying an available volunteer advocate who meets the requirements described in subsection (f)(3) of this section. If the statewide advocacy organization is unable to assist in identifying a volunteer advocate, the MRA must document all efforts to designate a volunteer advocate in accordance with subsection (f) of this section.

(g) The MRA will document the results of the permanency planning process using, as appropriate, the:

(1) Permanency Planning Instrument for Children Under 18 Years of Age; or

(2) Permanency Planning Instrument for Individuals 18-22 Years of Age.

(h) The MRA must:

(1) complete the permanency planning review screen in CARE prior to the individual's enrollment in supervised living or residential support through the HCS Program or the ICF/MR Program; and

(2) place a copy of the permanency planning approval screen from CARE in the individual's file to document that the department's commissioner or designee has approved the individual's:

(A) enrollment in supervised living or residential support in the HCS Program; or

(B) admission to an ICF/MR.

(i) The MRA will provide a copy of the initial permanency planning meeting documentation to the program provider, as well as to the individual and LAR or actively involved person.

§412.515.Responsibilities for Admission to a State MR Facility.

(a) Statutory requirement for IDT recommendation for admission to a state MR facility.

(1) As required by THSC, §593.013, an individual may not be admitted to a state MR facility (either through commitment or a regular voluntary admission) unless an IDT recommends the admission without regard to whether the services and supports will be funded through:

(A) personal funds or third-party insurance other than Medicaid;

(B) the ICF/MR Program; or

(2) An IDT recommendation is not required for an individual's emergency admission to a state MR facility or admission to a state MR facility for respite care.

(b) Department delegation of IDT responsibility to MRA. The department has delegated to an individual's designated MRA the responsibility to convene an IDT that will make a recommendation regarding the individual's admission to a state MR facility.

(1) An IDT convened by an individual's designated MRA to consider a request for the admission of the individual to a state MR facility must:

(A) interview the individual and LAR or actively involved person;

(B) review the individual's:

(i) social and medical history;

(ii) medical assessment, which must include an audiological, neurological, and vision screening;

(iii) psychological assessment and determination of adaptive behavior legal (i.e., the Determination of Mental Retardation);

(iv) the person's ICAP assessment booklet; and

(v) social assessment; and

(2) The individual's designated MRA must encourage the individual and LAR or actively involved person to participate in the IDT meetings.

(3) The IDT may:

(A) obtain additional assessments, including educational and vocational assessments, if the IDT deems such assessments necessary to accurately determine the individual's needs; and

(B) use a previous assessment, social history, or other relevant record from a school district, public or private agency, or appropriate professional if the IDT determines that the assessment, social history, or other relevant record is valid.

(4) The IDT will prepare a written report of its findings and recommendations that:

(A) recommends services to address the individual's needs that consider the interests, choices, and goals of the individual and LAR or actively involved person;

(B) for the individual under 22 years of age, addresses the results of permanency planning conducted as described in §412.514 of this title (relating to Permanency Planning for Individuals Under 22 Years of Age); and

(i) the individual, because of mental retardation:

(I) represents a substantial risk of physical impairment or injury to self or others; or

(II) is unable to provide for and is not providing for the individual's most basic personal physical needs;

(ii) the individual cannot be adequately and appropriately habilitated in an available, less restrictive setting based on the Instrument for Determination of Less Restrictive Setting; and

(iii) the state MR facility provides habilitative services, care, training, and treatment appropriate to the individual's need.

(5) The IDT's determination as described in paragraph (4)(C)(i) of this subsection must be made in accordance with, as appropriate:

(A) §412.255(c) of this title (relating to Criteria for Commitment and Regular Voluntary Admission of an Adult to a State MR Facility Under the PMRA);

(B) §412.256(h) of this title (relating to Criteria for Commitment of an Adult under the Texas Code of Criminal Procedure);

(D) §412.259(h) of this title (relating to Criteria for Commitment of a Minor to a State MR Facility Under the Texas Family Code).

(6) The IDT's written report must be signed by each IDT member.

(A) The MRA will send a copy of the signed report within 10 working days to the individual and LAR or actively involved person.

(B) If the individual is being considered for commitment to a state MR facility, the MRA will submit the IDT report promptly to the court, as ordered, with copies to the individual and LAR or actively involved person.

(d) MRA's actions if IDT recommends admission. If the IDT recommends that the individual be admitted to a state MR facility (either through commitment or a regular voluntary admission), the MRA must:

(1) notify in writing the individual and LAR or actively involved person (or the department's interstate compact coordinator, if the requested admission was for an individual residing in a state-operated facility in another state) of the recommendation with an explanation of the application process;

(2) provide the individual and LAR or actively involved person with an oral and written explanation of the array of services and supports administered by the department and other state agencies as described in §412.507(a)-(c) of this title (relating to MRA Explanation of Services and Supports);

(3) if the requested admission was for an individual residing in a state-operated facility in another state, ensure that the department's interstate compact coordinator has a current copy of Explanation of Services and Supports document and the MRA representative's contact information to provide to the individual and LAR or actively involved person;

(4) contact the state MR facility serving the area in which the individual lives or, if an interstate transfer had been requested, the area in which the individual's LAR or family resides or intends to reside;

(5) compile and submit all information required to complete an application packet, as described in:

(A) §412.266 of this title (relating to Process for Admission of an Adult or a Minor Who Has Been Committed to a State MR Facility Under the PMRA); or

(B) §412.267 of this title (relating to Process for the Regular Voluntary Admission of an Adult to a State MR Facility under the PMRA); and

(6) when notified by the admission coordinator that an appropriate vacancy in a state MR facility is available, request the individual's enrollment in the ICF/MR Program as described in §412.513 of this title (relating to Responsibilities for the ICF/MR Program) if appropriate.

(e) MRA's actions if IDT does not recommend admission. If the MRA's IDT does not recommend that the individual be admitted to a state MR facility (either through commitment or a regular voluntary admission), the MRA will:

(1) notify the individual and LAR or actively involved person in writing of the recommendation and explain the procedure for requesting a review of the IDT's recommendation as described in §412.521 of this title (relating to Review and Appeal); or

(2) if an interstate transfer had been requested, notify the department's interstate compact coordinator in writing of the recommendation and the procedure for requesting a review of the IDT's recommendation as described in §412.521 of this title (relating to Review and Appeal).

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 December 29, 2003.

TRD-200308907

Rodolfo Arredondo

Chair, Texas MHMR Board

Texas Department of Mental Health and Mental Retardation

Earliest possible date of adoption: February 8, 2004

For further information, please call: (512) 206-5232

4. TRANSITION WITHIN DEPARTMENT SERVICES AND SUPPORTS

25 TAC §§412.517 - 412.519

The proposed new sections affect THSC, Title 7, Subtitle D; THSC, Chapter 534, Subchapter B; and THSC, Chapter 592.

§412.517.Referral from a State MR Facility.

(a) An individual's designated MRA must participate in a state MR facility's IDT meeting when notified that, as a result of the living options process described in §412.274 of this title (relating to Consideration of Living Options for Individuals Residing in State MR Facilities), alternative living arrangements will be discussed with the individual and LAR or actively involved person.

(1) The MRA and LAR or actively involved person may choose to participate in the IDT meeting via teleconference.

(2) During the IDT meeting, the MRA must provide the individual and LAR or actively involved person with an oral and written explanation of the array of services and supports administered by the department and other state agencies as described in §412.507(a)-(c) of this title (relating to MRA Explanation of Services and Supports).

(b) During this or a subsequent IDT meeting, the IDT will document the desired alternative living arrangements, including preferred geographic locations, as described in:

(1) §412.275 of this title (relating to Accessing Alternative Living Arrangements for an Individual Residing in a State MR Facility Who Has the Ability to Provide Legally Adequate Consent or Has a Legally Authorized Representative (LAR)); or

(2) §412.276 of this title (relating to Accessing Alternative Living Arrangements for an Individual Residing in a State MR Facility Who Does Not Have the Ability to Give Legally Adequate Consent and Who Does Not Have a Legally Authorized Representative (LAR).

(1) within seven calendar days of being notified by IDT of the desired alternative living arrangements, including preferred geographic locations, contact other MRAs in whose local service areas the preferred geographic locations are located to obtain information about program providers;

(2) coordinate communication between the individual and LAR or actively involved person, the state MR facility, the other involved MRAs, and providers; and

(3) invite a representative from each involved MRA to a meeting of the state MR facility's IDT to discuss the preferences and desires of the individual and LAR or actively involved person regarding alternative living arrangements, as well as the services and support needs identified by the IDT.

(d) Upon receipt of a community living profile completed by the state MR facility as described in §412.278(c)(1) of this title (relating to Community Living/Discharge Plan for Alternative Living Arrangements), the designated MRA must provide copies of the profile to the other involved MRAs.

(1) The other involved MRAs must provide the designated MRA with a list of the program providers in their local service areas and current information prepared by the program providers.

(2) The designated MRA must provide the state MR facility with a list of the providers in the preferred geographic locations and current information prepared by the providers. The state MR facility must ensure that the individual and LAR or actively involved person receive a copy of the list and the current information prepared by the providers before the IDT meeting at which the providers will be selected to receive the community living profile.

(e) Upon receipt of a list of providers selected by the individual and LAR (or the state MR facility if the individual is unable to provide legally adequate consent and does not have an LAR) the designated MRA will:

(1) distribute the community living profile to the selected providers in its local service area; and

(2) coordinate with the other involved MRAs to ensure that the community living profile is distributed by those MRAs to the selected providers in their local service areas.

(f) The designated MRA must coordinate with the state MR facility and other involved MRAs, as appropriate, by providing assistance in making arrangements for visits by the individual and LAR or actively involved person to proposed program providers.

(g) After a program provider has been selected by the individual and LAR (or the state MR facility for the individual who is unable to provide legally adequate consent and does not have an LAR), the designated MRA must, within 14 calendar days:

(1) review material forwarded by the state MR facility, as described in §412.277(a) of this title (relating to Arrangements for the Move to an Alternative Living Arrangement of an Individual Residing in a State MR Facility) and visit the proposed setting, as needed, to develop findings as to whether the setting will:

(A) ensure the individual's health, safety, and welfare; and

(B) effectively address the outcomes important to the individual or LAR (or the state MR facility if the individual is unable to provide legally adequate consent and does not have an LAR) and the services and supports necessary to assist the individual in achieving those outcomes.

(2) notify the state MR facility in writing whether the proposed setting meets the criteria in paragraph (1) of this subsection.

(h) If an MRA other than the individual's designated MRA visits a proposed setting in accordance with subsection (g) of this section the MRA must notify the designated MRA of its findings within a mutually agreeable time that will enable the designated MRA to submit the written report as required by subsection (g) of this section.

(i) The MRA must include in the notice of its findings:

(1) the criteria that the provider setting did or did not meet; and

(2) the reasons why the MRA determined the criteria was or was not met.

(j) If an MRA is notified by a state MR facility that an individual will be moving to an alternative living arrangement within the MRA's local service area, the MRA must, in accordance with the Community Living/Discharge Plan developed as described in §412.278 of this title (relating to Community-Living/Discharge Plan for Alternative Living Arrangements):

(1) designate appropriate staff to complete the monitoring activities agreed to by the designated MRA, including making a recommendation for discharge to the state MR facility; and

(2) ensure that transportation for the individual to the alternative living arrangement from the state MR facility is provided.

§412.518.Notification by a State MH Facility or MHA.

(a) An MRA will determine the designated MRA in accordance with §412.505 of this title (relating to Guidelines for Determining an Individual's Designated MRA) when notified by a state MH facility or an MHA that an individual admitted to the state MH facility is:

(1) identified in CARE has having mental retardation, a PDD, or a related condition; or

(2) believed to have mental retardation, a PDD, or a related condition.

(b) The designated MRA will ensure that:

(1) a determination of mental retardation is conducted as described in:

(A) §415.155 of this title (relating to Determination of Mental Retardation (DMR)); or

(B) §415.156 of this title (relating to Review and Endorsement of a DMR); and

(2) as necessary, the individual is evaluated for:

(A) a pervasive developmental disorder (PDD) as described in §415.157 of this title (relating to Pervasive Development Disorder (PDD)); or

(B) a related condition as described in §415.158 of this title (relating to Related Condition (RC)).

(1) provide the individual and LAR or actively involved person with an oral and written explanation of the array of services and supports administered by the department and other state agencies as described in §412.507(a)-(c) of this title (relating to MRA Explanation of Services and Supports);

(2) document the preferred services and supports of the individual and LAR or actively involved person on the Identification of Preferences form;

(3) participate in discharge planning as described in §412.201 of this title (relating to Discharge Planning); and

(4) conduct the activities described in §412.506 of this title (relating to Responsibilities of an Individual's Designated MRA), as appropriate.

§412.519.Notification by a Community ICF/MR Facility.

(a) If an MRA receives an IDT summary from a community-based ICF/MR in the MRA's local service area that indicates an individual residing in the ICF/MR or the individual's LAR or actively involved person, as appropriate has expressed interest in an alternative living arrangement, the MRA must, within seven calendar days after receiving the IDT summary:

(1) determine if it is the designated MRA for that individual; and

(2) if it is not:

(A) determine which MRA is the designated MRA; and

(B) notify that MRA in writing with a copy of the IDT summary.

(b) If the MRA determines that it is the designated MRA for that individual, the MRA must, within 14 calendar days of receiving the IDT summary:

(1) contact the individual and LAR or actively involved person to discuss alternative living arrangements; and

(2) determine if the individual or LAR is interested in seeking an alternative living arrangement in another MRA's local service area and, if so, notify the MRA for that local service area.

(c) If the MRA determines it is not the designated MRA for that individual and notifies the designated MRA as described in subsection (a)(2) of this section, the designated MRA must, within 14 calendar days of receiving the IDT summary from the first MRA:

(1) contact the individual and LAR or actively involved person to discuss alternative living arrangements; and

(2) determine if the individual or LAR is interested in seeking an alternative living arrangement in another MRA's local service area and, if so, notify the MRA for that local service area.

(d) The MRA for the local service area in which the individual or LAR is interested in seeking an alternative living arrangement must:

(1) provide the individual and LAR or actively involved person with an explanation of the array of services and supports administered by the department and other state agencies as described in §412.507(a)-(c) of this title (relating to MRA Explanation of Services and Supports);

(2) enter in CARE the individual's name and the specific type of services and supports requested, if those services and supports will not be available within 30 days of the date of request; and

(3) assist the individual or LAR in accessing the services and supports requested when they become available.

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 December 29, 2003.

TRD-200308908

Rodolfo Arredondo

Chair, Texas MHMR Board

Texas Department of Mental Health and Mental Retardation

Earliest possible date of adoption: February 8, 2004

For further information, please call: (512) 206-5232

5. OTHER RESPONSIBILITIES

25 TAC §412.521

The new section is proposed under Texas Health and Safety Code (THSC), §532.015(a), which provides the Texas Mental Health and Mental Retardation Board (board) with broad rulemaking authority; §534.052, which requires the board to adopt rules necessary and appropriate to ensure the adequate provision of community-based services and supports through an MRA; §591.004, which requires the board to adopt rules that ensure the implementation of the Persons with Mental Retardation Act (THSC, Title 7, Subtitle D); and §592.002, which requires the board to adopt rules that ensure the implementation of the rights enumerated in Chapter 592; §593.002, which requires the board to adopt rules that prescribe reasonable efforts to obtain consent and require documentation of those efforts.

The proposed new sections affect THSC, Title 7, Subtitle D; THSC, Chapter 534, Subchapter B; and THSC, Chapter 592.

§412.521.Review and Appeal.

(a) If an MRA denies, involuntarily reduces, or terminates general revenue funded services and supports, the MRA must the notify the individual or LAR in writing of the action taken and provide an explanation of the procedure for the individual or LAR to request a review by the MRA in accordance with §401.464 of this title (relating to Notification and Appeals Process).

(b) If a review conducted by the MRA as described in subsection (a) of this section results in the MRA's decision being upheld, the MRA will inform the individual or LAR in writing that a request for a review of the MRA's decision by the department's ombudsman may be made in writing to Consumer Services and Rights Protection, Ombudsman, Texas Department of Mental Health and Mental Retardation, P.O. Box 12668, Austin, Texas, 78711-2668, or by calling 1-800-252-8154.

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 December 29, 2003.

TRD-200308909

Rodolfo Arredondo

Chair, Texas MHMR Board

Texas Department of Mental Health and Mental Retardation

Earliest possible date of adoption: February 8, 2004

For further information, please call: (512) 206-5232

6. DOCUMENTS, REFERENCES, AND DISTRIBUTION

25 TAC §§412.523 - 412.525

The proposed new sections affect THSC, Title 7, Subtitle D; THSC, Chapter 534, Subchapter B; and THSC, Chapter 592.

§412.523.Documents and Forms.

(a) Copies of the following documents and forms referenced in this subchapter may be obtained though the department's website at www.mhmr.state.tx.us or by contacting:

(1) the Office of Long Term Services and Supports, Texas Department of Mental Health and Mental Retardation, P.O. Box 12668, Austin, Texas 78711-2668 for:

(A) Explanation of Services and Supports document;

(B) Identification of Preferences form;

(D) MR Waiting List Maintenance Procedures Manual;

(E) Permanency Planning Instrument for Children Under 18 Years of Age; and

(F) Permanency Planning Instrument for Individuals 18 Through 21 Years of Age;

(2) Office of Medicaid Administration, Texas Department of Mental Health and Mental Retardation, P.O. Box 12668, Austin, Texas 78711-2668 for the:

(A) Deadline Notification form;

(B) Verification of Freedom of Choice form; and

(3) Legal Services, Texas Department of Mental Health and Mental Retardation, P.O. Box 12668, Austin, Texas 78711-2668 for Interpretive Guidance on Laws Pertaining to Privacy of Mental Health and Mental Retardation Records for the TDMHMR Service Delivery System.

(b) The documents described in subsections (a)(1)(A)-(B) and (2) of this section are available from the department in English and in Spanish.

(1) The department will provide copies of these documents to an MRA in any language used by a significant percentage of the population in the MRA's local service area.

(2) The department will make each document available in accessible formats (e.g., Braille or tape).

§412.524.References.

Reference is made in this subchapter to the following statutes, federal regulations, rules of the department and of other state agencies, and other relevant documents:

(1) Federal statute:

(A) §1915(c) of the Social Security Act; and

(B) §1919(e)(7) of the Social Security Act;

(2) Federal rules.

(A) 42 CFR 42 §435.1009; and

(B) 45 CFR §164.501;

(3) Texas statute:

(A) Texas Family Code, Chapter 31;

(B) Texas Health and Safety Code (THSC), §§531.002, 533.039, 591.003, 591.006, 593.002, and 593.013; and

(4) Rules of the department:

(A) §401.464 of this title (relating to Notification and Appeals Process);

(B) Chapter 405, Subchapter Y of this title (relating to Rights of Mentally Retarded Persons);

(D) Chapter 411, Subchapter I of this title (relating to TDMHMR In-Home and Family Support);

(E) Chapter 412, Subchapter F of this title (relating to Continuity of Services -- State Mental Retardation Facilities):

(i) §412.255(c) of this title (relating to Criteria for Commitment and Regular Voluntary Admission of an Adult to a State MR Facility Under the PMRA);

(ii) §412.256(h) of this title (relating to Criteria for Commitment of an Adult under the Texas Code of Criminal Procedure);

(iii) §412.257(b) of this title (relating to Criteria for Commitment of a Minor to a State MR Facility Under the PMRA);

(iv) §412.259(h) of this title (relating to Criteria for Commitment of a Minor to a State MR Facility Under the Texas Family Code);

(v) §412.266 of this title (relating to Process for Admission of an Adult or a Minor Who Has Been Committed to a State MR Facility Under the PMRA);

(vi) §412.267 of this title (relating to Process for the Regular Voluntary Admission of an Adult to a State MR Facility under the PMRA;

(vii) §412.277(a) of this title (relating to Arrangements for the Move to an Alternative Living Arrangement of an Individual Residing in a State MR Facility); and

(viii) §412.278(c)(1) of this title (relating to Community Living/Discharge Plan for Alternative Living Arrangements);

(F) §412.453(22) of this title (relating to Definitions) in department rules at Chapter 412, Subchapter J of this title (relating to Service Coordination);

(G) Chapter 414, Subchapter A of this title (relating to Protected Health Information);

(H) Chapter 415, Subchapter D of this title (relating to Diagnostic Eligibility for Services and Supports -- Mental Retardation Priority Population and Related Conditions):

(i) §415.155 of this title (relating to Determination of Mental Retardation (DMR));

(ii) §415.156 of this title (relating to Review and Endorsement of a DMR);

(iii) §415.157 of this title (relating to Pervasive Development Disorder (PDD)); and

(iv) §415.158 of this title (relating to Related Condition (RC));

(I) §415.455 of this title (relating to Provision of Specialized Services and Alternate Placement Services) of the department's rules concerning Preadmission Screening and Resident Review (PASARR);

(J) Chapter 419, Subchapter D of this title (relating to Home and Community-based Services (HCS) Program);

(i) §419.164 of this title (relating to Process for Enrollment of Applicants) for the HCS Program; and

(ii) §419.169 of this title (relating to Fair Hearing) for the HCS Program;

(K) §419.244 of this title (relating to Applicant Enrollment) of Chapter 419, Subchapter E of this title (relating to ICF/MR Programs); and

(L) Chapter 419, Subchapter N of this title (relating to Texas Home Living (TxHmL) Program):

(i) §419.567 of this title (relating to Process for Enrollment) for the TxHmL Program; and

(ii) §419.571 of this title (relating to Fair Hearings) for the TxHmL Program;

(5) Rules of other state agencies. Chapter 621 of this title (relating to Early Childhood Intervention Services); and

(6) Documents of other state agencies. Memorandum of Understanding on Coordinated Services to Persons Needing Services from More than One Agency, available on the website of the Texas Health and Human Services Commission at www.hhsc.state.tx.us/crcg/crcg.htm.

§412.525.Distribution.

(a) This subchapter is distributed to:

(1) members of the Texas Mental Health and Mental Retardation Board;

(2) executive, management, and program staff in the department's Central Office;

(3) superintendents/directors of state MR facilities;

(4) superintendents of state MH facilities;

(5) chairs of boards of trustees of community centers;

(6) executive directors of mental retardation authorities;

(7) waiver program and ICF/MR Program providers; and

(8) interested advocates and advocacy organizations.

(b) The superintendent/director of each state MR facility and the executive director of each MRA is responsible for distributing copies of this subchapter to appropriate staff.

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 December 29, 2003.

TRD-200308910

Rodolfo Arredondo

Chair, Texas MHMR Board

Texas Department of Mental Health and Mental Retardation

Earliest possible date of adoption: February 8, 2004

For further information, please call: (512) 206-5232