Subchapter B. MEDICAID BENEFITS FOR ALIENS NOT LEGALLY RESIDING IN THE UNITED STATES

The Texas Department of Human Services (DHS) adopts the repeal of §§49.1, 49.3, 49.5, 49.7, 49.9-49.11, 49.13-49.15, 49.17, 49.19, 49.21, 49.23, 49.25, and 49.27; and adopts new §§49.1, 49.11-49.20, 49.31-49.33, 49.41-49.43, 49.51-49.54, and 49.61-49.63 in its Contracting for Community Care Services chapter.

New §§49.1, 49.14, 49.17, 49.18, 49.31, and 49.41 are adopted with changes to the proposed text published in the August 15, 2003, issue of the Texas Register (28 TexReg 6515). The repeals of §§49.1, 49.3, 49.5, 49.7, 49.9-49.11, 49.13-49.15, 49.17, 49.19, 49.21, 49.23, 49.25, and 49.27; and new §49.11-49.13, 49.15, 49.16, 49.19, 49.20, 49.32, 49.33, 49.42, 49.43, 49.51-49.54, and 49.61-49.63 are adopted without changes to the proposed text.

Justification for the repeals and new sections is to reorganize and rewrite the rules in plain English as part of the agency's initiative to make its rules easier to navigate and understand. DHS wrote the proposed rules to complement licensure rules for DHS-licensed entities and to place rules specific to Community Care contractors as much as possible within the same chapter. Therefore, rules outlining contract requirements for contractors in the Consolidated Waiver Program, Community Based Alternatives, and Primary Home Care were placed in new Chapter 49 and will be deleted from Chapters 47, 48, and 50 of this title (relating to Primary Home Care, Community Care for Aged and Disabled, and §1915(c) Consolidated Waiver Program) in subsequent issues of the Texas Register . Rules regarding access to a contractor's records that appear in Chapter 69 of this title (relating to Contracted Services) were restated in new §49.33 for the convenience of the public and provider agencies.

DHS received written comments from Advocacy, Incorporated. A summary of the comments and DHS's responses follow.

Comment: In regard to §49.1, Definitions, a comment was received that the definition of "client" in this section is the person eligible for services. In later sections, the client is expected to sign off on certain documents. If the client is a minor child or an individual with a legally authorized guardian, then the parent or guardian would need to sign the documents. It was suggested that language be added to ensure appropriate action and documentation regarding client and/or guardian/parent. Rules should require that when a complaint is resolved, the client or the client's guardian's or parent's initials must be obtained or, if the client's guardian or parent refuses to sign, a witness's signature must be obtained. This requirement should also be added to §49.18, Client Rights and Responsibilities.

Response: DHS agrees with this comment and added a new definition for "representative" at §49.1(32) and renumbered the remaining definitions in the section. DHS also revised §§49.17(a) and (f)(1) and (2); 49.18; 49.31(b)(5), (6), and (10); and 49.41(a) to replace "client" with "client/client's representative."

Comment: In regard to §49.14, Provisional Contracts, DHS was asked if it had reviewed this section to make sure there were no unintended barriers to getting the support family services providers added to Community Living Assistance and Support Services (CLASS) under the umbrella of DHS contracting rules. As an example, would the requirement that home and community support services agencies, before applying for a provisional contract, have their license for at least one year or have provided attendant or home health services place a barrier on getting support family services providers added to CLASS?

Response: Section 49.14 only applies to provisional contracts, which relate to home and community support services agencies that contract to provide services for the Primary Home Care (PHC) Program, Community Based Alternatives (CBA) Program, and the Consolidated Waiver Program (CWP). This section is not applicable to CLASS, because CLASS does not require a provisional contract. However, DHS revised the section to make it clear that the requirement applies to home and community support services agencies contracting to provide services for PHC, CBA, and CWP.

Comment: In §49.14, does CBA/HCSS refer to all waiver programs or just CBA and CWP?

Response: CBA/HCSS does not refer to all waiver programs.

Comment: Does DHS need to add that a provider must have provided services as a licensed Child Placement Agency (CPA) to §49.14(c)(4)?

Response: No. Section 49.14(c)(4) only applies to provisional contracts, which relate to home and community support services agencies that contract to provide services in the PHC, CBA, and CWP programs and do not require additional licenses other than what is required in this subsection. DHS did not make the requested change.

Comment: In regard to §49.18, Client Rights and Responsibilities, a request was made to add a requirement that the provider agency provide each client with information on the Consumer Directed Services (CDS) option no later than the time services begin.

Response: Not all providers have a CDS contract with DHS, nor is CDS available in all programs. It is the responsibility of DHS staff/contracted case managers to educate and inform the client/client's representative of any services available through DHS. DHS made no changes as a result of this comment.

Comment: In regard to §49.31, Record Requirements, in subsection (b)(9) there is a requirement that provider agencies keep "records of client conduct." It is very unclear what type program requirement this refers to or whether there is to be some sort of new requirement to monitor and record "client conduct." This requirement, left to interpretation, could result in subjective use of inappropriate collection of client's private/personal conduct, which may be way beyond any specific program requirement. In this case, Advocacy, Inc., would have major objections to such record keeping. With respect to an individual's right to self determination, privacy and dignity of risk, this requirement needs to be clarified.

Response: DHS agrees with this comment and has revised §49.31(b)(9) to state: "records of client conduct that may affect service delivery as outlined in program-specific rules."

Comment: In regard to §49.41(c)(12), Billings and Claims Payment, it was suggested that DHS add language to expand the exception that allows a provider agency to receive payment for services provided to a client in a facility when the payment is for an assessment. The exception should also include transition/relocation activities as allowed by DHS program rules. This change anticipates the ability of certain §1915(c) Medicaid waiver community care programs to pay for transition and relocation activities with waiver dollars, pending waiver amendment submissions by DHS and subsequent Centers for Medicare and Medicaid Services (CMS) approval.

Response: DHS agrees with this statement and has revised §49.41(c)(12) to include the expanded exception.

Comment: A general comment was made suggesting that DHS contracting staff meet with DHS program staff regarding the addition of support family services to the CLASS program service array. This will require some new contracting mechanisms, and the rules need to support this activity and not become a barrier or cause delays. The comments assume that any final rules will include the necessary provisions to allow for support family services in the CLASS program and that those barriers will be addressed before rules are adopted.

Response: DHS has considered this. The new rule, as proposed in §49.14, would not be a barrier or cause a delay in setting up support family services. DHS made no changes as a result of this comment.