TITLE 25.HEALTH SERVICES

Part 2. TEXAS DEPARTMENT OF MENTAL HEALTH AND MENTAL RETARDATION

Chapter 405. CLIENT (PATIENT) CARE

Subchapter M. MAIL OPENING PROCEDURES

25 TAC §§405.301 - 405.304, 405.309, 405.312 - 405.314

The Texas Department of Mental Health and Mental Retardation (TDMHMR) adopts the repeals of §§405.301 - 405.304, 405.309, and 405.312 - 405.314 of Chapter 405, Subchapter M, concerning mail opening procedures, without changes as published in the December 26, 2003, issue of the Texas Register (28 TexReg 11493).

The subchapter is repealed because its provisions are contained in other TDMHMR rules, specifically Chapter 404, Subchapter E, governing Rights of Persons Receiving Mental Health Services, and Chapter 405, Subchapter Y, governing Rights of Mentally Retarded Persons. Additionally, the right of an individual residing in a state mental retardation facility to send and receive unopened mail is addressed in the Conditions of Participation for Intermediate Care Facilities for the Persons with Mental Retardation in the Code of Federal Regulations (CFR), Title 42, §483.420.

No comments on the proposed repeals were received.

These sections are adopted for repeal under the Texas Health and Safety Code, §532.015(a), which provides the Texas Mental Health and Mental Retardation Board with broad rulemaking authority.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on February 19, 2004.

TRD-200401173

Rodolfo Arredondo

Chairman, Texas MHMR Board

Texas Department of Mental Health and Mental Retardation

Effective date: March 10, 2004

Proposal publication date: December 26, 2003

For further information, please call: (512) 206-4516

Chapter 411. STATE AUTHORITY RESPONSIBILITIES

Subchapter A. ADVISORY COMMITTEES

25 TAC §§411.5, 411.6, 411.9, 411.10, 411.13

The Texas Department of Mental Health and Mental Retardation (TDMHMR) adopts the repeals of §§411.5, 411.6, 411.9, 411.10, and 411.13 of Chapter 411, Subchapter A, concerning advisory committees, without changes as published in the December 26, 2003, issue of the Texas Register (28 TexReg 11493).

Section 2.151(b), HB 2292, 78th Legislature, Regular Session, abolishes each advisory committee of a health and human services agency that was created before September 1, 2003, unless the commissioner of Health and Human Services certifies that the advisory committee is exempt from abolition on September 1, 2003. The following advisory committees were not certified as exempt from abolition as published in the August 29, 2003, issue of the Texas Register (28 TexReg 7493): Citizens' Planning Advisory Committee; Medical Advisory Committee; Quality Services Council; Public Responsibility Committees; and Local Authority Technical Advisory Committee.

No comments on the proposed repeals were received.

These rules are adopted for repeal under the Texas Health and Safety Code, §532.015(a), which provides the Texas Mental Health and Mental Retardation Board with broad rulemaking authority.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on February 19, 2004.

TRD-200401174

Rodolfo Arredondo

Chairman, Texas MHMR Board

Texas Department of Mental Health and Mental Retardation

Effective date: March 10, 2004

Proposal publication date: December 26, 2003

For further information, please call: (512) 206-4516

Subchapter B. INTERAGENCY AGREEMENTS

25 TAC §411.59

The Texas Department of Mental Health and Mental Retardation (TDMHMR) adopts the repeal of §411.59 of Chapter 411, Subchapter B, concerning interagency agreements, without changes as published in the December 26, 2003, issue of the Texas Register (28 TexReg 11494).

The rule is repealed because House Bill 2823, 78th Legislature, repealed §29.011(b)-(e) of the Texas Education Code, which required TDMHMR and other state agencies to adopt by rule a memorandum of understanding (MOU) concerning individual transition planning for students receiving special education services. The rule of the Texas Education Agency (TEA) that contained the text of the MOU, which §411.59 references, was repealed by TEA in the November 7, 2003, issue of the Texas Register (28 TexReg 9832).

No comments on the proposed repeal were received.

This rule is adopted for repeal under the Texas Health and Safety Code, §532.015(a), which provides the Texas Mental Health and Mental Retardation Board with broad rulemaking authority.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on February 19, 2004.

TRD-200401175

Rodolfo Arredondo

Chairman, Texas MHMR Board

Texas Department of Mental Health and Mental Retardation

Effective date: March 10, 2004

Proposal publication date: December 26, 2003

For further information, please call: (512) 206-4516

Subchapter D. ADMINISTRATIVE HEARINGS OF THE DEPARTMENT IN CONTESTED CASES

25 TAC §411.160

The Texas Department of Mental Health and Mental Retardation (TDMHMR) adopts amendments to §411.160 of Chapter 411, Subchapter D, concerning administrative hearings of the department in contested cases, without changes as published in the December 12, 2003, issue of the Texas Register (28 TexReg 11082).

The amendments eliminate references to an administrative hearing decision being appealable. TDMHMR has determined that an administrative hearing decision is appealable through judicial review only if statutorily or otherwise authorized by law.

Written comments on the proposal were received from Tropical Texas Center for MHMR in Edinburg.

The commenter disagreed with deleting the phrase "and appealable through a judicial review" in §411.160(f)(2) and recommended that the phrase be replaced by a statement indicating the decision is appealable through judicial review only if statutorily authorized. The commenter also disagreed with the proposed deletion of the last sentence in §411.160(f)(3). TDMHMR declines to change the language as recommended by the commenter because subsection (f) pertains to when an administrative hearing decision in a contested case is final, not whether or when the decision may be appealed through a judicial review. Additionally, the elimination of the language as proposed is consistent with the contemporaneous repeal of §411.161 relating to judicial review.

The rule is adopted under the Texas Health and Safety Code, §532.015(a), which provides the Texas Mental Health and Mental Retardation Board with broad rulemaking authority, and the Texas Government Code, §2001.004, which requires a state agency to adopt rules of practice stating the nature and requirements of all available formal and informal procedures.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on February 19, 2004.

TRD-200401176

Rodolfo Arredondo

Chairman, Texas MHMR Board

Texas Department of Mental Health and Mental Retardation

Effective date: March 10, 2004

Proposal publication date: December 12, 2003

For further information, please call: (512) 206-4516

25 TAC §411.161

The Texas Department of Mental Health and Mental Retardation (TDMHMR) adopts the repeal of §411.161 of Chapter 411, Subchapter D, concerning administrative hearings of the department in contested cases, without changes as published in the December 12, 2003, issue of the Texas Register (28 TexReg 11083).

The rule is repealed because TDMHMR has determined that an administrative hearing decision is appealable through judicial review only if statutorily or otherwise authorized by law.

No comments on the proposed repeal were received.

The rule is adopted for repeal under the Texas Health and Safety Code, §532.015(a), which provides the Texas Mental Health and Mental Retardation Board with broad rulemaking authority, and the Texas Government Code, §2001.004, which requires a state agency to adopt rules of practice stating the nature and requirements of all available formal and informal procedures.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on February 19, 2004.

TRD-200401177

Rodolfo Arredondo

Chairman, Texas MHMR Board

Texas Department of Mental Health and Mental Retardation

Effective date: March 10, 2004

Proposal publication date: December 12, 2003

For further information, please call: (512) 206-4516

Chapter 419. MEDICAID STATE OPERATING AGENCY RESPONSIBILITIES

Subchapter D. HOME AND COMMUNITY-BASED SERVICES (HCS) PROGRAM

25 TAC §419.164

The Texas Department of Mental Health and Mental Retardation (department) adopts amendments to §419.164, concerning process for enrollment of applicants, of Chapter 419, Subchapter D, governing Home and Community-based Services (HCS) Program, without changes to the text as published in the December 26, 2003, issue of the Texas Register (28 TexReg 11495).

The amendments implement provisions that are consistent with the conditions of Texas Home Living (TxHmL) Program waiver application, as approved by the Centers for Medicare and Medicaid Services (CMS).

The amendments allow a mental retardation authority to offer a Home and Community-based Services (HCS) Program vacancy to an applicant or legally authorized representative if the department has proposed the applicant's discharge or has discharged the applicant from the TxHmL Program because the applicant no longer meets the eligibility criteria for TxHmL as described in §419.556(a)(5) and (8). The amendments are necessary to implement amendments to §419.570(e)(1), which are adopted contemporaneously in this issue of the Texas Register .

A hearing to accept oral and written testimony from members of the public concerning the proposal was held on January 16, 2004, in Austin. No testimony was offered. No written comments were received.

The amendments are adopted under the Texas Health and Safety Code, §532.015(a), which provides the Texas Board of Mental Health and Mental Retardation with broad rulemaking authority; the Texas Government Code, §531.021(a), and the Texas Human Resources Code, §32.021(a), which provide the Texas Health and Human Services Commission (THHSC) with the authority to administer the federal medical assistance (Medicaid) program in Texas; Acts 1995, 74th Texas Legislature, Chapter 6, §1, (Senate Bill 509), which clarifies the authority of THHSC to delegate the operation of all or part of a Medicaid program to a health and human services agency; and the Human Resources Code, §32.021(c), which provides an agency operating part of the Medicaid program with the authority to adopt necessary rules for the proper and efficient operation of the program. THHSC has delegated to the department the authority to operate the HCS Program.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on February 20, 2004.

TRD-200401240

Rodolfo Arredondo

Chair, Texas MHMR Board

Texas Department of Mental Health and Mental Retardation

Effective date: March 11, 2004

Proposal publication date: December 26, 2003

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

Subchapter N. TEXAS HOME LIVING (TxHmL) PROGRAM

25 TAC §§419.554 - 419.556, 419.558, 419.559, 419.567, 419.568, 419.570

The Texas Department of Mental Health and Mental Retardation (department) adopts amendments to §§419.554 - 419.556, 419.558, 419.567, 419.568, and 419.570, and new §419.559 of Chapter 419, Subchapter N, governing the Texas Home Living (TxHmL) Program. The amendments to §419.570 and new §419.559 are adopted with changes to the text as published in the December 26, 2003, issue of the Texas Register (28 TexReg 11496). The amendments to §§419.554 - 419.556, 419.558, 419.567, and 419.568 are adopted without changes. The repeal of existing §419.559, concerning department review of individual plan of care (IPC), is adopted contemporaneously in this issue of the Texas Register .

The amendments and new section add provisions that are consistent with the Texas Home Living (TxHmL) Program waiver application as submitted to the Centers for Medicare and Medicaid Services (CMS) for approval.

The amendments to §419.554 eliminate language in subsection (a) that was no longer needed and specify in subsection (c) that the counties in the state are divided into 41 local service areas instead of 42. New subsection (g) provides that the TxHmL Program service components are divided into two service categories: the Community Living Service Category, with an annual service category limit of $8,000 per individual per Individual Plan of Care (IPC) year, and the Technical and Professional Supports Service Category, with an annual service category limit of $2,000 per individual per IPC year.

The amendments to §419.555 provide in subsection (g)(2) that adaptive aids costing more than $2,000 but not more than $6,000 in an IPC year may be provided to an individual if the department approves an exception to the service category limit on the Professional and Technical Supports Service Category. In subsection (h)(1), the amendments provide that minor home modifications costing more than $2,000 but not more than $7,500 in an IPC year may be provided to an individual if the department approves an exception to the service category limit of the Professional and Technical Support Service Category.

The amendments to §419.556(a)(5) provide that to be eligible for the TxHmL Program, an individual's IPC must be approved in accordance with §419.558 of the subchapter.

The amendments to §419.558(d) provide that the department will review a submitted initial, revised, or renewal IPC and will approve, modify, or not approve the IPC, but will not approve an IPC having a total cost of more than $10,000 per IPC year. New subsection (f) incorporates provisions of repealed §419.559 and provides that the department may review an IPC at any time to determine if the type and amount of each service component specified in the IPC are appropriate. The subsection further requires the mental retardation authority's (MRA's) service coordinator to submit documentation supporting the IPC upon request from the department.

New §419.559 describes the process that the service coordinator and department must follow to authorize an increase in the service category limit of either the Community Living Service Category or the Professional and Technical Supports Service Category. Subsection (d) specifies that the department will deny an increase to the Professional and Technical Supports Service Category if the request is for more than $6,000 per IPC year for adaptive aids, more than $7,500 per IPC year for minor home modifications, more than $300 per IPC year for additional minor home modifications or maintenance of minor home modifications when the lifetime limit for modifications has been reached, or more than $1,000 per IPC year for dental treatment.

The amendment to §419.567(d) clarifies the content of enrollment information that is to be transmitted by an MRA to the department.

The amendments to §419.568(a)(2) require an MRA's service coordinator to submit any request for an increase in a service category limit to the department for approval and retain documentation of the request when such a request is associated with a renewal or revision of an IPC.

The amendments to §419.570 reorganize the provisions of the current rule and specify the actions to be taken by a service coordinator when permanent discharge is proposed for an individual because the individual no longer meets the eligibility criteria described in §419.556(a)(5) and (8). These provisions allow the department to direct the service coordinator to inform the individual or legally authorized representative (LAR) that the department will, based on availability, offer the individual services through the Home and Community-based Services (HCS) Program and direct the service coordinator to assist the individual or LAR to make application for other services as requested.

Revisions are made to §419.559(e) upon adoption. Language is revised to clarify that an individual's IPC will be reviewed as part of, not after, the process of reviewing a request for an increase to a service category limit.

Revisions are made to §419.570 upon adoption. Language is added to subsection (a) to clarify the department's expectation that a service coordinator will, prior to recommending an individual's discharge because of an individual's or LAR's refusal to cooperate in service delivery or planning, provide a written explanation to the individual or LAR that such refusal may result in the individual's discharge from the program. Subsection (c) of the same section is revised to specify a deadline by which a service coordinator must submit a request for permanent discharge to the department, to clarify that documentation must specify the reason for the discharge request, and to specify additional information that must be included in the request if the reason for a proposed discharge is an individual's or LAR's refusal to cooperate in service planning or service delivery.

A hearing to accept oral and written testimony from members of the public concerning the proposal was held on January 16, 2004, in Austin. Testimony was offered by the Texas Council for Developmental Disabilities, Austin; and the Center for Disability Studies at The University of Texas, Austin.

Written comments concerning the proposal were submitted by the parent/guardian of a state mental retardation facility resident, Garland; Advocacy, Inc., Austin; Parents Association for the Retarded of Texas (PART), Austin; and Private Providers Association of Texas (PPAT), Austin.

Concerning §419.558, one commenter advocated for increasing the TxHmL Program annual cost ceiling to $25,000 as was authorized in the budget. The department declines to revise the annual cost ceiling. Executive Order RP13, which directed the Texas Health and Human Services Commission (THHSC) and the department to develop the TxHmL waiver, specified that the waiver be implemented using "existing general revenue." The $10,000 annual cost ceiling established for the program provided the best opportunity to accomplish the direction established by the executive order.

Concerning the service category limits described in §419.554(g)(1) and (2), one commenter stated concern about the Professional and Technical Service Category Limit, especially with regard to meeting the service needs of children. In addition, the commenter stated that while the department might grant a request to increase the service category limit, as permitted by §419.559, the limits set on individual services within a service category can still severely limit an individual's access to needed services. The department responds that it declines to eliminate or revise the service categories or the service category limits. Service utilization data from other programs operated by the department support the limits that have been selected. If these limits are inappropriate for a particular individual, §419.559 provides a mechanism to request an increase in a service category limit as long as the total cost of services does not exceed $10,000 per year. With regard to the remarks concerning limits on certain services within a service category, the department declines to revise these cost limits and responds that when other resources are taken into account (e.g., Texas Health Steps), these are reasonable limits.

One commenter commended the department for including a mechanism to allow increases in service category limits. The commenter also noted that §419.559 describes the conditions under which a service coordinator may request an increase in a service category, but limits the amount requested for minor home modifications, adaptive aids, and dental treatment. The commenter stated that the department's intent to allow increases to all the other service components in the Professional and Technical Support Service Category was not stated clearly and recommended that the rule be clarified. The department declines to make the revision as requested because the provisions in §419.559 clearly delineate the conditions for approval of requests for increases in service category limits related to the adaptive aids, minor home modifications, and dental treatment benefits. The department's intent to limit increases for these services is also stated in §419.554 in the definition of adaptive aids and the definition of minor home modifications.

Concerning §419.559, which describes the conditions under which a request for an increase in a service category limit may be approved by the department, a commenter requested that the principles of self-determination be incorporated into the process. Two commenters requested that the department ensure that the mechanism for requesting an increase in a service category limit be "family friendly" and not place significant additional burdens on individuals and families. One commenter stated that the department must ensure that all individuals enrolled in the TxHmL Program must be made "keenly aware" of their right to request an increase in a service category limit. The commenter also recommended that the department maintain detailed data on the services that are requested and the exceptions that are granted. With regard to the request to add reference to the principles of self-determination, the department responds all service planning in the TxHmL Program is grounded in the philosophy of person-directed planning. Because the decision to request an increase in a service category limit is one that is made by an individual's service planning team using a person-directed planning process as described in §419.567, the department declines to restate the use of these principles in the referenced section. The department acknowledges the comments recommending that the department establish an easy to use process for making these requests, that all individuals are informed that such requests can be made, and the department maintain detailed information concerning these requests and their disposition, however, the department declines to add these processes to the rule.

With regard to §419.570, one commenter stated she was pleased that there was a possibility for an individual to move from the TxHmL Program to the HCS Program when necessary and justifiable. The commenter added that her organization would be monitoring such movement. The department acknowledges the comment.

Two commenters requested revisions to §419.570 clarifying that if an individual has an LAR, the MRA and department must direct all communication regarding discharge to the LAR and not the individual. The commenters recommended either the replacement of "or" with "and" in every use of the phrase "individual or LAR," or that language be added specifying that an LAR makes all decisions for the individual. The department declines to make the recommended revisions and responds that, based on the definition of LAR contained in §419.553, an LAR is recognized as the person authorized by law to make decisions on behalf of an individual.

Two commenters requested that §419.570(a)(3) be revised to specify that an individual's refusal to cooperate in the delivery or planning of services will not result in the individual's permanent discharge from the program if the "refusal to cooperate" is a manifestation of the individual's disability. The department responds that it declines to include the recommended revision because the provisions added at §419.570(c)(3) set forth documentation that must be provided to the department if permanent discharge is recommended based on an individual's refusal to cooperate in the planning or delivery of services. This documentation must describe specific actions of an individual considered by the service coordinator and program provider to demonstrate the individual's refusal to cooperate as well as the service coordinator's and program provider's specific actions to resolve the issue. The department believes this information will allow it to determine whether appropriate alternatives have been pursued or if other alternatives should be attempted, or approve the recommendation to discharge the individual.

Concerning §419.570(a)(3), a commenter recommended the addition of language to indicate that efforts were made to resolve the problems prior to requesting the discharge of an individual due to the refusal to cooperate in the planning or delivery of services. The department agrees and has revised the subsection to require the submission of documentation describing the action taken by the service coordinator and program provider to attempt to resolve the cause of the individual's refusal to cooperate.

The department received several comments on aspects of the TxHmL Program that are unrelated to the amendments and new section. The department acknowledges these comments and will address them outside the rulemaking process.

The amendments and new section are adopted under the Texas Health and Safety Code, §532.015(a), which provides the Texas Board of Mental Health and Mental Retardation with broad rulemaking authority; the Texas Government Code, §531.021(a), and the Texas Human Resources Code, §32.021(a), which provide the Texas Health and Human Services Commission (THHSC) with the authority to administer the federal medical assistance (Medicaid) program in Texas; Acts 1995, 74th Texas Legislature, Chapter 6, §1, (Senate Bill 509), which clarifies the authority of THHSC to delegate the operation of all or part of a Medicaid program to a health and human services agency; and the Human Resources Code, §32.021(c), which provides an agency operating part of the Medicaid program with the authority to adopt necessary rules for the proper and efficient operation of the program. THHSC has delegated to the department the authority to operate the TxHmL Program.

§419.559.Request to Increase Service Category Limits.

(a) If the cost of either service category included on an IPC submitted to the department exceeds the service category limits described in §419.554(g)(1) and (2) of this title (relating to Description of the Texas Home Living (TxHmL) Program) but the total annual cost of the IPC does not exceed $10,000, an individual's service coordinator must request from the department an increase in the appropriate service category limit.

(1) The service coordinator must submit the request in writing.

(2) The written request must be accompanied by documentation meeting the requirements of §419.558(b)(1) - (3) of this title (relating to Individual Plan of Care (IPC)).

(b) The department will review the request and approve or deny it.

(c) The department may approve the request if the increase is determined necessary to protect the individual's health and welfare or to prevent the individual's admission to institutional services.

(d) The department will deny a request for an increase to the Professional and Technical Support Service Category if the request is for:

(1) more than $6,000 per IPC year for adaptive aids;

(2) more than $7,500 per IPC year for minor home modifications;

(3) more than $300 per IPC year for additional minor home modifications or minor home modification maintenance if the lifetime limit has been reached; or

(4) more than $1,000 per IPC year for dental treatment.

(e) As part of its review of the request, the department will review the individual's IPC in accordance with §419.558(d) of this title.

(f) If the department denies a request to increase a service category limit, the department will:

(1) notify the individual's service coordinator; and

(2) notify the individual or LAR of the individual's right to request a fair hearing in accordance with §419.571 of this title (relating to Fair Hearings).

§419.570.Permanent Discharge from the TxHmL Program.

(a) An individual may be permanently discharged from the TxHmL Program if:

(1) the individual no longer meets the eligibility criteria specified in §419.556 of this title (relating to Eligibility Criteria);

(2) the individual or LAR requests permanent discharge; or

(3) the individual or LAR refuses to cooperate in the delivery or planning of services and:

(A) such refusal is documented by the program provider and the service coordinator; and

(B) the service coordinator has explained to the individual or LAR in writing that such refusal may result in discharge from the TxHmL Program.

(b) The department may propose permanent discharge of an individual at its own initiation or based on an MRA's request for permanent discharge of an individual.

(c) To request permanent discharge of an individual by the department, the individual's service coordinator must, within fourteen calendar days of determining that one of the criteria in subsection (a) of this section is met, submit a written request containing the following information to the department and provide a copy of the request to the individual or LAR:

(1) the reason permanent discharge is requested;

(2) a discharge plan documenting, as appropriate:

(A) that, prior to submission of the request for permanent discharge, the individual or LAR was informed of the individual's option to transfer to another program provider and the consequences of permanent discharge for receiving future TxHmL Program services; and

(B) the service linkages that are in place following the individual's discharge from the TxHmL Program; and

(3) if permanent discharge is recommended for the reason stated in subsection (a)(3) of this section:

(A) a description of the action by the individual or LAR demonstrating refusal to cooperate in the delivery or planning of services and the effect of such action on the planning or delivery of services;

(B) a description of the action by the program provider and service coordinator, including face-to-face meetings between the service coordinator and individual or LAR, to resolve the circumstances causing the individual's or LAR's refusal to cooperate; and

(C) a copy of the written explanation sent by the service coordinator to the individual or LAR explaining the consequences of refusal to cooperate.

(d) If the department proposes to permanently discharge an individual, the department must send a written discharge notification to the individual or LAR, the TxHmL Program provider, and the MRA indicating the effective date of the discharge and the individual's right to a fair hearing in accordance with §419.571 of this title (relating to Fair Hearings).

(e) If the reason for the proposed permanent discharge is that the individual no longer meets the eligibility criteria described in §419.556(a)(5) and (8) of this title, the department will instruct the service coordinator to:

(1) inform the individual or LAR that the department will, based on availability, offer the individual a program vacancy in the Home and Community-based Services Program in accordance with §419.164(b)(2) of this title (relating to Process for Enrollment of Applicants); and

(2) offer to assist the individual or LAR to apply for other services for which the individual may be eligible including other home and community-based service programs and ICF/MR Program services.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on February 20, 2004.

TRD-200401241

Rodolfo Arredondo

Chair, Texas MHMR Board

Texas Department of Mental Health and Mental Retardation

Effective date: March 11, 2004

Proposal publication date: December 26, 2003

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

25 TAC §419.559

The Texas Department of Mental Health and Mental Retardation (department) adopts the repeal of §419.559, concerning department review of individual plan of care (IPC), of Chapter 419, Subchapter N, governing Texas Home Living (TxHmL) Program, without changes to the proposal as published in the December 26, 2003, issue of the Texas Register (28 TexReg 11499).

The repeal permits the department to adopt new §419.559, concerning request to increase service category limits. The new section, which is adopted contemporaneously in this issue of the Texas Register , implements provisions that are consistent with the TxHmL Program waiver application, as approved by the Centers for Medicare and Medicaid Services (CMS). Provisions contained in §419.559 have been incorporated into amendments to §419.558, which are adopted contemporaneously in this issue of the Texas Register .

A hearing to accept oral and written testimony from members of the public concerning the proposal was held on January 16, 2004, in Austin. No testimony was offered. No written comments were received.

The repeal is adopted under the Texas Health and Safety Code, §532.015(a), which provides the Texas Board of Mental Health and Mental Retardation with broad rulemaking authority; the Texas Government Code, §531.021(a), and the Texas Human Resources Code, §32.021(a), which provide the Texas Health and Human Services Commission (THHSC) with the authority to administer the federal medical assistance (Medicaid) program in Texas; Acts 1995, 74th Texas Legislature, Chapter 6, §1, (Senate Bill 509), which clarifies the authority of THHSC to delegate the operation of all or part of a Medicaid program to a health and human services agency; and the Human Resources Code, §32.021(c), which provides an agency operating part of the Medicaid program with the authority to adopt necessary rules for the proper and efficient operation of the program. THHSC has delegated to the department the authority to operate the TxHmL Program.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on February 20, 2004.

TRD-200401239

Rodolfo Arredondo

Chair, Texas MHMR Board

Texas Department of Mental Health and Mental Retardation

Effective date: March 11, 2004

Proposal publication date: December 26, 2003

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