Part 1.
DEPARTMENT OF AGING AND DISABILITY SERVICES
Chapter 2.
MENTAL RETARDATION AUTHORITY RESPONSIBILITIES
Subchapter F. CONTINUITY OF SERVICES--STATE MENTAL RETARDATION FACILITIES
The Health and Human Services Commission (HHSC) proposes, on behalf
of the Department of Aging and Disability Services (DADS), amendments to §2.253,
concerning definitions, §§2.264 - 2.269, concerning admission and
commitment, and §2.274, concerning living options for individuals residing
in state mental retardation facilities (state MR facilities); new §2.283,
concerning mental retardation authority (MRA) and state MR facility responsibilities;
and the repeal of §2.283 and §2.284, concerning references and distribution,
in Chapter 2, Subchapter F, Continuity of Services--State Mental Retardation
Facilities.
Background and Purpose
The purpose of the amendments and new section is to implement Senate Bill
(SB) 40 and House Bill (HB) 2579, 79th Legislature, Regular Session, 2005,
which amended the Texas Government Code, Chapter 531, Subchapter D-1, governing
permanency planning for individuals under 22 years of age. For an individual
under 22 years of age for whom admission to an institution is sought or who
is receiving services in an institution, SB 40 requires DADS to delegate the
development of a permanency plan to an MRA, to a private entity other than
an entity providing long-term institutional care, or to DADS personnel. For
state MR facilities, DADS has chosen to delegate these responsibilities to
the designated MRA for the individual. HB 2579 requires that DADS ensure that
an individual's legally authorized representative (LAR) is fully informed
of all available community-based services for which the individual may be
eligible, the benefits to the individual of living in a family or community
setting, that the placement is considered temporary, and that an ongoing permanency
planning process is required. HB 2579 also requires DADS to require an LAR
to provide detailed contact information and agree to make reasonable efforts
to participate in the individual's life and planning activities.
The amendments and new section are also proposed to update and clarify
permanency planning requirements. The proposed amendments correct rule cross-references
and agency names that were rendered incorrect from the consolidation of several
state agencies, including the Texas Department of Human Services and part
of the Texas Department of Mental Health and Mental Retardation, to create
DADS.
The purpose of the repeal is to make this subchapter more consistent with
the majority of DADS rules, which do not include sections about references
and distribution.
Section-by-Section Summary
The amendment to §2.253 adds or updates the following acronyms: CARE,
CRCG, DADS, ICAP, and MRA. The amendment also updates other definitions in
the section to correct agency names and mailing addresses.
The amendments to §§2.264 - 2.269 and 2.274 make minor clarifications
and remove the permanency planning requirements in these sections in order
to incorporate all permanency planning requirements in new §2.283. The
amendments also correct agency names, rule cross references, and mailing addresses.
New §2.283 details the responsibilities of an MRA and a state MR facility
for permanency planning for an individual under 22 years of age by referencing
rules governing the Intermediate Care Facilities for Persons with Mental Retardation
(ICF/MR) Program. These rules are proposed elsewhere in this issue of the
The repeal of §2.283 and §2.284 will make this subchapter more
consistent with the majority of DADS rules that do not include references
and distribution for information within the rules.
Fiscal Note
Gordon Taylor, DADS Chief Financial Officer, has determined that, for the
first five years the proposed amendments, new section, and repeal are in effect,
there are foreseeable implications relating to costs or revenues of local
governments. There are no foreseeable implications relating to costs or revenues
of state government.
The effect on local governments for the first five years the proposed amendments,
new section, and repeal are in effect is an estimated additional cost of $33,482
in fiscal year (FY) 2006; $36,087 in FY 2007; $38,689 in FY 2008; $41,292
in FY 2009; and $43,895 in FY 2010. These costs are based on the requirement
that an MRA conduct the permanency planning process, including regularly convening
a permanency planning meeting and developing a permanency plan for an individual
every six months after the initial plan is developed.
Small Business and Micro-business Impact Analysis
DADS has determined that there is no adverse economic effect on small businesses
or micro-businesses or on businesses of any size as a result of enforcing
or administering the amendments, new section, and repeal, because the proposal
places no new requirements on businesses that would have a significant cost
to businesses.
Public Benefit and Costs
Barry Waller, DADS Assistant Commissioner for Provider Services, has determined
that, for each year of the first five years the amendments, new section, and
repeal are in effect, the public benefit expected as a result of enforcing
the amendments, new section, and repeal is that having an MRA conduct the
permanency planning process helps ensure that no conflict of interest exists
in developing an individual's permanency plan. In addition, the amendments,
new section, and repeal will ensure that a state MR facility cooperates with
the individual's designated MRA and will encourage the LAR to be involved
and participate in the life of an individual residing in the state MR facility.
Mr. Waller anticipates that there will be an economic cost to MRAs as explained
in the fiscal note above. The amendments, new section, and repeal will not
affect a local economy.
Takings Impact Assessment
DADS has determined that this proposal does not restrict or limit an owner's
right to his or her property that would otherwise exist in the absence of
government action and, therefore, does not constitute a taking under Texas
Government Code, §2007.043.
Public Comment
Questions about the content of this proposal may be directed to Christy
Dees at (512) 438-3162 in the Policy Development and Oversight Unit of DADS'
Center for Policy and Innovation. Written comments on the proposal may be
submitted to Texas Register Liaison, Legal Services-011, Department of Aging
and Disability Services W-615, P.O. Box 149030, Austin, Texas 78714-9030,
within 30 days of publication in the
Texas Register
.
1.
GENERAL PROVISIONS
40 TAC §2.253
Statutory Authority
The amendment is proposed under Texas Government Code, §531.0055,
which provides that the HHSC executive commissioner shall adopt rules for
the operation and provision of services by the health and human services agencies,
including DADS; Texas Human Resources Code, §161.021, which provides
that the Aging and Disability Services Council shall study and make recommendations
to the HHSC executive commissioner and the DADS commissioner regarding rules
governing the delivery of services to persons who are served or regulated
by DADS; and Texas Government Code, Chapter 531, Subchapter D-1, which provides
that the HHSC executive commissioner shall adopt rules for implementation
of a process by which DADS informs legally authorized representatives of all
community-based services before persons are admitted to an institution and
rules regarding the transfer of persons from an institution in an emergency
situation.
The amendment implements Texas Government Code, §§531.0055, 531.1521,
and 531.166, and Texas Human Resources Code, §161.021.
§2.253.Definitions.
The following words and terms, when used in this subchapter, have the
following meanings, unless the context clearly indicates otherwise:
(1) - (2)
(No change.)
(3)
CARE--
DADS' Client Assignment and Registration System,
a database with demographic and other data about an individual who is receiving
services and supports or on whose behalf services and supports have been requested.
[
(4)
Commissioner--The commissioner of
DADS
[
[(5)
Community Resource Coordination Group
(CRCG)--A local interagency group composed of public and private agencies
that develops service plans for individuals whose needs can be met only through
interagency coordination and cooperation. The role and responsibilities of
the involved agencies, including MRAs, school districts, and providers, are
described in §411.56 of this title (relating to Memorandum of Understanding
(MOU) on Coordinated Services to Children and Youths).]
(5)
[
(6)
CRCG (Community Resource Coordination
Group)--A local interagency group composed of public and private agencies
that develops service plans for individuals whose needs can be met only through
interagency coordination and cooperation. 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 Health
and Human Services Commission website at www.hhsc.state.tx.us/crcg/crcg.htm.
(7)
DADS--The Department of Aging and Disability
Services.
(8)
[
(9)
[
(10)
[
(11)
[
(12)
[
(A)
the purpose of the emergency admission, including the circumstances
that precipitated the need for the admission and the expected outcomes from
the admission;
(B)
the responsibilities of each party regarding the care,
treatment, and discharge of the individual, including how the terms of the
agreement will be monitored;
(C)
the length of time of the emergency admission, which is
that amount of time necessary to accomplish the purpose of the admission;
and
(D)
the anticipated date of discharge.
(13)
[
(14)
[
(15)
[
(16)
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.
(17)
[
[(16)
Individual--A person who has or is believed
to have mental retardation.]
(18)
[
(A)
Team membership always includes:
(i)
the individual;
(ii)
the individual's LAR, if any; and
(iii)
persons specified by an MRA or a state MR facility, as
appropriate, who are professionally qualified and/or certified or licensed
with special training and experience in the diagnosis, management, needs,
and treatment of individuals with mental retardation.
(B)
Other participants in IDT meetings may include:
(i)
other concerned persons whose inclusion is requested by
the individual or the LAR;
(ii)
at the discretion of the MRA or state MR facility, persons
who are directly involved in the delivery of mental retardation services to
the individual; and
(iii)
if the individual is school eligible, representatives
of the appropriate school district.
(19)
Individual--A person who has or is believed
to have mental retardation.
(20)
[
(21)
[
(22)
[
(23)
[
(A)
legal status: The individual 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 his or her disabilities 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 individual 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 individual with mental retardation; and
(C)
voluntariness: The consent has been given voluntarily and
free from coercion and undue influence.
(24)
[
(25)
[
(26)
[
(27)
[
(28)
[
(29)
[
(30)
[
(31)
[
(32)
[
(A)
the individual;
(B)
the individual's legally authorized representative (LAR),
if any;
(C)
actively-involved family members or friends of the individual
who has neither the ability to provide legally adequate consent nor an LAR;
(D)
other concerned persons whose inclusion is requested by
the individual with the ability to provide legally adequate consent or the
LAR;
(E)
a representative from the designated MRA; and
(F)
a representative from the individual's provider.
(33)
[
(34)
[
(35)
[
(36)
[
(A)
the purpose of the respite admission including the circumstances
that precipitated the need for the admission and the expected outcomes from
the admission;
(B)
the length of time the individual will receive respite
services from the state MR facility; and
(C)
the responsibilities of each party regarding the care,
treatment, and discharge of the individual.
(37)
[
(38)
[
(39)
[
(40)
[
(41)
[
(42)
[
(43)
[
(44)
[
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State on May 19, 2006.
TRD-200602839
Marianne Reat
Interim General Counsel
Department of Aging and Disability Services
Earliest possible date of adoption: July 2, 2006
For further information, please call: (512) 438-3734
40 TAC §§2.264 - 2.269
Statutory Authority
The amendments are proposed under Texas Government Code, §531.0055,
which provides that the HHSC executive commissioner shall adopt rules for
the operation and provision of services by the health and human services agencies,
including DADS; Texas Human Resources Code, §161.021, which provides
that the Aging and Disability Services Council shall study and make recommendations
to the HHSC executive commissioner and the DADS commissioner regarding rules
governing the delivery of services to persons who are served or regulated
by DADS; and Texas Government Code, Chapter 531, Subchapter D-1, which provides
that the HHSC executive commissioner shall adopt rules for implementation
of a process by which DADS informs legally authorized representatives of all
community-based services before persons are admitted to an institution and
rules regarding the transfer of persons from an institution in an emergency
situation.
The amendments implement Texas Government Code, §§531.0055, 531.1521,
and 531.166, and Texas Human Resources Code, §161.021.
§2.264.MRA IDT Recommendation Concerning the Commitment of an Adult or a Minor or the Regular Voluntary Admission of an Adult to a State MR Facility Under the PMRA.
[
(1)
in accordance with THSC, §593.013:
(A)
interview the individual or the individual's LAR;
(B)
review the individual's:
(i)
social and medical history;
(ii)
medical assessment, which must include an audiological,
neurological, and vision screening;
(iii)
psychological and social assessment, including the ICAP;
and
(iv)
determination of adaptive behavior level;
(C)
determine the individual's need for additional assessments,
including educational and vocational assessments;
(D)
obtain any additional assessment(s) necessary to plan services;
(E)
identify the individual's or LAR's habilitation and service
preferences and the individual's needs;
(F)
recommend services to address the individual's needs that
consider the individual's or LAR's interests, choices, and goals and, for
an
[
(G)
encourage the individual and the individual's LAR to participate
in IDT meetings;
(H)
if desired, 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 record is valid;
(I)
prepare a written report of its findings and recommendations
that is signed by each IDT member and send a copy of the report within 10
working days to the individual or LAR, as appropriate; and
(J)
if the individual is being considered for commitment to
the state MR facility, submit the IDT report promptly to the court, as ordered,
and to the individual or LAR, as appropriate; and
(2)
determine whether:
(A)
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;
(B)
the individual cannot be adequately and appropriately habilitated
in an available, less restrictive setting; and
(C)
the state MR facility provides habilitative services, care,
training and treatment appropriate to the individual's needs.
[(b)
For the individual under 22 years of
age, the MRA will ensure that permanency planning is included as an integral
part of service planning, as required in subsection (a)(1)(F) of this section,
with an emphasis on identifying:]
[(1)
the family's natural supports and strengths that, supplemented
by activities and supports provided or facilitated by the MRA, will enable
the individual under 18 years of age to remain in the family home;]
[(2)
a family-based alternative that will secure for an individual
under 18 years of age a consistent, nurturing environment that supports a
continued relationship with the individual's family to the extent possible
and, if necessary, provide an enduring, positive relationship with a specific
adult who will be an advocate for the individual; or]
[(3)
the natural supports and strengths of an individual from
18 to 22 years of age that, when supplemented by activities and supports provided
or facilitated by the MRA, will result in the individual having a consistent
and nurturing environment as defined by the individual and LAR.]
[(c)
The MRA must take the following actions
to facilitate permanency planning:]
[(1)
discuss with the individual or LAR the problems or issues
that led the individual or LAR to request admission to a state MR facility;]
[(2)
discuss with the family or LAR of an individual under
18 years of age the barriers to having the individual reside in the family
home or discuss with an individual 18 to 22 years of age and LAR the barriers
to moving to a consistent and nurturing environment as determined by the individual
and LAR;]
[(3)
identify natural supports and family strengths that will
accomplish permanency planning outcomes; and]
[(4)
identify activities and supports that can be provided
by the family, LAR, or MRA that will prepare the individual for a family-based
alternative, if the individual and LAR choose that option.]
[(d)
If the individual is under 22 years of
age, the MRA must explain to the individual and LAR that:]
[(1)
before the individual is admitted to the state MR facility,
the commissioner or designee must approve the admission; and]
[(2)
the individual's residency at a state MR facility will
last no longer than six months unless the commissioner or designee approves
a six-month extension.]
[(e)
If an individual is under 22 years of
age, the MRA must inform the individual 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 MRA or a state MR facility; or]
[(2)
request the MRA to designate a volunteer advocate.]
[(f)
If the individual or LAR requests that
the MRA designate a volunteer advocate or the MRA cannot locate the individual's
LAR, 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:]
[(A)
is part of the individual's natural support network; and]
[(B)
is not employed by or under contract with the MRA or a
state MR facility; or]
[(3)
a person or a child advocacy organization representative
who:]
[(A)
is knowledgeable about community services and supports;]
[(B)
is familiar with the permanency planning philosophy and
processes; and]
[(C)
is not employed by or under contract with the MRA or state
MR facility.]
[(g)
If the MRA is 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 (e)(3) of this section. If the statewide
advocacy organization is unable to assist the MRA in identifying a volunteer
advocate, the MRA must document all efforts to designate a volunteer advocate
in accordance with subsection (f) of this section.]
§2.265.MRA Referral of an Applicant to a State MR Facility.
(a)
If an individual or LAR requests residential services in
a state MR facility, the
designated
MRA [
(b)
If the MRA's IDT determines that an applicant meets the
criteria described in
§2.255
[
(1) - (2)
(No change.)
(3)
contact the [
(4) - (5)
(No change.)
(c)
If the MRA's IDT determines that the applicant does not
meet the criteria for commitment or regular voluntary admission to a state
MR facility as described in this subchapter, the MRA will:
(1)
notify the applicant or LAR in writing of the determination
and explain the procedure for the applicant or LAR to request a review of
the IDT's determination by the MRA in accordance with
§2.46
[
(2)
if the applicant was requesting an interstate transfer,
notify the [
(d)
If a review by the MRA of the IDT's determination results
in the determination being upheld, the MRA will inform the applicant or LAR
in writing that a request for a review by
DADS'
[
(e)
If the applicant or LAR requests a review,
DADS'
[
(1) - (3)
(No change.)
(f)
If the MRA determines that an applicant meets the criteria
described in
§2.261
[
(1) - (2)
(No change.)
(3)
request the applicant's enrollment in the ICF/MR Program
as described in
§9.244(e)
[
(g)
A complete application packet, as referenced in subsection
(b)(4) of this section, must include:
(1)
(No change.)
(2)
a completed Application for Admission including signature
of the applicant or the applicant's LAR (copies of the Application for Admission
are available by contacting the
Department of Aging and Disability Services,
Provider Services Division,
[
(3)
a DMR report with statement that the applicant has mental
retardation, as described in
§5.155(g)
[
(4)
(No change.)
(5)
an IDT report completed as described in
§2.264
[
(6) - (16)
(No change.)
(17)
for the applicant who is a minor, results of the CRCG
staffing held as described in
§2.257(c)
[
(18)
for the applicant under 22 years of age, results of the
MRA's permanency planning process as described in
§2.283(a) of this
subchapter (relating to MRA and State MR Facility Responsibilities)
[
(19)
(No change.)
(h)
A complete application packet for emergency admission of
an individual, as referenced in subsection (f)(2) of this section, must include:
(1)
a completed Application for Admission including signature
of the applicant or the applicant's LAR (copies of the Application for Admission
are available by contacting the
Department of Aging and Disability Services,
Provider Services Division,
[
(2) - (11)
(No change.)
(12)
for the applicant who is a minor, the results of the CRCG
staffing held as described in
§2.257(c)
[
(13)
for the applicant under 22 years of age, results of the
MRA's permanency planning process as described in
§2.283(a)
[
(14) - (15)
(No change.)
(16)
if requested by
DADS
[
(A)
a DMR report with a statement that the applicant has mental
retardation, as described in
§5.155(g)
[
(B)
(No change.)
(i)
A complete application packet for admission of an individual
for respite care, as referenced in subsection (f)(2) of this section, must
include:
(1)
a completed Application for Admission including signature
of the applicant or the applicant's LAR (copies of the Application for Admission
are available by contacting the
Department of Aging and Disability Services,
Provider Services Division,
[
(2) - (12)
(No change.)
(13)
if requested by
DADS
[
(A)
a DMR report with a statement that the applicant has mental
retardation, as described in
§5.155(g)
[
(B)
(No change.)
§2.266.Process for Admission of an Adult or a Minor Who Has Been Committed to a State MR Facility Under the PMRA.
(a)
(No change.)
(b)
The MRA must retain a copy of the application packet, as
described in
§2.265(g)
[
(c)
DADS
[
(d)
Upon notification from
DADS
[
(1) - (3)
(No change.)
(e)
The state MR facility will offer admission under the commitment
order to one of those individuals identified by
DADS
[
(f)
If the applicant or the applicant's LAR accepts the proposed
admission, the MRA must request enrollment of the applicant in the ICF/MR
Program as described in
§9.244
[
(g) - (i)
(No change.)
[(j)
Within three days of the admission of
an individual under 22 years of age, the state MR facility must make the notifications
described in §419.222(c) and (d) of this title (relating to Permanency
Planning for Individuals Under 22 Years of Age).]
§2.267.Process for the Regular Voluntary Admission of an Adult to a State MR Facility Under the PMRA.
(a)
(No change.)
(b)
If the MRA IDT recommends that the applicant be admitted
to a state MR facility for regular voluntary services, the MRA must retain
a copy of the application packet, as described in
§2.265(g)
[
(c)
DADS
[
(d)
Upon notification from
DADS
[
(1) - (3)
(No change.)
(e)
The state MR facility will offer admission to one of those
individuals identified by
DADS
[
(f)
If the applicant or the applicant's LAR accepts the proposed
admission, the MRA must request enrollment of the applicant in the ICF/MR
Program as described in
§9.244
[
(g)
(No change.)
[(h)
Within three days of the admission of
an individual under 22 years of age, the state MR facility must make the notifications
described in §419.222(c) and (d) of this title (relating to Permanency
Planning for Individuals Under 22 Years of Age).]
§2.268.Process for Placement of a Minor under the Texas Family Code in a State MR Facility.
(a)
If
DADS
[
(b) - (c)
(No change.)
(d)
Within 30 calendar days after the minor is admitted to
the state MR facility, the state MR facility will schedule an IDT meeting
to develop an
individual program plan (IPP)
[
(e)
Not later than the 75th calendar day after the date the
court issues a placement order under Texas Family Code, §55.33, the state
MR facility will submit to the court a report that:
(1) - (2)
(No change.)
(3)
if the state MR facility believes the minor is unfit to
proceed, states whether the minor meets the commitment criteria described
in
§2.257
[
(f)
If the state MR facility believes that the minor is unfit
to proceed and meets the commitment criteria described in
§2.257
[
(g)
Not later than the 75th calendar day after the date the
court issues a placement order under Texas Family Code, §55.52, the state
MR facility will submit to the court a report that:
(1)
(No change.)
(2)
states whether the state MR facility believes the minor
has mental retardation
[
(3)
if the state MR facility believes the minor
has mental
retardation
[
(h)
If the state MR facility believes that the minor
has mental retardation
[
[(i)
Within three days of the admission of
the minor, the state MR facility must make the notifications described in §419.222(c)
and (d) of this title.]
§2.269.Process for the Emergency Admission of an Adult or a Minor to a State MR Facility Under the PMRA.
(a)
(No change.)
(b)
If the MRA determines that an individual meets the criteria
for emergency admission under
§2.261
[
(c)
DADS
[
(d)
Upon notification from
DADS
[
(1) - (3)
(No change.)
(e)
The state MR facility will offer emergency admission to
one of those individuals identified by
DADS
[
(f)
Prior to admission of the individual, the MRA must:
(1)
(No change.)
(2)
send a copy of the completed Emergency Admission/Discharge
Agreement to the individual or LAR, the state MR facility
,
and
the
Department of Aging and Disability Services, Provider Services Division,
[
(3)
(No change.)
(g)
If the individual is under 22 years of age, the Emergency
Admission/Discharge Agreement must
incorporate elements of the individual's
permanency plan, as appropriate,
[
(h) - (i)
(No change.)
(j)
Within 30 calendar days after the individual is admitted,
the state MR facility will arrange for:
(1)
a DMR to be conducted in accordance with
§5.155
[
(2)
an IDT at the state MR facility to make findings and recommendations
in accordance with the process
described
[
(k) - (l)
(No change.)
(m)
If
DADS
[
[(n)
Within three days of the admission of
an individual under 22 years of age, the state MR facility must make the notifications
described in §419.222(c) and (d) of this title.]
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State on May 19, 2006.
TRD-200602840
Marianne Reat
Interim General Counsel
Department of Aging and Disability Services
Earliest possible date of adoption: July 2, 2006
For further information, please call: (512) 438-3734
40 TAC §2.274
Statutory Authority
The amendment is proposed under Texas Government Code, §531.0055,
which provides that the HHSC executive commissioner shall adopt rules for
the operation and provision of services by the health and human services agencies,
including DADS; Texas Human Resources Code, §161.021, which provides
that the Aging and Disability Services Council shall study and make recommendations
to the HHSC executive commissioner and the DADS commissioner regarding rules
governing the delivery of services to persons who are served or regulated
by DADS; and Texas Government Code, Chapter 531, Subchapter D-1, which provides
that the HHSC executive commissioner shall adopt rules for implementation
of a process by which DADS informs legally authorized representatives of all
community-based services before persons are admitted to an institution and
rules regarding the transfer of persons from an institution in an emergency
situation.
The amendment implements Texas Government Code, §§531.0055, 531.1521,
and 531.166, and Texas Human Resources Code, §161.021.
§2.274.Consideration of Living Options for Individuals Residing in State MR Facilities.
(a)
A state MR facility must discuss living options with the
individual or the individual's LAR using the State MR Facility Living Options
instrument at least annually or upon request by an individual or LAR. Copies
of the State MR Facility Living Options instrument
may be obtained from
the Department of Aging and Disability Services, Provider Services Division,
State Mental Retardation Facilities Section, P.O. Box 149030, Mail Code W-511,
Austin, Texas 78714-9030
[
(1) - (4)
(No change.)
(5)
IDT's conclusions as to whether or not the permanency planning
goal
[
[(b)
If the review of living options for an
individual under 22 years of age results in an IDT conclusion that the individual's
permanency planning goals have not been met and that the individual should
remain at the state MR facility, the IDT must request approval for the individual's
continued residence as described in §419.222(g) of this title (relating
to Permanency Planning for Individuals Under 22 Years of Age).]
(b)
[
(1)
The individual with the ability to provide legally adequate
consent or the LAR of an individual who does not have the ability to provide
legally adequate consent may choose to:
(A)
invite other family members, friends, or other interested
persons to the meeting; or
(B)
exclude any and all family members, friends, or other interested
persons from attending the meeting.
(2)
The state MR facility must:
(A)
encourage the attendance and participation in the meeting
by those persons invited by the individual or LAR;
(B)
make a reasonable attempt to schedule the meeting at a
time that is convenient for the individual's LAR and those family members,
friends, or other persons invited by the individual or LAR; and
(C)
notify the designated MRA of the meeting at the same time
the individual and LAR are notified and request from the MRA the information
about alternative living arrangements and community services and supports
in the MRA's local service area that the IDT will need before making a recommendation
as described in subsection (a)(4) of this section.
[(3)
If the individual is under 22 years of
age, the state MR facility must inform the individual and LAR that they may
request a volunteer advocate to assist in permanency planning. The individual
or LAR may:]
[(A)
select a person who is not employed by or under contract
with the state MR facility; or]
[(B)
request the state MR facility to designate a volunteer
advocate.]
[(4)
If the individual or LAR requests that
the state MR facility designate a volunteer advocate or the state MR facility
cannot locate the individual's LAR, the state MR facility must attempt to
designate a volunteer advocate to assist in permanency planning who is, in
order of preference:]
[(A)
an adult relative who is actively involved with the individual;]
[(B)
a person who:]
[(i)
is part of the individual's natural support network; and]
[(ii)
is not employed by or under contract with the state MR
facility; or]
[(C)
a person or a child advocacy organization representative
who:]
[(i)
is knowledgeable about community services and supports;]
[(ii)
is familiar with the permanency planning philosophy and
processes; and]
[(iii)
is not employed by or under contract with the state
MR facility.]
[(5)
If the state MR facility is unable to
locate a volunteer advocate locally, the state MR facility must request assistance
from a statewide advocacy organization in identifying an available volunteer
advocate who meets the requirements described in paragraph (4)(C) of this
subsection. If the statewide advocacy organization is unable to assist the
state MR facility in identifying a volunteer advocate, the state MR facility
must document all efforts to designate a volunteer advocate in accordance
with paragraph (4) of this subsection.]
[(d)
If the individual is a minor and:]
[(1)
parental rights have not been terminated, the IDT recommendation
regarding living arrangements will be based on the minor's permanency planning
needs for services and supports which will:]
[(A)
enable the minor to return to the family home if the LAR
chooses to do so; or]
[(B)
secure a family-based alternative that provides a consistent,
nurturing environment for the minor and supports a continued relationship
with the minor's family to the extent possible and, if necessary, provide
an enduring, positive relationship with a specific adult who will be an advocate
for the minor; or]
[(2)
parental rights have been terminated, the IDT recommendation
will be based on the permanency planning needs for support and services that
will enable the minor to move to a family-based alternative living arrangement
that will secure a consistent, nurturing environment that supports a continued
relationship with the minor's family to the extent possible and an enduring,
positive relationship with a specific adult who will be an advocate for that
minor.]
[(e)
If the individual is between 18 and 22
years of age, the IDT recommendation regarding living arrangements will be
based on the individual's natural supports and strengths that, when supplemented
by activities and supports provided or facilitated by a provider or MRA, will
result in the individual having a consistent and nurturing alternative living
arrangement as defined by the applicant and LAR.]
(c)
[
(d)
[
(e)
[
(f)
[
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State on May 19, 2006.
TRD-200602841
Marianne Reat
Interim General Counsel
Department of Aging and Disability Services
Earliest possible date of adoption: July 2, 2006
For further information, please call: (512) 438-3734
40 TAC §2.283, §2.284
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Department of Aging and Disability Services or in the Texas Register
office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
Statutory Authority
The repeal is proposed under Texas Government Code, §531.0055, which
provides that the HHSC executive commissioner shall adopt rules for the operation
and provision of services by the health and human services agencies, including
DADS; and Texas Human Resources Code, §161.021, which provides that the
Aging and Disability Services Council shall study and make recommendations
to the HHSC executive commissioner and the DADS commissioner regarding rules
governing the delivery of services to persons who are served or regulated
by DADS.
The repeal implements Texas Government Code, §531.0055, and Texas
Human Resources Code, §161.021.
§2.283.References.
§2.284.Distribution.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State on May 19, 2006.
TRD-200602842
Marianne Reat
Interim General Counsel
Department of Aging and Disability Services
Earliest possible date of adoption: July 2, 2006
For further information, please call: (512) 438-3734
40 TAC §2.283
Statutory Authority
The new section is proposed under Texas Government Code, §531.0055,
which provides that the HHSC executive commissioner shall adopt rules for
the operation and provision of services by the health and human services agencies,
including DADS; Texas Human Resources Code, §161.021, which provides
that the Aging and Disability Services Council shall study and make recommendations
to the HHSC executive commissioner and the DADS commissioner regarding rules
governing the delivery of services to persons who are served or regulated
by DADS; and Texas Government Code, Chapter 531, Subchapter D-1, which provides
that the HHSC executive commissioner shall adopt rules for implementation
of a process by which DADS informs legally authorized representatives of all
community-based services before persons are admitted to an institution and
rules regarding the transfer of persons from an institution in an emergency
situation.
The new section implements Texas Government Code, §§531.0055,
531.1521, and 531.166, and Texas Human Resources Code, §161.021.
§2.283.MRA and State MR Facility Responsibilities.
(a)
MRA responsibilities.
(1)
Except for a request for admission for respite care, when
admission to a state MR facility is requested for an individual under 22 years
of age, the designated MRA must:
(A)
before the individual is admitted to the facility, inform
the LAR:
(i)
of the benefits of living in a family or community setting;
(ii)
that the individual's stay in the facility is considered
temporary; and
(iii)
that an ongoing permanency planning process is required;
(B)
take or ensure that the actions described in §9.244(f)
of this title (relating to Applicant Enrollment in the ICF/MR Program) are
taken to conduct permanency planning; and
(C)
take the actions described in §9.244(g) - (i) of this
title regarding a volunteer advocate.
(2)
An MRA does not have to comply with paragraph (1)(A) of
this subsection if the individual has been committed to a state MR facility
under Chapter 46B, Code of Criminal Procedure, or Chapter 55, Family Code.
(3)
For an individual under 22 years of age who resides in
a state MR facility, the designated MRA must conduct a permanency planning
review in accordance with §9.250 of this title (relating to Permanency
Planning Reviews).
(b)
State MR facility responsibilities.
(1)
Upon the admission of an individual under 22 years of age
to a state MR facility, a state MR facility:
(A)
requests from and encourages the LAR to provide the information
described in §9.222(e) of this title (relating to Permanency Planning
and LAR Participation for Individuals Under 22 Years of Age);
(B)
makes notifications as described in §9.222(c) and
(d) of this title; and
(C)
incorporates permanency planning as an integral part of
the individual's initial individual program plan (IPP) and identifies information
in the IPP as described in §9.222(a) of this title.
(2)
For an individual under 22 years of age who resides in
a state MR facility, a state MR facility:
(A)
incorporates permanency planning as an integral part of
the individual's IPP and identifies information in the IPP as described in §9.222(a)
of this title;
(B)
takes the actions described in §9.222(b) of this title
to assist the individual's designated MRA in conducting permanency planning;
(C)
requests from and encourages the LAR to provide the information
described in §9.222(e) of this title;
(D)
provides notice to the individual and LAR of a meeting
to conduct the annual review of the individual's IPP as described in §9.222(g)
of this title;
(E)
attempts to notify the LAR of an emergency situation as
described in §9.222(h) of this title;
(F)
attempts to locate the LAR as described in §9.222(i)
of this title, if the LAR does not respond to a notification by the state
MR facility; and
(G)
notifies DADS as described in §9.222(j) of this title
if the LAR cannot be located.
(3)
A state MR facility makes reasonable accommodations to
promote the participation of the LAR as described in §9.222(f) of this
title.
(4)
A state MR facility documents compliance with the requirements
of this subsection in the individual's record.
(c)
DADS referral. If, within one year of the date DADS receives
the notification described in subsection (b)(2)(G) of this section, DADS is
unable to locate the LAR, DADS refers the case to:
(1)
the Child Protective Services Division of the Department
of Family and Protective Services if the individual is under 18 years of age;
or
(2)
the Adult Protective Services Division of the Department
of Family and Protective Services if the individual is 18-22 years of age.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State on May 19, 2006.
TRD-200602843
Marianne Reat
Interim General Counsel
Department of Aging and Disability Services
Earliest possible date of adoption: July 2, 2006
For further information, please call: (512) 438-3734
Subchapter E. ICF/MR PROGRAMS--CONTRACTING
The Health and Human Services Commission (HHSC) proposes, on behalf
of the Department of Aging and Disability Services (DADS), amendments to §9.203,
concerning definitions, §9.222, concerning permanency planning for individuals
under 22 years of age, and §9.244, concerning applicant enrollment; and
proposes new §9.250, concerning permanency planning reviews, in Chapter
9, Mental Retardation Services--Medicaid State Operating Agency Responsibilities,
Subchapter E, ICF/MR Programs--Contracting.
Background and Purpose
The purpose of the amendments and new section is to implement Senate Bill
(SB) 40 and House Bill (HB) 2579, 79th Legislature, Regular Session, 2005,
which amended the Texas Government Code, Chapter 531, Subchapter D-1, governing
permanency planning for individuals under 22 years of age. For an individual
under 22 years of age for whom admission to an institution is sought or who
is receiving services in an institution, SB 40 requires DADS to delegate the
development of a permanency plan to a mental retardation authority (MRA),
to a private entity other than an entity providing long-term institutional
care, or to DADS personnel. DADS has chosen to delegate these responsibilities
to the MRA for the local service area in which the individual or legally authorized
representative (LAR) resides. HB 2579 requires that DADS ensure that an individual's
LAR is fully informed of all available community-based services for which
the individual may be eligible, the benefits to the individual of living in
a family or community setting, that the placement is considered temporary,
and that an ongoing permanency planning process is required. HB 2579 also
requires DADS to require an LAR to provide detailed contact information and
agree to make reasonable efforts to participate in the individual's life and
planning activities.
The amendments and new section are also proposed to update and clarify
permanency planning requirements. The proposed amendments correct rule cross-references
and agency names that were rendered incorrect from the consolidation of several
state agencies, including the Texas Department of Human Services and part
of the Texas Department of Mental Health and Mental Retardation, to create
DADS.
Section-by-Section Summary
The amendment to §9.203 adds definitions for the following terms and
acronyms: DADS, emergency situation, and MR/RC Assessment. The amendment also
updates other definitions in the section and corrects agency names and rule
cross-references.
The amendment to §9.222(a) provides clarification about what must
be included in an individual program plan (IPP) regarding the permanency planning
goal for an individual under 22 years of age. The amendment to §9.222(b)
requires a program provider to assist an MRA in conducting permanency planning
for an individual under 22 years of age, as required by SB 40, including participation
in permanency planning meetings and encouraging contact between and participation
by the LAR and the individual. The program provider must refrain from providing
the LAR with inaccurate or misleading information regarding the risks of moving
the individual to another facility or community setting. The amendment to §9.222(e)
requires the program provider to request from and encourage the LAR to provide
detailed contact information that includes the contact information for a relative
or other person that the program provider may contact in an emergency situation,
as required by HB 2579. The LAR must notify the program provider of any changes
to the contact information and make reasonable efforts to participate in the
individual's life. The amendment to §9.222(f) requires the program provider
to make reasonable accommodations to promote the LAR's participation in the
planning and decision-making regarding the individual's care. The amendment
to §9.222(g) - (i) requires the program provider to provide written notice
of an IPP review meeting and request the LAR to respond to the notice of the
IPP meeting and, if an emergency situation occurs, respond to the situation.
The amendment to §9.222(j) and (k) requires a program provider to request
that DADS initiate a search for the LAR if the program provider is unable
to locate the LAR and states that DADS will refer the individual's case to
the Department of Family and Protective Services if DADS cannot locate the
LAR within a year of the program provider's request. The amendment to §9.222(l)
requires the program provider to attempt to obtain consent from the LAR to
transfer an individual to another facility. The amendment to §9.222(m)
requires the program provider to document compliance with the requirements
of permanency planning in the individual's record.
The amendment to §9.244(d) requires an MRA to inform an LAR: (1) of
the benefits of living in a family or community setting, (2) that the placement
is considered temporary, and (3) that the MRA will continue ongoing permanency
planning. The MRA must notify the LAR of this information before the placement
of the individual in the facility or not later than the 14th working day after
notification unless the LAR extends the time period. The amendment to §9.244(f)
requires an MRA to convene a permanency planning meeting before an individual
is admitted to a facility or not later than the 14th working day after the
date the MRA is notified of the admission, and review the applicant's records
before the meeting. The meeting must include choosing the applicant's permanency
planning goal with discussion and identification of the issues and barriers
to accomplishing that goal. The MRA must make reasonable accommodations to
promote the participation of the LAR in developing the permanency plan.
New §9.250 requires an MRA to complete a permanency plan every six
months after the initial permanency planning meeting. The MRA must notify
the LAR no later than 21 days before the meeting date and complete the same
steps as required for the initial permanency planning meeting.
Fiscal Note
Gordon Taylor, DADS Chief Financial Officer, has determined that, for the
first five years the proposed amendments and new section are in effect, there
are foreseeable implications relating to costs or revenues of local governments.
There are no foreseeable implications relating to costs or revenues of state
government.
The effect on local governments for the first five years the proposed amendments
and new section are in effect is an estimated additional cost of $62,182 in
fiscal year (FY) 2006; $67,018 in FY 2007; $71,852 in FY 2008; $76,689 in
FY 2009; and $81,519 in FY 2010. These costs are based on the requirement
that an MRA conduct the permanency planning process, including regularly convening
a permanency planning meeting and developing a permanency plan for an individual
every six months after the initial plan is developed.
Small Business and Micro-business Impact Analysis
DADS has determined that there is no adverse economic effect on small businesses
or micro-businesses or on businesses of any size as a result of enforcing
or administering the amendments and new section, because the proposal deletes
the requirement for a program provider to conduct permanency planning for
an individual under 22 years of age.
Public Benefit and Costs
Veronda Durden, DADS Assistant Commissioner for Regulatory Services, has
determined that, for each year of the first five years the amendments and
new section are in effect, the public benefit expected as a result of enforcing
the amendments and new section is that having an MRA conduct the permanency
planning process helps ensure that no conflict of interest exists in developing
an individual's permanency plan. In addition, the amendments and new section
will ensure that the program provider cooperates with the MRA and will encourage
the LAR to be involved and participate in the life of the individual residing
in the facility.
Ms. Durden anticipates that there will be an economic cost to MRAs as explained
in the fiscal note above. The amendments and new section will not affect a
local economy.
Takings Impact Assessment
DADS has determined that this proposal does not restrict or limit an owner's
right to his or her property that would otherwise exist in the absence of
government action and, therefore, does not constitute a taking under Texas
Government Code, §2007.043.
Public Comment
Questions about the content of this proposal may be directed to Christy
Dees at (512) 438-3162 in the Policy Development and Oversight Unit of DADS'
Center for Policy and Innovation. Written comments on the proposal may be
submitted to Texas Register Liaison, Legal Services-013, Department of Aging
and Disability Services W-615, P.O. Box 149030, Austin, Texas 78714-9030,
within 30 days of publication in the
Texas Register
.
1.
GENERAL REQUIREMENTS
40 TAC §9.203
Statutory Authority
The amendment is proposed under Texas Government Code, §531.0055,
which provides that the HHSC executive commissioner shall adopt rules for
the operation and provision of services by the health and human services agencies,
including DADS; Texas Human Resources Code, §161.021, which provides
that the Aging and Disability Services Council shall study and make recommendations
to the HHSC executive commissioner and the DADS commissioner regarding rules
governing the delivery of services to persons who are served or regulated
by DADS; Texas Government Code, §531.021, which provides HHSC with the
authority to administer federal funds and plan and direct the Medicaid program
in each agency that operates a portion of the Medicaid program; and Texas
Government Code, Subchapter D-1, which provides that the HHSC executive commissioner
shall adopt rules for implementation of a process by which DADS informs legally
authorized representatives of all community-based services before persons
are admitted to an institution and rules regarding the transfer of persons
from an institution in an emergency situation.
The amendment affects Texas Government Code, §531.0055, §531.021, §531.1521,
and §531.166, and Texas Human Resources Code, §161.021.
§9.203.Definitions.
The following words and terms, when used in this subchapter, [
(1) - (3)
(No change.)
(4)
Applied income--The portion of an individual's cost of
care that the individual is responsible for paying. The amount of an individual's
applied income is determined by the policies and procedures authorized by
the Health and Human Services Commission
[
(5) - (8)
(No change.)
(9)
CARE--
DADS' Client Assignment and Registration System,
a database with demographic and other data about an individual who is receiving
services and supports or on whose behalf services and supports have been requested.
[
(10) - (12)
(No change.)
(13)
CRCG (Community Resource Coordination Group)--A local
interagency group composed of public and private agencies that develops service
plans for individuals whose needs can be met only through interagency coordination
and cooperation.
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 Health and Human Services
Commission website at www.hhsc.state.tx.us/crcg/crcg.htm.
[
(14)
DADS--The Department of Aging and Disability
Services.
(15)
[
(16)
[
(17)
[
(18)
[
(19)
Emergency situation--An unexpected situation
involving an individual's health, safety, or welfare, of which a person of
ordinary prudence would determine that the LAR should be informed, such as:
(A)
an individual needing emergency medical
care;
(B)
an individual being removed from his residence
by law enforcement;
(C)
an individual leaving his residence without
notifying staff and not being located; and
(D)
an individual being moved from his residence
to protect the individual (for example, because of a hurricane, fire, or flood).
(20)
[
(21)
[
(22)
[
(23)
[
[
(24)
[
(25)
[
(26)
[
(27)
[
(28)
[
(29)
[
(30)
[
(31)
[
(32)
[
(33)
[
(34)
[
(35)
[
(36)
MR/RC Assessment--A form used by DADS
for LOC determination and LON assignment.
(37)
[
(38)
[
(39)
[
(40)
[
(41)
[
(42)
[
(43)
[
(44)
[
(45)
[
(46)
[
(47)
[
(48)
[
(49)
[
(50)
[
(51)
[
(A)
is attributed 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 individuals with mental retardation, and requires treatment or
services similar to those required for individuals with mental retardation;
(B)
is manifested before the individual reaches age 22;
(C)
is likely to continue indefinitely; and
(D)
results in substantial functional limitation in at least
three 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.
(52)
[
(A)
the date it was created; and
(B)
the cost of the item or service.
(53)
[
(54)
[
(55)
[
(56)
[
(57)
[
(58)
[
(59)
[
(60)
[
(61)
[
(62)
[
(63)
[
(64)
[
(65)
[
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State on May 19, 2006.
TRD-200602830
Marianne Reat
Interim General Counsel
Department of Aging and Disability Services
Earliest possible date of adoption: July 2, 2006
For further information, please call: (512) 438-3734
40 TAC §9.222
Statutory Authority
The amendment is proposed under Texas Government Code, §531.0055,
which provides that the HHSC executive commissioner shall adopt rules for
the operation and provision of services by the health and human services agencies,
including DADS; Texas Human Resources Code, §161.021, which provides
that the Aging and Disability Services Council shall study and make recommendations
to the HHSC executive commissioner and the DADS commissioner regarding rules
governing the delivery of services to persons who are served or regulated
by DADS; Texas Government Code, §531.021, which provides HHSC with the
authority to administer federal funds and plan and direct the Medicaid program
in each agency that operates a portion of the Medicaid program; and Texas
Government Code, Subchapter D-1, which provides that the HHSC executive commissioner
shall adopt rules for implementation of a process by which DADS informs legally
authorized representatives of all community-based services before persons
are admitted to an institution and rules regarding the transfer of persons
from an institution in an emergency situation.
The amendment affects Texas Government Code, §531.0055, §531.021, §531.1521,
and §531.166, and Texas Human Resources Code, §161.021.
§9.222.Permanency Planning and LAR Participation for Individuals Under 22 Years of Age [
(a)
As required by Texas Government Code, §531.153, a
program provider must incorporate permanency planning as an integral part
of the IPP for each individual under 22 years of age residing in the facility.
In order to accomplish the permanency planning goal in accordance with §9.244(f)
of this subchapter (relating to Applicant Enrollment in the ICF/MR Program),
the
[
(1)
for
[
[
(2)
[
(b)
A
[
(1)
cooperate with the MRA responsible for
conducting permanency planning by:
(A)
allowing access to an individual's records
or providing other information in a timely manner as requested by the MRA
or the Health and Human Services Commission;
(B)
participating in meetings to review the
individual's permanency plan; and
(C)
identifying, in coordination with the individual's
MRA, activities, supports, and services that can be provided by the family,
LAR, program provider, or the MRA to prepare the individual for an alternative
living arrangement;
[
[
[
[
(2)
[
(3)
[
(4)
[
(5)
keep a copy of the individual's current
permanency plan in the individual's record; and
(6)
refrain from providing the LAR with inaccurate
or misleading information regarding the risks of moving the individual to
another facility or community setting.
(c)
Within three days
after
[
(1)
the MRA in whose local service area the facility is located
(see
www.dads.state.tx.us/contact/mra/index.cfm
[
(2)
the
CRCG
[
(3)
the local school district for the area in which the facility
is located, if the individual is at least three years of age, or the early
childhood intervention (ECI) program for the county in which the facility
is located, if the individual is less than three years of age (see
www.dars.state.tx.us/ecis/index.shtml
[
(d)
(No change.)
(e)
A program provider must:
(1)
request from and encourage an LAR to provide
the following information for an individual during the annual IPP meeting
and, for an applicant, upon admission:
(A)
the LAR's:
(i)
name;
(ii)
address;
(iii)
telephone number;
(iv)
driver license number and state of issuance
or personal identification card number issued by the Department of Public
Safety; and
(v)
place of employment and the employer's
address and telephone number;
(B)
the name, address, and telephone number
of a relative of the individual or other person whom DADS or the program provider
may contact in an emergency situation, a statement indicating the relationship
between that person and the individual, and at the LAR's option:
(i)
that person's driver license number and
state of issuance or personal identification card number issued by the Department
of Public Safety; and
(ii)
the name, address, and telephone number
of that person's employer; and
(C)
a signed acknowledgement of responsibility
stating that the LAR agrees to:
(i)
notify the program provider of any changes
to the contact information submitted; and
(ii)
make reasonable efforts to participate
in the individual's life and in planning activities for the individual; and
(2)
inform the LAR that if the information
described in paragraph (1) of this subsection is not provided or is not accurate
and the program provider and DADS are unable to locate the LAR as described
in subsections (j) and (k) of this section, DADS refers the case to the Department
of Family and Protective Services.
(f)
For an individual under 22 years of age,
a program provider must:
(1)
make reasonable accommodations to promote
the participation of the LAR in all planning and decision-making regarding
the individual's care, including participating in:
(A)
the initial development and annual review
of the individual's IPP;
(B)
decision-making regarding the individual's
medical care;
(C)
routine IDT meetings; and
(D)
decision-making and other activities involving
the individual's health and safety; and
(2)
ensure that reasonable accommodations include:
(A)
conducting a meeting in person or by telephone,
as mutually agreed upon by the program provider and the LAR;
(B)
conducting a meeting at a time and, if
the meeting is in person, at a location that is mutually agreed upon by the
program provider and the LAR;
(C)
if the LAR has a disability, providing
reasonable accommodations in accordance with the Americans with Disabilities
Act, including providing an accessible meeting location or a sign language
interpreter, if appropriate; and
(D)
providing a language interpreter, if appropriate.
(g)
For an individual under 22 years of age,
a program provider must provide written notice to the LAR of a meeting to
conduct an annual review of the individual's IPP no later than 21 days before
the meeting date and request a response from the LAR.
(h)
If an emergency situation occurs, a program
provider must attempt to notify the LAR as soon as the emergency situation
allows and request a response from the LAR.
(i)
If an LAR does not respond to a notice
of the individual's IPP review meeting, a request for the LAR's consent, or
an emergency situation, the program provider must attempt to locate the LAR
by contacting a person identified by the LAR in the contact information described
in subsection (e) of this section.
(j)
No later than 30 days after the date a
program provider determines that it is unable to locate the LAR, the program
provider must notify DADS of that determination and request that DADS initiate
a search for the LAR.
(k)
If, within one year of the date DADS receives
the notification described in subsection (j) of this section, DADS is unable
to locate the LAR, DADS refers the case to:
(1)
the Child Protective Services Division
of the Department of Family and Protective Services if the individual is under
18 years of age; or
(2)
the Adult Protective Services Division
of the Department of Family and Protective Services if the individual is 18-22
years of age.
(l)
Before an individual who is under 18 years
of age, or who is 18-22 years of age and for whom an LAR has been appointed,
is transferred to another facility operated by the transferring program provider,
the program provider must attempt to obtain consent for the transfer from
the LAR unless the transfer is made because of a serious risk to the health
and safety of the individual or another person.
[
[
[
[
[
[
[
[
[
[
[
[
[
[
[
[
(m)
[
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State on May 19, 2006.
TRD-200602831
Marianne Reat
Interim General Counsel
Department of Aging and Disability Services
Earliest possible date of adoption: July 2, 2006
For further information, please call: (512) 438-3734
40 TAC §9.244, §9.250
Statutory Authority
The amendment and new section are proposed under Texas Government Code, §531.0055,
which provides that the HHSC executive commissioner shall adopt rules for
the operation and provision of services by the health and human services agencies,
including DADS; Texas Human Resources Code, §161.021, which provides
that the Aging and Disability Services Council shall study and make recommendations
to the HHSC executive commissioner and the DADS commissioner regarding rules
governing the delivery of services to persons who are served or regulated
by DADS; Texas Government Code, §531.021, which provides HHSC with the
authority to administer federal funds and plan and direct the Medicaid program
in each agency that operates a portion of the Medicaid program; and Texas
Government Code, Subchapter D-1, which provides that the HHSC executive commissioner
shall adopt rules for implementation of a process by which DADS informs legally
authorized representatives of all community-based services before persons
are admitted to an institution and rules regarding the transfer of persons
from an institution in an emergency situation.
The amendment and new section affect Texas Government Code, §531.0055, §531.021, §531.1521,
and §531.166, and Texas Human Resources Code, §161.021.
§9.244.Applicant Enrollment in the ICF/MR Program .
(a)
Except as provided in subsection (b) of this section, only
an MRA may request enrollment of an applicant by
DADS
[
(b)
A program provider may request enrollment of an applicant
by
DADS in accordance with subsection (k) of this section
[
(1)
has received ICF/MR services from a non-state operated
facility during the 180 days
before
[
(2)
(No change.)
(c)
An MRA must request an applicant's enrollment if:
(1)
the program provider selected by the applicant or [
(2)
the applicant or LAR notifies the MRA that the applicant
or LAR chooses to accept the admission offered by the
program
provider.
(d)
If an MRA receives the notifications described in subsection
(c) of this section, the MRA must comply with
§5.159(c)
[
(1)
Except as provided in paragraphs (2) and
(3) of this subsection, before placement of an applicant in a facility, the
MRA must inform the LAR:
(A)
of the benefits of living in a family or
community setting;
(B)
that the placement of the applicant is
considered temporary; and
(C)
that an ongoing permanency planning process
is required.
(2)
If an MRA is notified of a request for
enrollment after the applicant is admitted to the facility, the MRA must provide
the information described in paragraph (1) of this subsection to the LAR not
later than the 14th working day after the date the MRA is notified of the
request for the enrollment, unless this time period is extended by the LAR.
(3)
An MRA does not have to comply with paragraph
(1) or (2) of this subsection if the applicant has been committed to a facility
under Chapter 46B, Code of Criminal Procedure, or Chapter 55, Family Code.
(e)
To request an applicant's enrollment, an MRA must, within
15 working days after the MRA receives both notifications described in subsection
(c) of this section:
(1)
(No change.)
(2)
obtain an ICAP score for the applicant by:
(A)
(No change.)
(B)
administering the ICAP if an ICAP score for the applicant
does not exist, is not available, or is not endorsed by the MRA;
and
(3)
request or review an LOC determination and LON for the
applicant by:
(A)
(No change.)
(B)
reviewing the existing MR/RC Assessment for the applicant
if the applicant has a current LOC determination and:
(i)
(No change.)
(ii)
if the MRA endorses the existing MR/RC Assessment, notifying
the selected program provider in writing that no changes to the current LOC
or LON are recommended
.
[
[
(f)
Upon notification of a request for enrollment
of an applicant under 22 years of age, an MRA must take or ensure that the
following actions are taken to conduct permanency planning:
(1)
The MRA must convene a permanency planning
meeting with the LAR and, if possible, the applicant before admission or,
if notified of a request for enrollment after the applicant's admission, not
later than the 14th working day after the date the MRA is notified of the
request.
(2)
Before the permanency planning meeting,
the MRA staff must review the applicant's records and, if possible, meet the
applicant.
(3)
During the permanency planning meeting,
the meeting participants must discuss and choose one of the following goals:
(A)
for an applicant under 18 years of age:
(i)
to live in the applicant's family home
where the natural supports and strengths of the applicant's family are supplemented,
as needed, by activities and supports provided or facilitated by the MRA or
program provider; or
(ii)
to live in a family-based alternative
in which a family other than the applicant's family:
(I)
has received specialized training in the
provision of support and in-home care for an individual under 18 years of
age with mental retardation;
(II)
will provide a consistent and nurturing
environment in a family home that supports a continued relationship with the
applicant's family to the extent possible; and
(III)
if necessary, will provide an enduring,
positive relationship with a specific adult who will be an advocate for the
applicant; or
(B)
for an applicant 18-22 years of age, to
live in a setting chosen by the applicant or LAR in which the applicant's
natural supports and strengths are supplemented by activities and supports
provided or facilitated by the MRA or program provider, and to achieve a consistent
and nurturing environment in the least restrictive setting, as defined by
the applicant and LAR.
(4)
To accomplish the goal chosen in accordance
with paragraph (3) of this subsection, the meeting participants must discuss
and identify:
(A)
the problems or issues that led the applicant
or LAR to request admission to a facility;
(B)
the applicant's daily support needs;
(C)
for an applicant under 18 years of age:
(i)
barriers to having the applicant reside
in the family home;
(ii)
supports that would be necessary for the
applicant to remain in the family home; and
(iii)
actions that must be taken to overcome
the barriers and provide the necessary supports;
(D)
for an applicant 18-22 years of age, the
barriers to the applicant moving to a consistent and nurturing environment
as defined by the applicant and LAR;
(E)
the importance for the applicant to live
in a long-term nurturing relationship with a family;
(F)
alternatives to the applicant living in
an institutional setting;
(G)
the applicant's and LAR's need for information
and preferences regarding those alternatives;
(H)
how, after admission to the facility, to
facilitate regular contact between the applicant and the applicant's family,
and, if desired by the applicant and family, between the applicant and 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)
assistance needed by the applicant's family:
(i)
in maintaining a nurturing relationship
with the applicant; and
(ii)
preparing the family for the applicant's
eventual return to the family home or move to a family-based alternative;
and
(L)
action steps, both immediate and long term,
for achieving the permanency plan goal.
(5)
The MRA must make reasonable accommodations
to promote the participation of the LAR in a permanency planning meeting,
including:
(A)
conducting a meeting in person or by telephone,
as mutually agreed upon by the MRA and LAR;
(B)
conducting a meeting at a time and, if
the meeting is in person, at a location that is mutually agreed upon by the
MRA and LAR;
(C)
if the LAR has a disability, providing
reasonable accommodations in accordance with the Americans with Disabilities
Act, including providing an accessible meeting location or a sign language
interpreter, if appropriate; and
(D)
providing a language interpreter, if appropriate.
(6)
The MRA must develop a permanency plan
using, as appropriate:
(A)
the Permanency Planning Instrument for
Children Under 18 Years of Age; or
(B)
the Permanency Planning Instrument for
Individuals 18-22 Years of Age.
(7)
The MRA must:
(A)
complete the Permanency Planning Review
Screen in CARE before an applicant is admitted to a facility unless the MRA
is not given prior notice of the admission;
(B)
keep a copy of the Permanency Planning
Review Approval Status View Screen from CARE in the applicant's record; and
(C)
provide a copy of the permanency plan to
the program provider, the applicant, and the LAR.
[
[
[
[
[
[
[
[
[
[
(g)
[
(1)
select a person who is not employed by or under contract
with the MRA or a program provider; or
(2)
request the MRA to designate a volunteer advocate.
(h)
[
(1)
an adult relative who is actively involved with the applicant;
(2)
a person who:
(A)
is part of the applicant's natural support network; and
(B)
is not employed by or under contract with the MRA or a
program provider; or
(3)
a person or a child advocacy organization representative
who:
(A)
is knowledgeable about community services and supports;
(B)
is familiar with the permanency planning philosophy and
processes; and
(C)
is not employed by or under contract with the MRA or a
program provider.
(i)
[
(j)
[
(k)
[
(1)
If an applicant does not have a current LOC [
(2)
If the program provider submits an MR/RC Assessment,
DADS notifies
[
(l)
[
(1)
DADS
[
(2)
the Social Security Administration has determined that
the applicant is eligible for SSI or
the Health and Human Services Commission
[
(3)
the program provider has electronically submitted a completed
Client Movement Form to
DADS
[
(4)
admission to the facility has been approved by the
DADS
[
(m)
[
§9.250.Permanency Planning Reviews.
An MRA must, within six months after the initial permanency planning
meeting and every six months thereafter until an individual either turns 22
years of age or leaves the facility to live in a family setting:
(1)
provide written notice to the LAR of a meeting to conduct
a review of the individual's permanency plan no later than 21 days before
the meeting date and include a request for a response from the LAR;
(2)
convene a meeting to review the individual's permanency
plan in accordance with §9.244(f)(2) - (5) of this subchapter (relating
to Applicant Enrollment in the ICF/MR Program), with an emphasis on changes
or additional information gathered since the last permanency plan was developed;
(3)
develop a permanency plan in accordance with §9.244(f)(6)
of this subchapter;
(4)
perform actions regarding a volunteer advocate as described
in §9.244(g) - (i) of this subchapter;
(5)
complete the Permanency Planning Review Screen in CARE
within 10 days after the meeting;
(6)
ensure that approval for the individual to continue to
reside in the facility is obtained every six months from the DADS commissioner
and the Health and Human Services Commission executive commissioner;
(7)
keep a copy of the Permanency Planning Review Approval
Status View Screen from CARE in the individual's record; and
(8)
provide a copy of the permanency plan to the program provider,
the individual, and the LAR.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State on May 19, 2006.
TRD-200602832
Marianne Reat
Interim General Counsel
Department of Aging and Disability Services
Earliest possible date of adoption: July 2, 2006
For further information, please call: (512) 438-3734
40 TAC §§17.101, 17.103, 17.105
The Health and Human Services Commission (HHSC) proposes,
on behalf of the Department of Aging and Disability Services (DADS), new Chapter
17, consisting of §§17.101, 17.103, and 17.105, Pilot Program for
Monitoring Certain Unlicensed Long-Term Care Facilities.
Background and Purpose
The purpose of the new chapter is to establish rules governing a pilot
program to use local task forces to identify and monitor certain long-term
care facilities. Section 2.20 of Senate Bill (SB) 6, 79th Legislature, Regular
Session, 2005, required the executive commissioner of HHSC to adopt rules
that develop and implement a pilot program to monitor certain unlicensed long-term
care facilities. The pilot program uses local task forces composed of health
care providers, representatives from governmental entities, and local government
officials to (1) identify and report to DADS or local law enforcement agencies
a long-term care facility that is not providing disclosures required by state
law or that is operating without a license, and (2) assist a long-term care
facility, whenever possible, to obtain the appropriate license or make the
appropriate disclosure.
DADS asks local government officials to participate in the pilot program.
Local officials who choose to participate in the pilot program create the
local task force. DADS Regulatory Services administers the pilot program.
DADS designates staff to work with each local task force.
DADS provides no funding to the local task force.
Section-by-Section Summary
Proposed new §17.101 defines "long-term care facility" as a nursing
facility, an assisted living facility, or an intermediate care facility for
persons with mental retardation as defined by Texas Health and Safety Code, §531.002.
Proposed new §17.103 defines a local task force, describes how DADS
administers the pilot program, and states that DADS provides no funding to
the local task force.
Proposed new §17.105 describes how local officials who choose to participate
in the pilot program create the local task force, who makes up the local task
force, and the roles and responsibilities of the local task force.
Fiscal Note
Gordon Taylor, DADS Chief Financial Officer, has determined that, for the
first five years the proposed new chapter is in effect, enforcing or administering
the new chapter does not have foreseeable implications relating to costs or
revenues of state or local governments.
Small Business and Micro-business Impact Analysis
DADS has determined that there is no adverse economic effect on small businesses
or micro-businesses or on businesses of any size as a result of enforcing
or administering the new chapter, because the pilot program will identify
and assist people and facilities who are currently unlicensed or otherwise
in violation of applicable state or local law to obtain the appropriate licenses
and comply with applicable regulatory requirements.
Public Benefit and Costs
Veronda Durden, DADS Assistant Commissioner for Regulatory Services, has
determined that, for each year of the first five years the new chapter is
in effect, the public benefit expected as a result of enforcing the new chapter
is the taking of proactive measures to ensure that a long-term care facility
providing personal care, health-related services, or other care to elderly
or disabled persons complies with required state licensing rules for operating
a long term-care facility.
Ms. Durden anticipates that there will not be an economic cost to persons
who are required to comply with the new chapter. The new chapter will not
affect a local economy.
Takings Impact Assessment
DADS has determined that this proposal does not restrict or limit an owner's
right to his or her property that would otherwise exist in the absence of
government action and, therefore, does not constitute a taking under Texas
Government Code, §2007.043.
Public Comment
Questions about the content of this proposal may be directed to Jennifer
Clay at (512) 438-3529 in DADS' Regulatory Services section. Written comments
on the proposal may be submitted to Texas Register Liaison, Legal Services-018,
Department of Aging and Disability Services W-615, P.O. Box 149030, Austin,
Texas 78714-9030, within 30 days of publication in the
Texas Register
.
The new chapter is proposed under Texas Government Code, §531.0055,
which provides that the HHSC executive commissioner shall adopt rules for
the operation and provision of services by the health and human services agencies,
including DADS; and Texas Human Resources Code, §161.021, which provides
that the Aging and Disability Services Council shall study and make recommendations
to the HHSC executive commissioner and the DADS commissioner regarding rules
governing the delivery of services to persons who are served or regulated
by DADS.
The new chapter implements Texas Government Code, §531.0055, and Texas
Human Resources Code, §161.021.
§17.101.Purpose.
This chapter establishes a pilot program to use local task forces to
identify and monitor certain long-term care facilities. In this chapter "long-term
care facility" means:
(1)
a nursing facility as defined in Texas Health and Safety
Code, Chapter 242;
(2)
an assisted living facility as defined in Texas Health
and Safety Code, §247.002; or
(3)
an intermediate care facility for persons with mental retardation
as defined by Texas Health and Safety Code, §531.002.
§17.103.Department of Aging and Disability Services Responsibilities.
(a)
The Department of Aging and Disability Services (DADS)
administers the pilot program through an existing program that works with
local officials to create task forces. The pilot program ends on September
1, 2007, unless extended by law. When the pilot program ends, DADS may choose
to continue a local task force.
(b)
DADS Regulatory Services administers the pilot program.
All coordination with DADS is through the state office or regional DADS Regulatory
Services staff. DADS designates staff to work with each local task force.
DADS asks local government officials to participate in the pilot program.
(c)
DADS provides no funding to the local task force.
§17.105.Local Officials and Task Force Responsibilities.
(a)
Local officials who choose to participate in the pilot
program create a local task force. To the extent possible, local officials
include health care providers, representatives from governmental entities,
and local government officials. The local task force designates contact persons
to work with Department of Aging and Disability (DADS) Regulatory Services.
(b)
The local task force coordinates efforts and resources
to:
(1)
identify and report to DADS or local law enforcement agencies:
(A)
a long-term facility operating without a license; or
(B)
a long-term care facility that is not providing disclosures
required by state law; and
(2)
assist a long-term care facility, whenever possible, to
obtain the appropriate license or make the appropriate disclosure.
(c)
The local task force cooperates with DADS to provide any
information necessary for reports required by the Texas Health and Human Services
Commission.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on May 19, 2006.
TRD-200602844
Marianne Reat
Interim General Counsel
Department of Aging and Disability Services
Earliest possible date of adoption: July 2, 2006
For further information, please call: (512) 438-3734
Subchapter I. RESIDENT ASSESSMENT
The department's Client Assignment and Registration System, an
on-line data entry system that provides demographic and other data about individuals
served by the department.
]
the department
].
(6)
] Consensus--A negotiated agreement
that all parties can and will support in implementation. The negotiation process
involves the open discussion of ideas with all parties encouraged to express
opinions.
(7)
] Dangerous behavior--Behavior
exhibited by an individual who is physically aggressive, self-injurious, sexually
aggressive, or seriously disruptive and requires a written behavioral intervention
plan to prevent or reduce serious physical injury to the individual or others.
(8)
] Department--[
The Texas
] Department of
Aging and Disability Services
[
Mental
Health and Mental Retardation
].
(9)
] Designated MRA--The MRA assigned
to an individual in CARE.
(10)
] Discharge--The release by
DADS
[
the department
] of an individual voluntarily admitted
or committed by court order for residential mental retardation services from
the custody and care of a state MR facility and termination of the individual's
assignment to the state MR facility in CARE.
(11)
] Emergency admission/discharge
agreement--A written agreement between the state MR facility, the individual
or LAR, and the designated MRA, sample copies of which are available from
the Department of Aging and Disability Services, Provider Services Division,
State Mental Retardation Facilities
Section, P.O. Box 149030,
Mail Code W-511, Austin, Texas 78714-9030
[
, Texas Department of
Mental Health and Mental Retardation, P.O. Box 12668, Austin, Texas 78711
], that describes [
the
]:
(12)
] Facility of record--The facility
that serves the local service area(s) assigned to the individual's designated
MRA.
(13)
]
Family-based alternative
[
Family-Based Alternative
]--A family setting in which the
family provider or providers are specially trained to provide support and
in-home care for children with disabilities or children who are medically
fragile.
(14)
] Head of the facility--The
superintendent
or director of a state MR facility
[
of a state
school or the director of a state center
].
(15)
] ICAP [
(Inventory for
Client and Agency Planning)
] service level--A designation
that
[
which
] identifies the level of services needed by an individual
as determined by the ICAP [
assessment instrument
]. [
(For information
on how to obtain a copy of the ICAP assessment instrument contact TDMHMR,
Office of Medicaid Administration, P.O. Box 12668, Austin, Texas 78711-2668.)
]
(17)
]
IDT (
Interdisciplinary
team
)
[
(IDT)
]--Mental retardation professionals and
paraprofessionals and other concerned persons, as appropriate, who assess
an individual's treatment, training, and habilitation needs and make recommendations
for services, including recommendations of whether the individual is best
served in a facility or in a community setting.
(18)
] Interstate transfer--The
admission of an individual to a state MR facility directly from a similar
facility in another state.
(19)
] IQ (intelligence quotient)--A
score reflecting the level of an individual's intelligence as determined by
the administration of a standardized intelligence test.
(20)
] LAR (legally authorized representative)--A
person authorized by law to act on behalf of
an individual
[
a person
] 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.
(21)
] Legally adequate consent--Consent
given by a person when each of the following conditions has been met:
(22)
] Less restrictive setting--A
setting which allows the greatest opportunity for the individual to be integrated
into the community.
(23)
] Local service area--A geographic
area composed of one or more Texas counties delimiting the population which
may receive services from a local MRA.
(24)
] 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.
(25)
] Minor--An individual under
the age of 18.
(26)
] MRA (mental retardation authority)--
An entity to which the Health and Human Services Commission's authority and
responsibility described in THSC, §531.002(11) has been delegated.
[
As defined in THSC, §531.002, an entity to which the Texas Mental Health
and Mental Retardation 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 to persons in one or more local service areas.
]
(27)
] Natural support network--Those
persons, including family members, church members, neighbors, and friends,
who assist and sustain an individual with supports that occur naturally within
the individual's environment and that are not reimbursed or purposely developed
by a person or system.
(28)
] Ombudsman--Consistent with
THSC, §533.039, an employee
of DADS
[
in the department's
Central Office
] who is responsible for assisting an individual or LAR
if the
[
of an
] individual
is
[
who has been
] denied
a
service by
DADS
[
the department
], a
DADS
[
department
] program or facility, or
an MRA. The ombudsman must explain and provide information on
DADS
[
department
] and MRA services, facilities, and programs, and the rules,
procedures, and guidelines applicable to the individual denied services, and
assist the individual in gaining access to an appropriate program or in placing
the individual on an appropriate waiting list. [
The director of the Office
of Consumer Services and Rights Protection/Ombudsman is the department's ombudsman
and can be contacted by calling 1-800-252-8154.
]
(29)
] 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.
(30)
] Planning team--A group organized
by the MRA and composed of:
(31)
] PMRA--Persons with Mental
Retardation Act, Texas Health and Safety Code, Title 7, Subtitle D.
(32)
] Provider--A public or private
entity that delivers community-based residential services and supports for
individuals, including, but not limited to, an intermediate care facility
for individuals with mental retardation (ICF/MR) or a nursing facility. The
term also includes a public or private entity that provides waiver services.
(33)
] Related services--Services
for school eligible individuals as described in 19 TAC §89.1060 (relating
to Definitions of Certain Related Services).
(34)
] Respite admission/discharge
agreement--A written agreement between the state MR facility, the individual
or LAR, and MRA, sample copies of which are available from
the Department
of Aging and Disability Services, Provider Services Division,
State
Mental Retardation Facilities
Section, P.O. Box 149030, Mail Code W-511,
Austin, Texas 78714-9030
[
, Texas Department of Mental Health and
Mental Retardation, P.O. Box 12668, Austin, Texas 78711
], that describes:
(35)
] School eligible--A term describing
those individuals between the ages of three and 22 who are eligible for public
education services.
(36)
] Service delivery system--All
facility and community-based services and supports operated or contracted
for by
DADS
[
the department
].
(37)
] Services and supports--Programs
and assistance for persons with mental retardation that may include a determination
of mental retardation, interdisciplinary team recommendations, education,
special training, supervision, care, treatment, rehabilitation, residential
care, and counseling, but does not include those services or programs that
have been explicitly delegated by law to other state agencies.
(38)
] Significantly 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.
(39)
] State MH facility (state
mental health facility)--A state hospital.
(40)
] State MR facility (state
mental retardation facility)--A state school or a state center with a mental
retardation residential component.
(41)
] THSC--Texas Health and Safety
Code.
(42)
] Waiver services--Home and
community-based services provided through a Medicaid waiver program approved
by Centers for Medicare and Medicaid Services (CMS)[
, formerly Health
Care Financing Administration (HCFA),
] as described in §1915(c)
of the Social Security Act. [
Medicaid waiver programs operated by the
department include Home and Community-based Services (HCS) Program, Home and
Community-based Waiver Services-OBRA (HCS-O) Program, and Mental Retardation
Local Authority (MRLA) Program. Other waiver programs for which an individual
applying to an MRA for services and supports might be eligible that are operated
by other state agencies include Community Living and Support Services (CLASS);
the Deaf-Blind Multiple Disability Waiver programs; the Medically Dependent
Children Program; and the Community-Based Alternatives Waiver.
]
2.
ADMISSION AND COMMITMENT
(a)
]
The IDT at an MRA must do the following in
making a report of its findings and recommendations as described in
§2.255(a)(5)
[
§412.255(a)(5)
] and (b)(1)(B) of
this
subchapter
[
title
] (relating to Criteria for Commitment
and Regular Voluntary Admission of an Adult to a State MR Facility Under the
PMRA),
§2.256(b)(3)(E)
[
§412.256(b)(3)(E)
],
(c)(3)(E), (e)(3)(E), and (f)(3)(E) of this
subchapter
[
title
] (relating to Criteria for Commitment of an Adult under the Texas
Code of Criminal Procedure), and
§2.257(a)(5)
[
§412.257(a)(5)
] of this
subchapter
[
title
] (relating to Criteria
for Commitment of a Minor to a State MR Facility Under the PMRA):
the
] individual under 22 years of age,
the individual's
[
include
] permanency planning [
as a
] goal;
serving the local
service area in which the individual lives or, in the case of an interstate
transfer, the MRA serving the local service area in which the individual's
LAR or family lives or intends to live
] must provide an oral and written
explanation as described in
§5.159(c)
[
§415.159(c)
] of this title (relating to Assessment of Individual's Need for Services
and Supports).
§412.255
] of
this
subchapter
[
title
] (relating to Criteria for Commitment
and Regular Voluntary Admission of an Adult to a State MR Facility Under the
PMRA) or
§2.257
[
§412.257
] of this
subchapter
[
title
] (relating to Criteria for Commitment of a Minor
to a State MR Facility Under the PMRA), the MRA will:
department's
] interstate compact
coordinator
at the Health and Human Services Commission
, if the
applicant is requesting an interstate transfer;
§401.464
] of this
chapter
[
title
] (relating
to Notification and Appeals Process); or
department's
] interstate compact coordinator in writing
of the determination.
the department's
] ombudsman may be made in writing to
the Department of Aging and
Disability Services, Consumer Rights and Services Division, P.O. Box 149030,
Mail Code E-249, Austin, Texas 78714-9030
[
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
1-800-458-9858
[
1-800-252-8154
].
the department's
] ombudsman will review relevant documentation provided
by the applicant and LAR, the IDT, and the MRA, and determine whether the
processes described in this subchapter were followed.
§412.261
] of this
subchapter
[
title
] (relating to Criteria for Emergency Admission
of an Adult or a Minor to a State MR Facility Under the PMRA) or
§2.262
[
§412.262
] of this
subchapter
[
title
] (relating to Criteria for Admission of an Adult or a Minor to a State
MR Facility for Respite Care Under the PMRA), the MRA will:
§419.244(e)
] of
this title (relating to Applicant Enrollment
in the ICF/MR Program
),
if appropriate.
Office of
] State Mental Retardation
Facilities
Section, P.O. Box 149030, Mail Code W-511, Austin, Texas 78714-
9030
[
, Texas Department of Mental Health and Mental Retardation,
P.O. Box 12668, Austin, Texas 78711-2668
]);
§415.155(g)
] of this title (relating to Determination of Mental Retardation (DMR));
§412.264(a)
] of this
subchapter
[
title
] (relating to MRA IDT Recommendation Concerning the Commitment
of an Adult or a Minor or the Regular Voluntary Admission of an Adult to a
State MR Facility Under the PMRA) recommending the commitment or regular voluntary
admission of the applicant to a state MR facility;
§412.257(c)
] of this
subchapter
[
title (relating to Criteria for
Commitment of a Minor to a State MR Facility Under the PMRA)
];
§412.264(b) of this title
]; and
Office of
] State Mental Retardation
Facilities
Section, P.O. Box 149030, Mail Code W-511, Austin, Texas 78714-
9030
[
, Texas Department of Mental Health and Mental Retardation,
P.O. Box 12668, Austin, Texas 78711-2668
]);
§412.257(c)
] of this
subchapter
[
title
];
§412.264(b)
] of this
subchapter
[
title
];
the department
]:
§415.155(g)
] of this title, if requested by
DADS
[
the department
]; and
Office of
] State Mental Retardation
Facilities
Section, P.O. Box 149030, Mail Code W-511, Austin, Texas 78714-
9030
[
, Texas Department of Mental Health and Mental Retardation,
P.O. Box 12668, Austin, Texas 78711-2668
]);
the department
]:
§415.155(g)
] of this title, if requested by
DADS
[
the department
]; and
§412.265(g)
] of this
subchapter
[
title
] (relating to MRA Referral of an Applicant
to a State MR Facility) and send the original application packet to the admission
coordinator of the state MR facility.
The department
] will determine
when a vacancy exists in a state MR facility and which individuals are appropriate
to fill the vacancy, based on the information in the application packets.
the department
] that an appropriate vacancy in a state MR facility is available, the
MRA will contact the LAR or family of each individual identified by
DADS
[
the department
] as appropriate to fill the vacancy
and will:
the
department
] as appropriate to fill the vacancy and who the MRA has determined
would accept the proposed admission to the state MR facility.
§419.244
]
of this title (relating to Applicant Enrollment
in the ICF/MR Program
), if appropriate.
§412.265(g)
] of this
subchapter
[
title
] (relating
to MRA referral of an Applicant to a State MR Facility) and send the original
application packet to the admission coordinator of the state MR facility.
The department
] will determine
when a vacancy exists in a state MR facility and which individuals are appropriate
to fill the vacancy, based on the information in the application packets.
the department
] that an appropriate vacancy in a state MR facility is available, the
MRA will contact each individual identified by
DADS
[
the department
] as appropriate to fill the vacancy and will:
the department
] as appropriate
to fill the vacancy and who the MRA has determined would accept the proposed
admission to the state MR facility.
§419.244
]
of this title (relating to Applicant Enrollment
in the ICF/MR Program
), if appropriate.
the department
] is notified
by a juvenile court that a placement order for a minor has been issued under
Texas Family Code, §55.33 or §55.52,
DADS
[
the department
] will notify the appropriate MRA of the placement order.
IPP
] for
the minor. [
In accordance with §419.222 of this title (relating
to Permanency Planning for Individuals Under 22 Years of Age), the IPP will
be developed using permanency planning.
]
§412.257
] of this
subchapter
[
title
] (relating to Criteria for Commitment of a Minor
to a State MR Facility Under the PMRA).
§412.257
] of this
subchapter
[
title
], the state MR facility will submit an affidavit to the court stating
the conclusions reached as a result of the diagnosis.
is mentally retarded
]; and
is mentally retarded
], states whether the minor
meets the commitment criteria described in
§2.257
[
§412.257
] of this
subchapter
[
title
].
is mentally retarded
] and meets the
commitment criteria described in
§2.257
[
§412.257
] of this
subchapter
[
title
], the state MR facility
will submit an affidavit to the court stating the conclusions reached as a
result of the diagnosis.
§412.261
]
of this
subchapter
[
title
] (relating to Criteria for
Emergency Admission of an Adult or a Minor to a State MR Facility Under the
PMRA), the MRA must retain a copy of the application packet, as described
in
§2.265(h)
[
§412.265(h)
] of this
subchapter
[
title
] (relating to MRA Referral of an Applicant to a State
MR Facility) and send the original application packet to the admission coordinator
of the state MR facility.
The department
] will determine
when a vacancy exists in a state MR facility and which individuals are appropriate
to fill the vacancy, based on the information in the application packets.
the department
] that an appropriate vacancy in a state MR facility is available, the
MRA will contact each individual identified by
DADS
[
the department
] as appropriate to fill the vacancy and will:
the department
] as appropriate to fill the vacancy and who the MRA has determined
would accept the proposed emergency admission to the state MR facility.
department's Office of
] State Mental Retardation Facilities
Section, P.O. Box 149030, Mail Code W-511, Austin, Texas 78714-9030
[
, P.O. Box 12668, Austin, Texas 78711-2668
]; and
be developed using permanency
planning, as described in §419.222 of this title (relating to Permanency
Planning for Individuals Under 22 Years of Age)
] and [
must
]
specify that the individual is to be admitted for no longer than six months
to receive emergency services in the state MR facility.
§415.155
] of this title (relating to Determination
of Mental Retardation (DMR)); and
required
]
for an MRA IDT [
as described
] in
§2.264
[
§412.264(a)
] of this
subchapter
[
title
] (relating
to MRA IDT Recommendation Concerning the Commitment of an Adult or a Minor
or the Regular Voluntary Admission of an Adult to a State MR Facility Under
the PMRA).
the department
] determines
that the terms of the Emergency Admission/Discharge Agreement cannot be met,
the MRA may initiate commitment proceedings under the PMRA.
4.
MOVING FROM A STATE MR FACILITY TO AN ALTERNATIVE LIVING ARRANGEMENT
are available on the department's website
at www.mhmr.state.tx.us or by contacting the Office of State Mental Retardation
Facilities, Texas Department of Mental Health and Mental Retardation, P.O.
Box 12668, Austin, Texas 78711
]. At the conclusion of a meeting during
which living options have been discussed, the individual's IDT will document
the:
goals
] for an individual under 22 years of age
has been accomplished
[
have been met
].
(c)
] The state MR facility will
ensure that the individual and LAR receive adequate notice of a meeting at
which the state MR facility anticipates that living options are likely to
be discussed.
(f)
] The designated MRA shall ensure
that the state MR facility has the information about alternative living arrangements
and community services and supports needed to assist the IDT in making a recommendation
described in subsection (a)(4) of this section.
(g)
] Communication devices and techniques
(including the use of sign language) will be utilized, as appropriate, to
facilitate the involvement of the individual and the LAR during the meeting.
(h)
] If the individual or the individual's
LAR expresses an interest in an alternative living arrangement during a meeting
or at any other time, the state MR facility will ensure that the individual
or LAR is informed of the range of alternative living arrangements, including
community-based ICF/MR programs, waiver services, those services and supports
provided or contracted by an MRA, and any other services that may be appropriate.
(i)
] An individual with the ability
to provide legally adequate consent or the LAR may choose for the individual
to remain a resident of a state MR facility if the individual has been determined
to have mental retardation in accordance with
§5.155
[
§415.155
] of this title (relating to Determination of Mental Retardation
(DMR)).
7.
REFERENCES AND DISTRIBUTION
7.
PERMANENCY PLANNING AND LAR NOTIFICATION REQUIREMENTS FOR AN INDIVIDUAL UNDER 22 YEARS OF AGE
Chapter 9.
MENTAL RETARDATION SERVICES--MEDICAID STATE OPERATING AGENCY RESPONSIBILITIES
shall
] have the following meanings, unless the context clearly indicates
otherwise:
TDHS
] and depends
on the individual's earned and unearned income.
The department's Client Assignment and Registration System, an
on-line data entry system that provides demographic and other data about individuals
served by the department.
]
The
role and responsibilities of the involved agencies, including MRAs, school
districts, and providers, are described in §411.56 of this title (relating
to Memorandum of Understanding (MOU) on Coordinated Services to Children and
Youths).
]
(14)
] Day--Calendar day, unless
otherwise specified.
(15)
] Department--[
The Texas
] Department of
Aging and Disability Services
[
Mental
Health and Mental Retardation
].
(16)
] Discharge--The absence,
for a full day or more, of an individual from the facility in which the individual
resides, if such absence is not during a therapeutic, extended, or special
leave, as described in
§9.226
[
§419.226
] of
this
subchapter
[
title
] (relating to Leaves).
(17)
] DPoC (directed plan of correction)--A
plan developed by
DADS'
[
the department's
] sanction
team that requires a program provider to take specified actions within specified
time frames to correct the program provider's failure to meet one or more
federal standards of participation (SoPs) or conditions of participation (CoPs)
or lack of compliance with one or more state rules.
(18)
] Excluded--Temporarily or
permanently prohibited by a state or federal authority from participating
as a provider in a federal health care program, as defined in
42 USC §1302a-7b(f)
[
42 USC§1302a-7b(f)
].
(19)
] Facility--An intermediate
care facility for persons with mental retardation or a related condition.
(20)
] Family-based alternative--A
family setting in which the family provider or providers are specially trained
to provide support and in-home care for children with disabilities or children
who are medically fragile.
(21)
] Full day--A 24-hour period
extending from midnight to midnight.
(22)
HCFA (Health Care Financing Administration)--The
federal agency that administers Medicaid programs.
]
(23)
] Hospice--An entity that
is primarily engaged in providing care to terminally ill individuals and is
approved by
DADS
[
TDHS
] to participate in the Medicaid
Hospice Program in accordance with
§30.30 of this title (relating
to General Contracting Requirements)
[
40 TAC §30.30 (relating
to Requirements for Participation as a Medicaid Hospice Provider)
].
(24)
] 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 an individual needs.
(25)
] 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.
(26)
] IDT (interdisciplinary team)--A
group of people assembled by the program provider who possess the knowledge,
skills, and expertise to assess an individual's needs and make recommendations
for the individual's IPP. The group includes the individual, LAR, mental retardation
professionals and paraprofessionals and, with approval from the individual
or LAR, other concerned persons.
(27)
] IPP (individual program
plan)--A plan developed by an individual's IDT that identifies the individual's
training, treatment, and habilitation needs and describes services to meet
those needs.
(28)
] Individual--A person enrolled
in the ICF/MR Program.
(29)
] IQ (intelligence quotient)--A
score reflecting the level of an individual's intelligence as determined by
the administration of a standardized intelligence test.
(30)
] 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, managing conservator of a minor individual, a guardian of an adult
individual, or legal representative of a deceased individual.
(31)
] LOC (level of care)--A determination
given by
DADS
[
the department
] to an individual as part
of the eligibility process based on data submitted on the MR/RC Assessment.
(32)
] LON (level of need)--An
assignment given by
DADS
[
the department
] to an individual
upon which reimbursement for ICF/MR
Program
[
program
]
services is based. The LON assignment is derived from the service level score
obtained from the administration of the
ICAP
[
Inventory for
Client and Agency Planning (ICAP)
] to the individual and from selected
items on the MR/RC Assessment.
(33)
] Long Term Care Plan for
People with Mental Retardation and Related Conditions--The plan required by
THSC, §533.062, which is developed by
DADS
[
the department
] and specifies, in part, the capacity of the ICF/MR Program in Texas.
(34)
] MRA (mental retardation
authority)--
An entity to which the Health and Human Services Commission's
authority and responsibility described in THSC, §531.002(11) has been
delegated.
[
Consistent with THSC, §533.035, an entity designated
by the commissioner to which the Texas Mental Health and Mental Retardation
Board delegates its authority and responsibility for planning, policy development,
coordination, and resource allocation, and resource development for and oversight
of services and supports in one or more local service areas.
]
(35)
] Mental retardation--Significantly
subaverage general intellectual functioning existing concurrently with deficits
in adaptive behavior and manifested during the developmental period.
(36)
] Natural support network--Those
persons, including family members, church members, neighbors, and friends,
who assist and sustain an individual with supports that occur naturally within
the individual's environment and that are not reimbursed or purposely developed
by a person or system.
(37)
] NHIC--
Formerly, this
term referred to the
National Heritage Insurance Company
; it now
refers to the Texas Medicaid and Health Partnership
.
(38)
] Non-state operated facility--A
facility for which the program provider is an entity other than
DADS,
[
the department
] such as a community MHMR center or private
organization.
(39)
] PDP (person-directed plan)--A
plan of services and supports developed under the direction of an individual
or LAR with the support of MRA or program provider staff and other people
chosen by the individual or LAR.
(40)
] 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.
(41)
] Permanency Planning Review
Screen--A screen in CARE that, when completed by an MRA [
or program provider
], identifies community supports needed to achieve an individual's permanency
planning outcomes and provides information necessary for approval of the individual's
initial and continued residence in a facility.
(42)
] Personal funds--The funds
that belong to an individual, including earned income, social security benefits,
gifts, and inheritances.
(43)
] Petty cash fund--Personal
funds managed by a program provider that are maintained for individuals' cash
expenditures.
(44)
] Pooled account--A trust
fund account containing the personal funds of more than one individual.
(45)
] Professional--A person who
is licensed or certified by the State of Texas in a health or human services
occupation or who meets
DADS'
[
department
] criteria
to be a case manager, service coordinator, qualified mental retardation professional,
or TDMHMR-certified psychologist as defined in
§5.161
[
§415.161
] of this title (relating to TDMHMR-certified psychologist).
(46)
] Program provider--An entity
with whom
DADS
[
the department
] has a provider agreement.
(47)
] Provider agreement--A written
agreement between
DADS
[
the department
] and a program
provider that obligates the program provider to deliver ICF/MR Program services.
(48)
] Provider applicant--An entity
seeking to participate as a program provider.
(49)
] Related condition--As defined
in the Code of Federal Regulations (CFR), Title 42, §435.1009, a severe
and chronic disability that:
(50)
] Sales receipt--A written
statement issued by the seller that includes:
(51)
] Sanction team--A group of
professionals assembled and employed by
DADS
[
the department
] that is overseen by the Health and Human Services Commission to ensure
consistency in its determinations.
(52)
] Separate account--A trust
fund account containing the personal funds of only one individual.
(53)
] Specially constituted committee--The
committee designated by the program provider in accordance with 42 CFR §483.440(f)(3)
that consists of staff, LARs, individuals (as appropriate), qualified persons
who have experience or training in contemporary practices to change an individual's
inappropriate behavior, and persons with no ownership or controlling interest
in the facility. The committee is responsible, in part, for reviewing, approving,
and monitoring individual programs designed to manage inappropriate behavior
and other programs that, in the opinion of the committee, involve risks to
individuals' safety and rights.
(54)
] State-operated facility--A
facility for which
DADS
[
the department
] is the program
provider.
(55)
] TAC (Texas Administrative
Code)--A compilation of state agency rules published by the Texas Secretary
of State in accordance with Texas Government Code, Chapter 2002, Subchapter
C.
(56)
] TDHS--
Formerly, this
term referred to the
Texas Department of Human Services
; it now
refers to DADS, unless the context concerns Medicaid eligibility. Medicaid
eligibility was formerly the responsibility of TDHS; it now is the responsibility
of the Health and Human Services Commission
.
(57)
] THSC (Texas Health and Safety
Code)--Texas statutes relating to health and safety.
(58)
] Trust fund account--An account
at a financial institution in the program provider's control that contains
personal funds.
(59)
] Unclaimed personal funds--Personal
funds managed by the program provider that have not been transferred to the
individual or LAR within 30 days after the individual's discharge.
(60)
] Unidentified personal funds--Personal
funds managed by the program provider for which the program provider cannot
identify ownership.
(61)
] USC (United States Code)--A
compilation of statutes enacted by the United States Congress.
(62)
] Vendor hold--Temporary suspension
of ICF/MR payments from
DADS
[
the department
] to a program
provider.
(63)
] Working day--A day when
an MRA's administrative offices are open.
4.
PROVIDER SERVICE REQUIREMENTS Children ].
The
] program provider
must
[
will
]
identify in the IPP, as appropriate to the individual's needs:
the natural supports and strengths
of the family of
] an individual under 18 years of age
, the
[
that, when supplemented by
] activities
,
[
and
]
supports
, and services that, when
provided or facilitated by the
program provider or MRA, will enable the individual to
live with a family
[
return to the family home
];
or
(2)
a family-based alternative that will secure
for an individual under 18 years of age a consistent, nurturing environment
that supports a continued relationship with the individual's family to the
extent possible and, if necessary, provide an enduring, positive relationship
with a specific adult who will be an advocate for the individual; or
]
(3)
]
for
[
the natural
supports and strengths of
] an individual age 18 to 22 years of age
, the
[
that, when supplemented by
] activities
,
[
and
] supports
, and services that, when
provided or facilitated
by the program provider or MRA, will result in the individual having a consistent
and nurturing environment
in the least restrictive setting
, as
defined by the individual and LAR.
The
] program provider must take
the following actions to
assist an MRA in conducting
[
facilitate
] permanency planning
for an individual under 22 years of age
:
(1)
discuss with the individual or LAR the
problems or issues that led to the individual's admission to the program provider's
facility;
]
(2)
discuss with the family or LAR of an individual
under 18 years of age the barriers to having the individual reside in the
family home or discuss with an individual 18 to 22 years of age and LAR the
barriers to moving to a consistent and nurturing environment as determined
by the individual and LAR;
]
(3)
identify natural supports and family strengths
that will accomplish permanency planning outcomes;
]
(4)
identify, in coordination with the individual's
MRA, activities and supports that can be provided by the family, LAR, program
provider, or the MRA to prepare the individual for an alternative living arrangement;
]
(5)
] encourage regular contact
between the individual and [
the individual's
] LAR and, if desired
by the individual and LAR, between the individual and [
life-long
]
advocates and friends in the community to continue supportive and nurturing
relationships;
(6)
] encourage participation in
IDT meetings by the [
individual's
] LAR, and, if desired by the
individual or LAR, by family members, [
life-long
] advocates, and
friends in the community; [
and
]
(7)
] provide the IPP summary to
the individual's MRA
;
[
.
]
of
] the
admission of an individual under 22 years of age,
a
[
the
]
program provider must notify the following entities of such admission and
provide information in accordance with subsection (d) of this section:
http://www.mhmr.state.tx.us/CentralOffice/PublicInformationOffice/DirectoryOfServicesWHAT.ht
ml
] for a listing of MRAs by
county or
city);
community resource coordination
group (CRCG)
] for the county in which the
LAR
[
applicant's
parent or guardian
] lives (see www.hhsc.state.tx.us/crcg/crcg.htm for
a listing of CRCG chairpersons by county); and
www.eci.state.tx.us
] or call 1-800-250-2246 for a listing
of ECI programs by county)
.
[
;
]
(e)
The program provider must inform the individual
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 program provider; or
]
(2)
request the program provider to designate
a volunteer advocate.
]
(f)
If an individual or LAR requests that
the program provider designate a volunteer advocate or the program provider
cannot locate the individual's LAR, the program provider 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:
]
(A)
is part of the individual's natural support
network; and
]
(B)
is not employed by or under contract with
the program provider; or
]
(3)
a person or a child advocacy organization
representative who:
]
(A)
is knowledgeable about community services
and supports;
]
(B)
is familiar with the permanency planning
philosophy and processes; and
]
(C)
is not employed by or under contract with
program provider.
]
(g)
If the program provider is unable to locate
a volunteer advocate locally, the program provider 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 the program
provider in identifying a volunteer advocate, the program provider must document
all efforts to designate a volunteer advocate in accordance with subsection
(f) of this section.
]
(h)
For an individual under 22 years of age,
the individual's residence in a facility is temporary and must be approved
every six months. If the individual's IDT determines that an individual's
permanency planning outcomes have not been met, the program provider must:
]
(1)
no later than five months after an individual
under 22 years of age is admitted to the facility, submit a Permanency Planning
Review to the department and obtain approval for continued residence from
the department commissioner or designee; and
]
(2)
every six months thereafter, submit a
Permanency Planning Review to the department and obtain approval for continued
residence from the commissioner of the Health and Human Services Commission
or designee to extend an individual's residence in the facility.
]
(i)
]
A
[
The
]
program provider must document compliance with the requirements of this section
in the individual's record.
5.
ELIGIBILITY, ENROLLMENT AND REVIEW
the
department
].
the department
] if the applicant:
prior to
] the enrollment
request; and
the applicant's
] LAR notifies the MRA in writing that admission to the
program provider's facility has been offered to the applicant; and
§415.159(c)
] of this title (relating to Assessment of Individual's
Need for Services and Supports) including providing an explanation to the
applicant or LAR of the services
and
supports for which the applicant
may be eligible.
For an applicant under 22 years of age, an MRA must
also comply with the following requirements:
; and
]
(4)
if the applicant is under 22 years of
age, complete a Permanency Planning Review Screen and electronically submit
the information from that screen to the department.
]
(f)
The MRA must incorporate permanency planning
as an integral part of the initial plan for services and supports developed
in accordance with §415.159(b) of this title (relating to Assessment
of Individual's Need for Services and Supports) for the applicant under 22
years of age. The MRA will identify in the initial plan for services and supports,
as appropriate to the individual's needs:
]
(1)
the natural supports and strengths of
the family of an individual under 18 years of age that, when supplemented
by activities and supports provided or facilitated by the MRA, will enable
the individual to return to the family home;
]
(2)
a family-based alternative that will secure
for an applicant under 18 years of age a consistent, nurturing environment
that supports a continued relationship with the applicant's family to the
extent possible and, if necessary, provide an enduring, positive relationship
with a specific adult who will be an advocate for the individual; or
]
(3)
the natural supports and strengths of
an applicant from 18 to 22 years of age that, when supplemented by activities
and supports provided or facilitated by the MRA, will result in the applicant
having a consistent and nurturing environment, as defined by the applicant
and LAR.
]
(g)
The MRA must take the following actions
to facilitate permanency planning:
]
(1)
discuss with the applicant or LAR the
problems or issues that led applicant or LAR to request enrollment in the
ICF/MR Program;
]
(2)
discuss with the family or LAR of an applicant
under 18 years of age the barriers to having the applicant reside in the family
home or discuss with an applicant 18 to 22 years of age and LAR the barriers
to moving to a consistent and nurturing environment as determined by the applicant
and LAR;
]
(3)
in the case of an individual's imminent
move from the family home, encourage regular contact between the individual
and the individual's LAR, and, if desired by the individual and LAR, between
the individual and life-long advocates and friends in the community to continue
supportive and nurturing relationships;
]
(4)
identify natural supports and family strengths
that will accomplish permanency planning outcomes; and
]
(5)
identify activities and supports that
can be provided by the family, LAR, or MRA that will prepare the applicant
for a family-based alternative, if the applicant and LAR choose that option.
]
(h)
] If an applicant is under 22
years of age, the MRA must inform the applicant and LAR that they may request
a volunteer advocate to assist in permanency planning. The applicant or LAR
may:
(i)
] If
an
[
the
] applicant or LAR requests that the MRA designate a volunteer advocate
or the MRA cannot locate the [
applicant's
] LAR, the MRA must attempt
to designate a volunteer advocate to assist in permanency planning who is,
in order of preference:
(j)
] If the MRA is 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
(h)
[
(g)(3)
]
of this section. If the statewide advocacy organization is unable to assist
the MRA in identifying a volunteer advocate, the MRA must document all efforts
to designate a volunteer advocate in accordance with subsection
(h)
[
(g)
] of this section.
(k)
] If
DADS
[
the department
] notifies an MRA that it has authorized an applicant's
LOC, the MRA must immediately notify the applicant or LAR of such authorization
and provide the selected program provider with copies of all enrollment documentation
and associated supporting documentation including relevant assessment results
and recommendations and the applicant's ICAP booklet and, if available, the
applicant's service plan.
(l)
] To request an applicant's
enrollment
as permitted by subsection (b) of this section
, a program
provider must ensure that the applicant has a current LOC [
determination
and, if the applicant is under 22 years of age, complete and electronically
submit a Permanency Planning Review to the department
].
determination
], the program provider must complete and electronically submit an MR/RC
Assessment to
DADS
[
the department
].
the department will notify
] the program provider
electronically if the LOC is authorized or
sends
[
send
]
written notification to the program provider and the applicant or LAR if the
LOC is denied.
(m)
] An applicant's enrollment
is complete if:
the department
] has authorized
an LOC for the applicant;
TDHS
] determines the applicant is financially eligible
for Medicaid;
the department
]; and
department
] commissioner or designee for the applicant
who is under 22 years of age, based on information submitted as described
in subsection
(f)
[
(e)(4)
] of this section.
(n)
] A program provider must maintain
a paper copy of the completed MR/RC Assessment with all the necessary signatures
and documentation supporting the recommended LOC and LON [
and the Permanency
Planning Review Screen in the applicant's record
].
Chapter 17.
PILOT PROGRAM FOR MONITORING CERTAIN UNLICENSED LONG-TERM CARE FACILITIES
Chapter 19.
NURSING FACILITY REQUIREMENTS FOR LICENSURE AND MEDICAID CERTIFICATION