Part 1.
DEPARTMENT OF AGING AND DISABILITY SERVICES
Chapter 9.
MENTAL RETARDATION SERVICES--MEDICAID STATE OPERATING AGENCY RESPONSIBILITIES
Subchapter D. HOME AND COMMUNITY-BASED SERVICES (HCS) PROGRAM
40 TAC §§9.153, 9.164, 9.166 - 9.168, 9.174, 9.189
The Health and Human Services Commission (HHSC) proposes,
on behalf of the Department of Aging and Disability Services (DADS), amendments
to §9.153, concerning definitions, §9.164, concerning process for
enrollment of applicants, §9.166, concerning revisions and renewals of
individual plans of care (IPCs), levels of care (LOCs) and levels of need
(LONs) for enrolled individuals, and §9.174, concerning certification
principles: service delivery; and proposes new §9.167, concerning permanency
planning reviews, §9.168, concerning provision of supervised living or
residential support after enrollment, and §9.189, concerning referral
to DFPS, in Chapter 9, Mental Retardation Services--Medicaid State Operating
Agency Responsibilities, Subchapter D, Home and Community-based Services (HCS)
Program.
Background and Purpose
The purpose of the amendments and new sections 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. For the HCS Program, an institution is a three-bed
or four-bed group home in which an individual receives supervised living or
residential support. 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 sections are also proposed to update and clarify
permanency planning requirements.
Section-by-Section Summary
The amendment to §9.153 adds a definition for "emergency situation"
and updates the definition of "Permanency Planning Review Screen" to reflect
new permanency planning procedures.
The amendment to §9.164(c) requires an MRA to inform an LAR of an
individual under 22 years of age: (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 amendment
to §9.164(k) requires an MRA to convene a permanency planning meeting
before enrollment of an applicant under 22 years of age who is seeking supervised
living or residential support. The MRA must convene the meeting before the
applicant's enrollment into the HCS Program, 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.
The amendment to §9.166 requires the individual service plan (ISP)
for an individual under 22 years of age receiving supervised living or residential
support to include the activities, support, and services necessary to achieve
the permanency planning goal identified in §9.164. The amendment also
provides clarification about what must be included in an ISP regarding the
permanency planning goal for an individual under 22 years of age.
New §9.167 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 calendar days before the meeting date and complete
the same steps as required for the initial permanency planning meeting.
New §9.168 requires an MRA to provide an explanation of services and
other information and conduct permanency planning for an enrolled individual
who later starts receiving supervised living or residential support. The explanation
and initiation of permanency planning must begin within 14 working days after
the date the MRA learns that the individual is receiving supervised living
or residential support, unless this time period is extended by the LAR.
The amendment to §9.174(6) requires the program provider to request
from and encourage the LAR of an individual under 22 years of age 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 §9.174(8)(A) 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 §9.174(8)(D) requires a program provider to provide written notice
of an annual review meeting of the individual's ISP and request the LAR to
respond to the notice of the meeting. The program provider must assist an
MRA in conducting permanency planning for an individual under 22 years of
age, as required by SB 40, including participating 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 institutional setting or to a community setting. The amendment
to §9.174(8)(E) - (G) requires that if an emergency situation involving
the individual occurs, the program provider must respond to the situation.
The amendment requires the program provider to request that DADS initiate
a search for the LAR if the program provider is unable to locate the LAR.
The amendment to §9.174(8)(H) requires the program provider to attempt
to obtain consent from the LAR to transfer an individual to another residence.
The amendment to §9.174(8)(I) requires the program provider to document
compliance with the requirements of permanency planning in the individual's
record. The amendment to §9.174(60) deletes the program provider's requirement
to complete the Permanency Planning Review Screen as this will be required
from the MRA.
New §9.189 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 to initiate a search for the
LAR.
Fiscal Note
Gordon Taylor, DADS Chief Financial Officer, has determined that, for the
first five years the proposed amendments and new sections 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 sections are in effect is an estimated additional cost of $68,426
in fiscal year (FY) 2006; $73,747 in FY 2007; $79,066 in FY 2008; $84,385
in FY 2009; and $89,704 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 sections, 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
Barry Waller, DADS Assistant Commissioner for Provider Services, has determined
that, for each year of the first five years the amendments and new sections
are in effect, the public benefit expected as a result of enforcing the amendments
and new sections 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 sections 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 under 22 years
of age in the HCS Program.
Mr. Waller anticipates that there will be an economic cost to MRAs as explained
in the fiscal note above. The amendments and new sections 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-010, 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
.
Statutory Authority
The amendments and new sections 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 amendments and new sections affect Texas Government Code, §§531.0055,
531.021, 531.1521, and 531.166, and Texas Human Resources Code, §161.021.
§9.153.Definitions.
The following words and terms, when used in this subchapter, have the
following meanings, unless the context clearly indicates otherwise:
(1) - (9)
(No change.)
(10)
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).
(11)
[
(12)
[
(13)
[
(14)
[
(15)
[
(16)
[
(17)
[
(18)
[
(19)
[
(20)
[
(21)
[
(22)
[
(23)
[
(24)
[
(25)
[
(26)
[
(27)
[
(28)
[
(29)
[
(30)
[
(31)
[
(32)
[
(A)
identifies existing supports and services necessary to
achieve the individual's outcomes;
(B)
identifies natural supports available to the individual
and negotiates needed services system supports;
(C)
occurs with the support of a group of people chosen by
the individual (and the LAR on the individual's behalf); and
(D)
accommodates the individual's style of interaction and
preferences regarding time and setting.
(33)
[
(34)
[
(35)
[
(36)
[
(A)
A manual method, except for physical guidance or prompting
of brief duration, or a mechanical device to restrict:
(i)
the free movement or normal functioning of all or a portion
of an individual's body; or
(ii)
normal access by an individual to a portion of the individual's
body.
(B)
Physical guidance or prompting of brief duration becomes
a restraint if the individual resists the physical guidance or prompting.
(37)
[
(38)
[
(39)
[
(40)
[
(41)
[
(42)
[
§9.164.Process for Enrollment of Applicants.
(a) - (b)
(No change.)
(c)
If an applicant is offered a program vacancy in accordance
with subsection (a) or (b) of this section, the MRA
, before enrollment,
must provide the applicant, LAR, and, unless the LAR is a family member,
at least one family member (if possible) both an oral and written explanation
of the services and supports for which the applicant may be eligible, including
the ICF/MR Program (both state mental retardation facilities and community-based
facilities), other waiver programs under §1915(c) of the Social Security
Act, and other community-based services and supports.
For an applicant
under 22 years of age requesting supervised living or residential support,
an MRA must also, before enrollment, inform the applicant or LAR:
(1)
of the benefits of living in
a family or community setting;
(2)
that the placement of the applicant
is considered temporary; and
(3)
that an ongoing permanency
planning process is required.
(d) - (i)
(No change.)
(j)
If the applicant or LAR chooses participation by the individual
in the HCS Program, the MRA will assign a service coordinator who develops
a PDP in conjunction with the service planning team. At minimum, the PDP must
include the following:
(1) - (2)
(No change.)
[
[
[
[
(3)
[
(A)
are necessary:
(i)
for the applicant to live in the community;
(ii)
to ensure the applicant's health and welfare in the community;
and
(iii)
to prevent the applicant's admission to institutional
services;
(B)
do not replace natural supports or other supports and services
available from non-HCS Program sources for which the applicant may be eligible;
and
(C)
are unavailable from natural supports or from non-HCS Program
sources for which the applicant may be eligible;
(4)
[
(A)
the applicant's medical condition;
(B)
a behavior displayed by the applicant that poses a danger
to the applicant or to others; or
(C)
the applicant's need for assistance with activities of
daily living during normal sleeping hours;
(5)
[
(6)
[
(k)
For an applicant under 22 years
of age for whom supervised living or residential support has been requested,
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 enrollment.
(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 supervised living or residential support;
(B)
the applicant's daily support needs;
(C)
for the 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 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 the applicant's enrollment, 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 enrollment;
(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.
[
[
[
[
[
[
(l) - (n)
(No change.)
(o)
The MRA compiles and maintains information necessary to
process the applicant's request, or LAR's request on behalf of the applicant,
for enrollment in the HCS Program.
(1) - (3)
(No change.)
[
(p) - (v)
(No change.)
(w)
Copies of the following forms and letters referenced in
this section are available by contacting the Department of Aging and Disability
Services, Provider Services Division, P.O. Box 149030,
Mail Code W-521,
Austin, Texas 78714-9030:
(1) - (3)
(No change.)
(4)
Choice of Waiver letter; [
(5)
Choice of Provider letter
;
[
(6)
Permanency Planning Instrument
for Children Under 18 Years of Age (Permanency Plan); and
(7)
Permanency Planning Instrument
for Individuals 18 - 22 Years of Age (Permanency Plan).
§9.166.Revisions and Renewals of Individual Plans of Care (IPCs), Levels of Care (LOCs) and Levels of Need (LONs) for Enrolled Individuals.
(a)
At least annually, and before the expiration of an individual's
IPC, the individual's IDT must review the ISP and IPC to determine whether
individual outcomes and services previously identified remain relevant.
(1)
(No change.)
(2)
At minimum, the ISP must include the following:
(A)
(No change.)
(B)
the activities, supports, and services necessary to
accomplish the permanency planning goal, in accordance with §9.164(k)
of this subchapter (relating to Process for Enrollment of Applicants)
for
an individual under 22 years of age receiving supervised living or residential
support
as follows:
[
(i)
for an individual under 18
years of age, the activities, supports, and services that, when provided or
facilitated by the program provider or MRA, will enable the individual to
live with a family; or
(ii)
for an individual age 18 -
22 years of age, the activities, 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;
(C)
written justification for each service component to be
included in the IPC; [
(D) - (E)
(No change.)
(3) - (4)
(No change.)
(b)
(No change.)
§9.167.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 is no longer receiving supervised living or residential support:
(1)
provide written notice to the LAR of a meeting to conduct
a review of the individual's permanency plan no later than 21 calendar days
before the meeting date and include a request for a response from the LAR;
(2)
convene a meeting to review the individual's current permanency
plan in accordance with §9.164(k)(2) - (5) of this subchapter (relating
to Process for Enrollment of Applicants), with an emphasis on changes or additional
information gathered since the last permanency plan was developed;
(3)
develop a permanency plan in accordance with §9.164(k)(6)
of this subchapter;
(4)
perform actions regarding a volunteer advocate as described
in §9.164(l) - (n) of this subchapter;
(5)
complete the Permanency Planning Review Screen in CARE
within 10 calendar days after the meeting;
(6)
ensure that approval for the individual to continue to
reside in an institution is obtained every six months from the DADS commissioner
and the HHSC 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.
§9.168.Provision of Supervised Living or Residential Support After Enrollment.
If an MRA receives information in accordance with §9.174(58) of
this subchapter (relating to Certification Principles: Service Delivery) that
an individual who has been enrolled in the HCS Program starts receiving supervised
living or residential support, the MRA must, within 14 working days after
the date the MRA receives the information, unless this time period is extended
by the LAR:
(1)
provide an explanation of services and supports and other
information in accordance with §9.164(c) of this subchapter (relating
to Process for Enrollment of Applicants); and
(2)
take actions to conduct permanency planning as described
in §9.164(k) - (n) of this subchapter.
§9.174.Certification Principles: Service Delivery.
The program provider must:
(1) - (5)
(No change.)
(6)
request from and encourage
an LAR of an individual under 22 years of age receiving supervised living
or residential support to provide the following information during the annual
review of the ISP, and request from and encourage an LAR of an applicant under
22 years of age who is requesting supervised living or residential support
to provide the following information at the time these services are initiated:
(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)
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;
(7)
inform the LAR that if the
information described in paragraph (6) of this section is not provided or
is not accurate and the program provider and DADS are unable to locate the
LAR as described in paragraph (8)(G) of this section and §9.189 of this
subchapter (relating to Referral to DFPS), DADS refers the case to DFPS;
(8)
for an individual under 22
years of age receiving supervised living or residential support:
(A)
make reasonable accommodations to promote the
participation of the LAR in all planning and decision-making regarding the
individual's care, including participating in:
(i)
the initial development and annual review of
the individual's ISP;
(ii)
decision-making regarding the individual's
medical care;
(iii)
routine IDT meetings; and
(iv)
decision-making and other activities involving
the individual's health and safety;
(B)
ensure that reasonable accommodations include:
(i)
conducting a meeting in person or by telephone,
as mutually agreed upon by the program provider and the LAR;
(ii)
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;
(iii)
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
(iv)
providing a language interpreter, if appropriate;
(C)
provide written notice to the LAR of a meeting
to conduct an annual review of the individual's ISP no later than 21 calendar
days before the meeting date and request a response from the LAR;
(D)
take the following actions to assist an MRA
in conducting permanency planning:
(i)
cooperate with the MRA responsible for conducting
permanency planning by:
(I)
allowing access to an individual's records or
providing other information in a timely manner as requested by the MRA or
HHSC;
(II)
participating in meetings to review the individual's
permanency plan; and
(III)
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;
(ii)
encourage regular contact between the individual
and the LAR and, if desired by the individual and LAR, between the individual
and advocates and friends in the community to continue supportive and nurturing
relationships;
(iii)
encourage participation in IDT meetings by
the LAR, and, if desired by the individual or LAR, by family members, advocates,
and friends in the community;
(iv)
provide a copy of the ISP to the individual's
MRA;
(v)
keep a copy of the individual's current permanency
plan in the individual's record; and
(vi)
refrain from providing the LAR with inaccurate
or misleading information regarding the risks of moving the individual to
another institutional setting or to a community setting;
(E)
if an emergency situation occurs, attempt to
notify the LAR as soon as the emergency situation allows and request a response
from the LAR;
(F)
if an LAR does not respond to a notice of the
individual's ISP review meeting, a request for the LAR's consent, or an emergency
situation, attempt to locate the LAR by contacting a person identified by
the LAR in the contact information described in paragraph (6) of this section;
(G)
notify DADS, no later than 30 calendar days
after the date a program provider determines that it is unable to locate the
LAR, of that determination and request that DADS initiate a search for the
LAR;
(H)
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 residence operated by the transferring program provider,
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; and
(I)
document compliance with paragraph (6) of this
section and subparagraphs (A) - (H) of this paragraph in the individual's
record;
[
[
[
(9) - (57)
(No change.)
(58)
within three
working
days of initiating supervised
living or residential support to an individual under 22 years of age, provide
the information listed in paragraph (59) of this section to the following:
(A)
the MRA in whose local service area the residence is located
(see
www.dads.state.tx.us/contact/mra/index.cfm
[
(B)
the CRCG for the county in which the applicant's
LAR
[
(C)
the local school district for the area in which the residence
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 residence
is located, if the individual is less than three years of age (see
www.dars.state.tx.us/ecis/index.shtml
[
(59)
include in the notification given by the program provider
in accordance with paragraph (58) of this section the following information
about an individual:
(A) - (G)
(No change.)
(H)
address where supervised living or residential support
is provided;
and
(I)
name and phone number of person submitting the notification
.
[
[
§9.189.Referral to DFPS.
If, within one year of the date DADS receives the notification described
in §9.174(8)(G) of this subchapter (relating to Certification Principles:
Service Delivery), DADS is unable to locate the LAR, DADS refers the case
to:
(1)
the Child Protective Services Division of DFPS if the individual
is under 18 years of age; or
(2)
the Adult Protective Services Division of DFPS 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 June 2, 2006.
TRD-200603013
Marianne Reat
Interim General Counsel
Department of Aging and Disability Services
Earliest possible date of adoption: July 16, 2006
For further information, please call: (512) 438-3734
The Health and Human Services Commission (HHSC) proposes, on behalf
of the Department of Aging and Disability Services (DADS), amendments to §97.243,
concerning administrative and supervisory responsibilities, §97.295,
concerning client transfer or discharge notification requirements, and §97.602,
concerning administrative penalties; the repeal of §97.244, concerning
staffing qualifications and conditions; and new §97.244, concerning administrator
qualifications and conditions and supervising nurse qualifications, and §97.259,
concerning training in administration of agencies, in Chapter 97, Licensing
Standards for Home and Community Support Services Agencies.
Background and Purpose
The purpose of the amendments, new sections, and repeal is to update provisions
for home and community support services agencies (agencies) regarding administrative
and supervisory responsibilities, administrator and supervising nurse qualifications,
training in the administration of an agency, and notifications for a client
transfer or discharge. The amendments update rule cross-references and correct
the administrative penalty charts with the updated rule references. The amendments
and new sections add educational training requirements and continuing education
requirements for an agency administrator.
Section-by-Section Summary
The amendment to §97.243 reorganizes the section to define administrative
and administrator responsibilities and the agency's supervision of services.
The administrator of an agency must meet the qualifications and conditions
in §97.244, and an alternate administrator must be designated in writing
to act in the absence of the administrator. The amendment requires an administrator
or alternate administrator to be available in person or by telephone for a
survey and to provide access to the agency or designate an agency employee
to provide access. An agency must directly employ or contract with a supervising
nurse who meets the qualifications in §97.244 and designate in writing
a qualified alternate to serve as the supervising nurse.
Section 97.244 is repealed and the new version of §97.244 clarifies
the administrator qualifications and conditions and the supervising nurse
qualifications. The new section requires an administrator of an agency to
meet the educational training requirements and continuing education requirement
of §97.259. To be eligible as an agency administrator or alternate administrator,
an individual must not have served in the previous year as an administrator
of an agency that had enforcement action taken against it, and must not have
been convicted of a crime, offense, or misdemeanor as defined in §97.241.
New §97.259 requires an administrator or alternate administrator who
is designated as an administrator or alternate administrator on or after December
1, 2006, to complete a 24-hour educational requirement on the administration
of an agency. The administrator must have 8 clock hours of educational training
at designation and obtain an additional 16 clock hours of educational training
within the first 12 months after designation in the topics listed in the section.
The training must be provided by an academic institution, a recognized state
or national organization or association, an independent contractor who consult
with agencies, or an agency. Documentation of the training must be kept on
file at the agency. The new section requires the administrator and alternate
administrator to complete 12 clock hours of continuing education after the
first year of designation as administrator or alternate administrator or any
time the individual has not served as an administrator of an agency for at
least 180 days.
The amendment to §97.295 requires an agency to provide written notification
to a client and the client's attending physician or practitioner, if he is
involved in the agency's care of the client, of a pending transfer or discharge
of the client. The amendment requires an agency to provide written notification
of a client's transfer or discharge within the required time frame as set
by the section. An agency must keep the written notification in the client's
file.
The amendment to §97.602 updates the administrative penalty charts
in subsection (e)(1) and (2) to correct rule cross-references due to this
proposal and to add certain violations of new §97.259.
Fiscal Note
Gordon Taylor, DADS Chief Financial Officer, has determined that, for the
first five years the proposed amendments, new sections, and repeal are in
effect, there are foreseeable implications relating to costs or revenues of
state government. There are no foreseeable implications relating to costs
or revenues of local governments.
The effect on state government for the first five years the proposed amendments,
new sections, and repeal are in effect is an estimated increase in revenue
due to the revision of the administrative penalty charts of §97.602.
Exact revenue increases are indeterminable based on the graduated nature of
the penalties and the potential for an agency to reduce assessed penalties
if corrective measures and time frames are met.
Small Business and Micro-business Impact Analysis
DADS has determined that there is an adverse economic effect on small businesses,
micro-businesses, and businesses of any size as a result of enforcing or administering
the amendments, new sections, and repeal. The proposed new §97.259 may
have a fiscal impact on licensed agencies that reimburse administrators and
alternate administrators for the cost of continuing education. The fixed cost
of the educational and continuing educational requirements are approximately
equal for all agencies (subject to attrition); however, the cost of continuing
education would be a higher percentage of an agency's cost of doing business
for those agencies with fewer employees, labor hours, and less income as compared
to a smaller percentage associated with larger agencies. The requirements
of §97.259 are applied to all agencies regardless of the size of the
business.
There may be an adverse economic effect on small businesses or micro-businesses
as a result of the proposed amendment to §97.602, due to additional administrative
penalties that may be imposed under this section against an agency that does
not comply with the rules. For most violations, the rule provides a range
of amounts that may be assessed as an administrative penalty. Therefore, the
size of a business may be taken into account in assessing an administrative
penalty. In addition, due to the indeterminable nature of these penalties,
as explained in the fiscal note, a cost comparison is not feasible.
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, new
sections, and repeal are in effect, the public benefit expected as a result
of enforcing the amendments, new sections, and repeal is that the rules will
strengthen the requirements for a licensed agency's designation of administrative
and supervisory staff and clarify issues that have been identified by DADS
and agencies. The proposed rules will provide greater protection to the health
and safety of the agency's clients by having qualified personnel in these
positions.
Ms. Durden anticipates that there may be an economic cost to persons who
are required to comply with the amendments, new sections, and repeal if an
agency reimburses its administrators and alternate administrators for the
cost of the educational and continuing educational requirements. There will
also be a cost to an agency that violates a rule and is assessed an administrative
penalty. The amendments, new sections, 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 Rosalind
Nelson-Gamblin at (512) 438-3158 in DADS' Regulatory Services Policy Development
and Support Unit. Written comments on the proposal may be submitted to Texas
Register Liaison, Legal Services-001, 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
.
Subchapter C. MINIMUM STANDARDS FOR ALL HOME AND COMMUNITY SUPPORT SERVICES AGENCIES
3.
AGENCY ADMINISTRATION
40 TAC §§97.243, 97.244, 97.259
Statutory Authority
The amendment and new sections 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 Health and Safety Code, Chapter 142, which provides DADS
with the authority to adopt rules for licensing and regulation of home and
community support services agencies.
The amendment and new sections implement Texas Government Code, §531.0055,
Texas Human Resources Code, §161.021, and Texas Health and Safety Code, §§142.001-142.030.
§97.243. Administrative and Supervisory [
(a)
Administrative responsibilities.
[
(1)
A license holder or the license holder's
designee must designate an individual who meets the qualifications and conditions
set out in §97.244 of this chapter (relating to Administrator Qualifications
and Conditions and Supervising Nurse Qualifications) to serve as the administrator
of the agency.
(2)
A license holder or the license holder's
designee must designate in writing an alternate administrator who meets the
qualifications and conditions of an administrator to act in the absence of
the administrator.
(b)
Administrator responsibilities.
(1)
An
[
(A)
organize and direct the agency's ongoing functions;
(B)
ensure
[
(C)
employ
or contract with
qualified[
(D)
ensure adequate staff education and evaluations
according
to requirements in §97.245(b) of this chapter (relating to Staffing Policies)
;
(E)
ensure the accuracy of public information materials and
activities;
(F)
implement an effective budgeting and accounting system
that promotes the health and safety of the agency's clients; and
(G)
supervise and evaluate client satisfaction survey reports
on all clients served.
(2)
An
[
(3)
An administrator must designate in writing
an agency employee who must provide DADS surveyors entry to the agency in
accordance with §97.523(e) of this chapter (relating to Personnel Requirements
for a Survey) if the administrator and alternate administrator are not available.
(c)
[
(1)
Except as provided in paragraph (3) of this subsection,
an
[
(2)
An agency must designate in writing a similarly
qualified alternate to serve as supervising nurse in the absence of the supervising
nurse.
[
(A)
[
(i)
[
(ii)
[
(iii)
[
(iv)
[
(I)
[
(II)
[
(III)
[
(B)
[
(3)
[
(d)
[
(1)
for a branch office,
§97.27
[
(2)
for an alternate delivery site,
§97.29
[
§97.244.Administrator Qualifications and Conditions and Supervising Nurse Qualifications.
(a)
Administrator qualifications. An administrator and alternate
administrator must meet the qualifications and conditions of this section
before being designated as the administrator or alternate administrator.
(1)
For an agency licensed to provide licensed home health
services, licensed and certified home health services, or hospice services,
the administrator and the alternate administrator must:
(A)
be a licensed physician, registered nurse, licensed social
worker, licensed therapist, or licensed nursing home administrator with at
least one year of management or supervisory experience in a health-related
setting, such as:
(i)
a home and community support services agency;
(ii)
a hospital;
(iii)
a nursing facility;
(iv)
a hospice;
(v)
an outpatient rehabilitation center;
(vi)
a psychiatric facility;
(vii)
an intermediate care facility for persons with mental
retardation or related conditions; or
(viii)
a licensed health care delivery setting providing services
for individuals with functional disabilities; or
(B)
have a high school diploma or a general equivalency degree
(GED) with at least two years of management or supervisory experience in a
health-related setting, such as:
(i)
a home and community support services agency;
(ii)
a hospital;
(iii)
a nursing facility;
(iv)
a hospice;
(v)
an outpatient rehabilitation center;
(vi)
a psychiatric facility;
(vii)
an intermediate care facility for persons with mental
retardation or related conditions; or
(viii)
a licensed health care delivery setting providing services
for individuals with functional disabilities.
(2)
For an agency licensed to provide only personal assistance
services, the administrator and the alternate administrator must meet at least
one of the following qualifications:
(A)
have a high school diploma or a GED with at least one year
experience or training in caring for individuals with functional disabilities;
(B)
have completed two years of full-time study at an accredited
college or university in a health-related field; or
(C)
meet the qualifications listed in paragraph (1)(A) or (B)
of this subsection.
(b)
Administrator conditions.
(1)
An administrator and alternate administrator must be able
to read, write, and comprehend English.
(2)
An administrator and alternate administrator must meet
the requirements on the administration of an agency in §97.259 of this
chapter (relating to Training in Administration of Agencies).
(3)
A person is not eligible to be the administrator or alternate
administrator of any agency if the person was the administrator of an agency
cited with a violation that resulted in DADS taking enforcement action against
the agency while the person was the administrator of the cited agency.
(A)
This paragraph applies for 12 months after the date of
the enforcement action.
(B)
For purposes of this paragraph, enforcement action means
license revocation, suspension, emergency suspension of a license, denial
of an application for a license, or the imposition of an injunction but does
not include administrative or civil penalties.
(C)
If DADS prevails in one enforcement action against the
agency and also proceeds with, but does not prevail in, another enforcement
action based on some or all of the same violations, this paragraph does not
apply.
(4)
An administrator and alternate administrator must not be
convicted of a crime, offense, or misdemeanor as defined in §97.241(b)
of this chapter (relating to Management).
(c)
Supervising nurse qualifications.
(1)
For an agency without a home dialysis designation, a supervising
nurse and alternate supervising nurse must each:
(A)
be a registered nurse (RN) licensed in Texas or in accordance
with the Board of Nurse Examiners rules for Nurse Licensure Compact (NLC);
and
(B)
have at least one year experience as an RN within the last
36 months.
(2)
For an agency with home dialysis designation, a supervising
nurse and alternate supervising nurse must each:
(A)
be an RN licensed in Texas or in accordance with the Board
of Nurse Examiners rules for NLC, and:
(i)
have at least three years current experience in hemodialysis;
or
(ii)
have at least two years experience as an RN and hold a
current certification from a nationally recognized board in nephrology nursing
or hemodialysis; or
(B)
be a nephrologist or physician with training or demonstrated
experience in the care of ESRD clients.
§97.259.Training in Administration of Agencies.
(a)
Subsections (b) - (g) of this section apply only to an
administrator and alternate administrator designated as an administrator or
alternate administrator for the first time on or after December 1, 2006.
(b)
In addition to the qualifications and conditions described
in §97.244 of this chapter (relating to Administrator Qualifications
and Conditions and Supervising Nurse Qualifications), an administrator and
alternate administrator of an agency must each have completed a total of 24
clock hours of training in the administration of an agency as described in
subsections (c) and (e) of this section before the end of the 12 months after
designation to the position.
(c)
At designation, an administrator or alternate administrator
must have eight clock hours of educational training in the administration
of an agency that includes:
(1)
information on the licensing standards for an agency; and
(2)
the state and federal laws applicable to an agency, including:
(A)
the Health and Safety Code, Chapter 142, Home and Community
Support Services, and Chapter 250, Nurse Aide Registry and Criminal History
Checks of Employees and Applicants for Employment in Certain Facilities Serving
the Elderly or Persons with Disabilities;
(B)
the Human Resources Code, Chapter 102, Rights of the Elderly;
(C)
the Americans with Disabilities Act;
(D)
the Civil Rights Act of 1991;
(E)
the Rehabilitation Act of 1993;
(F)
the Family and Medical Leave Act of 1993; and
(G)
the Occupational Safety and Health Administration requirements.
(d)
The administrator or alternate administrator must not apply
the presurvey conference toward the requirement of subsection (c) of this
section.
(e)
An administrator and alternate administrator must each
complete an additional 16 clock hours of educational training on the following
subjects within the first 12 months after designation to the position:
(1)
information regarding fraud and abuse detection and prevention;
(2)
legal issues regarding advance directives;
(3)
client rights, including the right to confidentiality;
(4)
agency responsibilities;
(5)
complaint investigation and resolution;
(6)
disaster preparedness planning;
(7)
abuse, neglect, and exploitation;
(8)
infection control;
(9)
nutrition (for agencies licensed to provide inpatient hospice
services); and
(10)
the Outcome and Assessment Information Set (OASIS) (for
agencies licensed to provide licensed and certified home health services).
(f)
The 24-hour educational training requirement described
in subsection (b) of this section must be met through structured, formalized
classes, correspondence courses, competency-based computer courses, training
videos, distance learning programs, or off-site training courses. Subject
matter that deals with the internal affairs of an organization does not qualify
for credit.
(1)
The training must be provided or produced by:
(A)
an academic institution;
(B)
a recognized state or national organization or association;
(C)
an independent contractor who consults with agencies; or
(D)
an agency.
(2)
If an agency or independent contractor provides or produces
the training, the training must be approved by DADS or recognized by a state
or national organization or association. The agency must maintain documentation
of this approval for review by DADS surveyors.
(g)
Documentation of administrator and alternate administrator
training must:
(1)
be on file at the agency; and
(2)
contain the name of the class or workshop, the course content
(such as the curriculum), the hours and dates of the training, and the name
and contact information of the entity and trainer who provided the training.
(h)
An administrator and alternate administrator must each
complete 12 clock hours of continuing education within each 12 months after
the date of designation to the position. This requirement will be met in the
first year of designation to the position by the 24-hour educational training
requirement described in subsection (b) of this section. The continuing education
requirement must include at least two of the following topics:
(1)
any one of the educational training subjects listed in
subsection (e) of this section;
(2)
development and interpretation of agency policies;
(3)
basic principles of management in a licensed health-related
setting;
(4)
ethics;
(5)
quality improvement;
(6)
risk assessment and management;
(7)
financial management;
(8)
skills for working with clients, families, and other professional
service providers;
(9)
community resources; or
(10)
marketing.
(i)
An agency administrator or alternate administrator designated
as an agency administrator or alternate administrator before December 1, 2006,
who has not served as an administrator or alternate administrator for 180
days or more must complete 12 clock hours of continuing education within 12
months after designation. At least eight clock hours of the continuing education
must include the topics listed in subsection (c) of this section.
(j)
An administrator or alternate administrator must not apply
the presurvey conference toward the requirements of subsection (h) or (i)
of this section.
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 June 2, 2006.
TRD-200603014
Marianne Reat
Interim General Counsel
Department of Aging and Disability Services
Earliest possible date of adoption: July 16, 2006
For further information, please call: (512) 438-3734
40 TAC §97.244
(Editor's note: The text of the following section proposed for
repeal will not be published. The section 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; 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 Health and Safety Code, Chapter 142, which provides DADS with the authority
to adopt rules for licensing and regulation of home and community support
services agencies.
The repeal implements Texas Government Code, §531.0055, Texas Human
Resources Code, §161.021, and Texas Health and Safety Code, §§142.001-142.030.
§97.244.Staffing Qualifications and Conditions.
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 June 2, 2006.
TRD-200603015
Marianne Reat
Interim General Counsel
Department of Aging and Disability Services
Earliest possible date of adoption: July 16, 2006
For further information, please call: (512) 438-3734
40 TAC §97.295
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 Health and Safety Code, Chapter 142, which provides DADS
with the authority to adopt rules for licensing and regulation of home and
community support services agencies.
The amendment implements Texas Government Code, §531.0055, Texas Human
Resources Code, §161.021, and Texas Health and Safety Code, §§142.001-142.030.
§97.295.Client Transfer or Discharge Notification Requirements.
(a)
Except
as provided in subsection (c) of this section
[
(1)
the client or the client's parent, family,
spouse, significant other, or legal representative
;
[
(2)
the client's attending physician
or practitioner
if he is involved in the agency's care of the client
[
(b)
An agency licensed to provide licensed
home health services, licensed and certified home health services, and personal
assistance services must ensure the client receives the written notification
no later than five days before the date on which the client will be transferred
or discharged. An agency licensed to provide hospice services must ensure
the client receives the written notification no later than two working days
before the date on which the client will be transferred or discharged.
(c)
[
(1)
upon the client's request;
(2)
if the client's medical needs require transfer, such as
a medical emergency;
(3)
in the event of a natural disaster when the client's health
and safety is at risk
in accordance with provisions of §97.256 of
this chapter (relating to Natural Disaster Preparedness)
;
(4)
for the protection of staff or a client after the agency
has made a documented reasonable effort to notify the client, the client's
family and physician, and appropriate state or local authorities of the agency's
concerns for staff or client safety, and in accordance with agency policy;
(5)
according to physician orders; or
(6)
if the client fails to pay for services, except as prohibited
by federal law.
(d)
[
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 June 2, 2006.
TRD-200603016
Marianne Reat
Interim General Counsel
Department of Aging and Disability Services
Earliest possible date of adoption: July 16, 2006
For further information, please call: (512) 438-3734
(10)
] 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.
(11)
] HCS Program--The Home and
Community-based Services Program operated by DADS as authorized by the Centers
for Medicare and Medicaid Services in accordance with §1915(c) of the
Social Security Act.
(12)
] HCS case manager--An employee
of the program provider who is responsible for the overall coordination and
monitoring of HCS Program services provided to an individual.
(13)
] HHSC--The Texas Health and
Human Services Commission.
(14)
] ICAP--Inventory for Client
and Agency Planning.
(15)
] ICF/MR--Intermediate care
facility for persons with mental retardation or related conditions.
(16)
] IDT (interdisciplinary team)--A
planning team constituted by the program provider for each individual consisting
of, at a minimum, the individual and LAR, HCS case manager, and a nurse. Other
applicable persons assigned to provide or who are currently providing direct
services to the individual and, as appropriate, a physician and other professional
personnel may be included as team members as necessary.
(17)
] IPC (individual plan of
care)--A document that describes the type and amount of each HCS Program service
component to be provided to an individual and describes medical and other
services and supports to be provided through non-program resources.
(18)
] IPC cost--Estimated annual
cost of program services included on an IPC.
(19)
] IPC year--A 12-month period
of time starting on the date an authorized initial or renewal IPC begins.
(20)
] Individual--A person enrolled
in the HCS Program.
(21)
] ISP (individual service
plan)--A written plan, from which the IPC is derived, developed by the IDT
using person-directed planning and, if appropriate, permanency planning. The
ISP describes the assessments, recommendations, deliberations, conclusions,
justifications, and outcomes regarding the specific services provided to the
individual by the program provider.
(22)
] Large ICF/MR--A non-state
operated ICF/MR with a Medicaid certified capacity of 14 or more.
(23)
] LAR (legally authorized
representative)--A person authorized by law to act on behalf of 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.
(24)
] LOC (level of care)--A determination
given to an individual as part of the eligibility determination process based
on data submitted on the MR/RC Assessment.
(25)
] LON (level of need)--An
assignment given by DADS to an individual upon which reimbursement for foster/companion
care, supervised living, residential support, and day habilitation is based.
The LON assignment is derived from the service level score obtained from the
administration of the ICAP to the individual and from selected items on the
MR/RC Assessment.
(26)
] LVN--Licensed vocational
nurse.
(27)
] MRA (mental retardation
authority)--An entity to which HHSC's authority and responsibility described
in Texas Health and Safety Code, §531.002(11) has been delegated.
(28)
] MR/RC Assessment--A form
used by DADS for LOC determination and LON assignment.
(29)
] 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.
(30)
] PDP (person-directed plan)--A
plan developed for an applicant in accordance with §9.164 of this subchapter
(relating to Process for Enrollment of Applicants) that describes the supports
and services necessary to achieve the desired outcomes identified by the applicant
or LAR on behalf of the applicant.
(31)
] Person-directed planning--A
process that empowers the individual (and the LAR on the individual's behalf)
to direct the development of a plan for supports and services that meet the
individual's outcomes. The process:
(32)
] 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.
(33)
] 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 to provide
supervised living or residential support to the individual.
(34)
] Program provider--An entity
that provides HCS Program services under a waiver program provider agreement
with DADS as defined in Subchapter Q of this chapter (relating to Enrollment
of Medicaid Waiver Program Providers).
(35)
] Restraint--
(36)
] RN--Registered nurse.
(37)
] Seclusion--The involuntary
separation of an individual away from other individuals and the placement
of the individual alone in an area from which the individual is prevented
from leaving.
(38)
] Service coordinator--An
employee of an MRA responsible for assisting an individual or LAR on behalf
of the individual in accessing medical, social, educational, and other appropriate
services, including HCS Program services.
(39)
] Service planning team--A
planning team constituted by an MRA consisting of an applicant, LAR, service
coordinator, and other persons chosen by the applicant or LAR on behalf of
the applicant.
(40)
] TANF--Temporary Assistance
for Needy Families.
(41)
] SSI--Supplemental Security
Income.
(3)
if the applicant is under
22 years of age and seeking supervised living or residential support, a description
of the desired permanency planning outcomes, including:]
(A)
the natural supports and strengths of the family
of an applicant under 18 years of age that, when supplemented by activities
and supports provided or facilitated by the program provider or MRA, will
enable the applicant to return to the family home;]
(B)
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]
(C)
the natural supports and strengths of an applicant
18 to 22 years of age that, when supplemented by activities and supports provided
or facilitated by the program provider or MRA, will result in the applicant
having a consistent and nurturing environment as defined by the applicant
and LAR;]
(4)
] documentation that the type
and amount of each service component included in the applicant's IPC:
(5)
] when the proposed IPC includes
residential support, the reasons the service planning team concludes that
supervision and assistance from awake service providers during normal sleeping
hours are required to ensure the applicant's health and welfare, including
the applicant's demonstrated needs for staff intervention to respond to:
(6)
] a description of all determinations
needed to establish the applicant's eligibility for SSI or Medicaid benefits
and for an LOC; and
(7)
] a description of actions and
methods to be used to reach identified service outcomes, projected completion
dates, and person(s) responsible for completion.
(k)
The MRA must take the following
actions to facilitate permanency planning for the applicant under 22 years
of age who requests supervised living or residential support:]
(1)
discuss with the applicant or LAR the problems
or issues that led the applicant or LAR to request supervised living or residential
support;]
(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
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, MRA, or a program provider that will prepare
the applicant for a family-based alternative, if the applicant or LAR choose
that option.]
(4)
If the applicant is under
22 years of age and requesting supervised living or residential support, the
MRA must complete a Permanency Planning Review Screen and receive approval
from DADS to provide such services.]
and
]
.
]
, permanency planning outcomes as described
in §9.174(14) of this subchapter (relating to Certification Principles:
Service Delivery);
]
and
]
(6)
ensure that a minor individual
who is unable to live in the natural or adoptive family home is supported
in 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;]
(7)
justify the reasons for serving
a minor individual outside the natural or adoptive family home;]
(8)
make every possible effort
to return a minor individual being served outside his or her natural or adoptive
family home to his or her family home as soon as possible;]
www.dads.state.tx.us/services/dads_help/mental_retardation/index.html
] for a listing of MRAs by
county or
city);
parent or guardian
] lives (see www.hhsc.state.tx.us/crcg/crcg.htm
for a listing of CRCG chairpersons by county); and
www.dars.state.tx.us/services/ECI.shtml
] or call 1-800-250-2246
for a listing of ECI programs by county);
and
; and
]
(60)
ensure that, if an individual
is under 22 years of age and receiving residential support or supported living,
a Permanency Planning Review Screen is completed and approval to continue
to provide such services is obtained every six months from the DADS commissioner
or the HHSC executive commissioner.]
Chapter 97.
LICENSING STANDARDS FOR HOME AND COMMUNITY SUPPORT SERVICES AGENCIES Management ] Responsibilities.
Administrator.
The licensee must appoint an administrator who meets the qualifications and
conditions set out in §97.244(a) of this title (relating to Staffing
Qualifications and Conditions). The licensee must also designate in writing
a person who meets the qualifications of an administrator to act in the absence
of the administrator.
]
The
] administrator must be responsible
for implementing and supervising the administrative policies of the agency
and administratively
supervising
[
supervise
] the provision
of all services. At a minimum, the administrator must:
assure
] that the documentation
of services provided is accurate and timely;
, competent
] personnel;
The
] administrator or
alternate
administrator
[
designee
] must be available
in person
or by telephone
during the agency's operating hours
as defined
in §97.210 of this chapter (relating to Agency Operating Hours)
.
(b)
]
Supervision of services
[
Supervising nurse
].
An
] agency
licensed
[
with a license
]
to provide licensed home health
services
, licensed and certified
home health
services
, or hospice services must
directly employ
or contract with an individual to serve as the
[
have a
] supervising
nurse
who meets the qualifications in §97.244(c) of this chapter
.
(2)
The administrator must appoint a supervising
nurse who meets the qualifications set out in §97.244(b) of this title
(relating to Staffing Qualifications and Conditions). The administrator must
also appoint a similarly qualified alternate to serve as supervising nurse
in the absence of the supervising nurse.
]
(3)
] The supervising nurse or
alternate supervising nurse
[
designee
] must:
(A)
] be available to the agency
at all times[
. The supervising nurse or designee may be available
]
in person or
by telephone
[
via telecommunication
];
(B)
] participate in activities
relevant to [
professional
] services furnished
,
including
the development of qualifications and assignment of agency personnel;
(C)
]
ensure
[
assure
] that a client's plan of care
or care plan
is executed
as written;
and
(D)
]
ensure
[
assure
] that
an appropriate health care professional performs
a
reassessment of a client's needs [
is performed by the appropriate health
care professional
]:
(i)
] when there is a significant
health status change in the client's condition;
(ii)
] at the physician's request;
or
(iii)
] after hospital discharge.
(4)
]
A
[
The
]
supervising nurse may also be the administrator of the agency if the supervising
nurse meets the qualifications
and conditions
of an administrator
described in
§97.244(a) and (b)
[
§97.244(a)
]
of this
chapter
[
title (relating to Staffing Qualifications
and Conditions)
].
(5)
] An agency that provides only
physical, occupational, speech, or respiratory therapy; medical social services;
or nutritional counseling is not required to
employ or contract with
[
have
] a supervising nurse.
A qualified licensed professional
must supervise
[
Supervision of
] these services
, as applicable
[
must be provided by a qualified licensed professional
].
(c)
] Supervision of branch offices
and
alternate
[
alternative
] delivery sites. An agency
must adopt and enforce a written policy relating to the supervision of branch
offices or alternate delivery sites, if established. This policy must be consistent
with the following:
§97.14
] of this
chapter
[
title
] (relating to Application
and Issuance of a Branch Office License) and §97.321 of this
chapter
[
title
] (relating to Standards for Branch Offices); or
§97.15
] of this
chapter
[
title
] (relating
to Application and Issuance of
an Alternate Delivery Site
[
a Branch Office
] License) and §97.322 of this
chapter
[
title
] (relating to Standards for Alternate Delivery Sites).
4.
PROVISION AND COORDINATION OF TREATMENT AND SERVICES
in an emergency
], an agency intending to transfer or discharge
a client must
provide written notification to:
[
notify
]
,
]
and
(if applicable)
five days before the date on which the client will be transferred or discharged
].
(b)
] An agency may transfer or
discharge a client without
prior
[
five days
] notice
required by subsection
(b)
[
(a)
] of this section:
(c)
]
An
[
The
]
agency must
keep the written notification
[
document notice
] required by subsection (a) of this section in the client's file.
Subchapter F. ENFORCEMENT