Part 1. DEPARTMENT OF AGING AND DISABILITY SERVICES
Chapter 6. ICF/MR PROGRAMS--CONTRACTING
Subchapter G. ADDITIONAL FACILITY RESPONSIBILITIES
The Health and Human Services Commission (HHSC), on behalf of the Department of Aging and Disability Services (DADS), adopts the repeal of Subchapter G, consisting of §6.301 and §6.310, in Chapter 6, ICF/MR (Intermediate Care Facilities for Persons with Mental Retardation or Related Conditions) Programs--Contracting, without changes to the proposal as published in the March 30, 2007, issue of the Texas Register (32 TexReg 1843).
The repeal of §6.301 is adopted to delete an obsolete rule from the DADS rule base. The state law requiring the memorandum of understanding concerning the education of school-age residents of ICFs/MR, which is summarized in subsection (a) and referenced specifically in §6.301(a)(3), was repealed by the 73rd Legislature, 1993, Regular Session. The Texas Education Agency rule referenced in §6.301(a)(3) has also been repealed. The provisions found in subsections (b) and (c) are not necessary to have in rule. The current memorandum of understanding concerning the education of school-age residents of ICFs/MR is referenced in DADS' rule base at 40 TAC §72.5003.
The repeal of §6.310 is adopted to facilitate the consolidation of the state standards for ICF/MR providers relating to surrogate decision-making into one subchapter of the Texas Administrative Code. The requirement in §6.310 for community-based ICF/MR facilities to comply with DADS' surrogate decision-making rules is now in Chapter 9, Subchapter E, Division 10, adopted elsewhere in this issue of the Texas Register.
DADS received no comments regarding adoption of the repeal.
The repeal is adopted 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, §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.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on June 7, 2007.
TRD-200702290
Kenneth L. Owens
General Counsel
Department of Aging and Disability Services
Effective date: July 1, 2007
Proposal publication date: March 30, 2007
For further information, please call: (512) 438-3734
Subchapter J. SURROGATE DECISION-MAKING FOR COMMUNITY-BASED ICF/MR AND ICF/MR/RC FACILITIES
The Health and Human Services Commission (HHSC), on behalf of the Department of Aging and Disability Services (DADS), adopts the repeal of Subchapter J, consisting of §§8.231 - 8.249, in Chapter 8, Client Care--Mental Retardation Services, without changes to the proposal as published in the March 30, 2007, issue of the Texas Register (32 TexReg 1844).
The repeal is adopted to facilitate the consolidation of the state standards for community-based program providers of the Intermediate Care Facilities for Persons with Mental Retardation (ICF/MR) Program relating to surrogate decision-making into one subchapter of the Texas Administrative Code. The sections proposed for repeal also needed updating to reflect current practices and terminology. HHSC, on behalf of DADS, is adopting new rules governing surrogate decision-making in Chapter 9, Subchapter E, Division 10, elsewhere in this issue of the Texas Register.
DADS received no comments regarding adoption of the repeal.
The repeal is adopted 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, §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.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on June 7, 2007.
TRD-200702291
Kenneth L. Owens
General Counsel
Department of Aging and Disability Services
Effective date: July 1, 2007
Proposal publication date: March 30, 2007
For further information, please call: (512) 438-3734
Subchapter E. ICF/MR PROGRAMS--CONTRACTING
The Health and Human Services Commission (HHSC), on behalf of the Department of Aging and Disability Services (DADS), adopts an amendment to §9.203, new §§9.281 - 9.295, and the repeal of §9.299 and §9.300 in Chapter 9, Subchapter E, ICF/MR Programs--Contracting. New §9.285 and §9.294 are adopted with changes to the proposed text published in the March 30, 2007, issue of the Texas Register (32 TexReg 1846). The amendment to §9.203; new §§9.281 - 9.284, 9.286 - 9.293, and 9.295; and the repeal of §9.299 and §9.300 are adopted without changes to the proposed text.
The amendment and new sections are adopted to place rules governing surrogate decision-making into Chapter 9, Subchapter E, with other rules governing providers in the Intermediate Care Facilities for Persons with Mental Retardation (ICF/MR) Program. The repeals of current surrogate decision-making rules in Chapter 6, Subchapter G, and in Chapter 8, Subchapter J, are adopted elsewhere in this issue of the Texas Register.
The amendment is adopted to add definitions of words and terms used in the new sections and reorders some of the definitions to place them in alphabetical order. The new sections are adopted to provide the state standards for community program providers with regard to surrogate decision-making, in accordance with Texas Health and Safety Code, Chapter 597.
The repeal of §9.299 and §9.300 is adopted to make Subchapter E more consistent with the majority of DADS rules, which do not include references to regulations and statutes or information about distributing copies of the completed rules.
DADS received written comments from the Coalition for Nurses in Advanced Practice (CNAP). A summary of the comments and the responses follow.
Comment: Concerning §9.203(42)(D) and (43)(D), the commenter stated that the language in these definitions, which indicates that the person is undergoing a major dental or medical treatment "in the opinion of the individual's physician," is inappropriately limiting and should acknowledge the opinion of the individual's advanced practice nurse and/or dentist.
Response: The agency declines to change the definition in §9.203(42)(D) or (43)(D) to reference an advanced practice nurse or dentist. The definitions are consistent with the definitions in Health and Safety Code, §597.001, which apply to surrogate decision-making.
Comment: Concerning §9.285(a)(1), which references the "prescribing physician," the commenter stated that, in some communities, psychoactive drugs are most frequently prescribed by psychiatric-mental health (PMH) nurse practitioners, PMH clinical nurse specialists, or other advanced nurse practitioners and clinical nurse specialists due to the lack of a psychiatrist. The commenter suggests changing "prescribing physician" to "prescribing practitioner" in the last line of §9.285(a)(1).
Response: The agency agrees that a psychoactive drug may be prescribed by someone other than a physician and, therefore, has substituted "physician" with "health care professional," a term also used in §9.290(a)(2)(A).
In addition, the agency changed §9.294(a) to delete the phrase "not more than" in reference to the number of days the chairperson of a surrogate consent committee must suspend a committee proceeding if the committee is informed that an application for a guardianship proceeding for an individual has been filed. This change will make §9.294(a) consistent with a related provision at §9.293(g).
Division 1. GENERAL REQUIREMENTS
The amendment is adopted 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, §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.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on June 7, 2007.
TRD-200702292
Kenneth L. Owens
General Counsel
Department of Aging and Disability Services
Effective date: July 1, 2007
Proposal publication date: March 30, 2007
For further information, please call: (512) 438-3734
The new sections are adopted 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, §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.
§9.285.IDT Decisions.
(a) An IDT may:
(1) consent to the following changes regarding administration of a psychoactive medication subsequent to the initial consent for the medication given by a surrogate consent committee, if such changes pose no significant risk to an individual based on the judgment of the prescribing health care professional and other health care professionals involved in the individual's care:
(A) an increase or decrease in the dosage of the medication; and
(B) a change of medication within the same therapeutic drug class; and
(2) make a decision that involves risk to the individual protection and rights not specifically reserved to a surrogate decision-maker or a surrogate consent committee.
(b) An IDT's consent to a change regarding the administration of a psychoactive medication, as described in subsection (a)(1) of this section, is only valid until the expiration of the initial consent by the surrogate consent committee.
(c) The IDT must document, in the individual's record, a decision made in accordance with subsection (a) of this section, including the deliberations of the IDT in reaching the decision.
§9.294.Notice of Guardianship Proceeding.
(a) If before a surrogate consent committee makes a treatment decision, the committee is informed that an application for a guardianship proceeding for an individual has been filed with a court, the chairperson of the committee must suspend the committee proceeding for five days unless a medical necessity exists that requires a treatment decision to be made during the five-day period.
(b) If the chairperson suspends a committee proceeding and a person has not been appointed guardian for the individual within five days after the suspension, the chairperson must resume the committee proceeding.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on June 7, 2007.
TRD-200702293
Kenneth L. Owens
General Counsel
Department of Aging and Disability Services
Effective date: July 1, 2007
Proposal publication date: March 30, 2007
For further information, please call: (512) 438-3734
The repeal is adopted 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, §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.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on June 7, 2007.
TRD-200702294
Kenneth L. Owens
General Counsel
Department of Aging and Disability Services
Effective date: July 1, 2007
Proposal publication date: March 30, 2007
For further information, please call: (512) 438-3734
Subchapter AA. VENDOR PAYMENT
The Health and Human Services Commission (HHSC), on behalf of the Department of Aging and Disability Services (DADS), adopts new §19.2613, in Chapter 19, Nursing Facility Requirements for Licensure and Medicaid Certification, without changes to the proposed text published in the March 30, 2007, issue of the Texas Register (32 TexReg 1856).
The new section is adopted to allow a nursing facility to procure an augmentative communication device system (ACD) for a Medicaid-eligible individual residing in a Medicaid- certified facility or a Medicaid-certified distinct part of a facility whose daily vendor rate is paid by Medicaid. The nursing facility must provide the ACD if the need for the ACD is identified and the nursing facility can receive reimbursement through a DADS voucher system. These devices have previously only been available for a Medicaid-eligible nursing facility recipient with personal funds or as an incurred medical expense.
DADS received no comments regarding adoption of the new section.
The new section is adopted 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, §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.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on June 8, 2007.
TRD-200702341
Kenneth L. Owens
General Counsel
Department of Aging and Disability Services
Effective date: July 1, 2007
Proposal publication date: March 30, 2007
For further information, please call: (512) 438-3734