Proposed Rules Title 40

TITLE 40. SOCIAL SERVICES AND ASSISTANCE

Part 1. DEPARTMENT OF AGING AND DISABILITY SERVICES

Chapter 6. ICF/MR PROGRAMS--CONTRACTING

Subchapter G. ADDITIONAL FACILITY RESPONSIBILITIES

40 TAC §6.301, §6.310

(Editor's note: The text of the following sections proposed for repeal will not be published.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.)

The Health and Human Services Commission (HHSC) proposes, on behalf of the Department of Aging and Disability Services (DADS), the repeal of Subchapter G, consisting of §6.301, concerning agreements with local school districts, and §6.310, concerning consent to treatment by surrogate decision-makers, in Chapter 6, ICF/MR (Intermediate Care Facilities for Persons with Mental Retardation or Related Conditions) Programs--Contracting.

Background and Purpose

The purpose of the repeal is to delete an obsolete rule from the DADS rule base and 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. HHSC, on behalf of DADS, is proposing a related repeal and new rules governing surrogate decision-making elsewhere in this issue of the Texas Register.

Section-by-Section Summary

The proposed repeal of §6.301 would 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school-age residents of ICFs/MR, which is summarized in subsection (a) and referenced specifically in §6.301(a)(3), was repealed by the 73rd Legislature, 1993, Regular Session. The Texas Education Agency rule referenced in §6.301(a)(3) has also been repealed.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.

Section 6.310, also proposed for repeal, requires community-based ICF/MR facilities to comply with DADS' surrogate decision-making rules. New proposed rules in Chapter 9, Subchapter E, Division 10, will require these facilities to comply with DADS' surrogate decision-making rules.

Fiscal Note

Gordon Taylor, DADS Chief Financial Officer, has determined that, for the first five years after the repeal, there are no foreseeable implications relating to costs or revenues of state or local governments.

Small Business and Micro-business Impact Analysis

DADS has determined that the proposed repeal will have no adverse economic effect on small businesses or micro-businesses, because the repeal does not impact business practices.

Public Benefit and Costs

Veronda Durden, DADS Assistant Commissioner for Regulatory Services, has determined that, for each year of the first five years after the repeal, the public benefit expected as a result of repealing the sections is that an obsolete rule will be removed from the DADS rule base and that the state standards governing surrogate decision-making will be found in one subchapter of the Texas Administrative Code with other state standards for ICF/MR Program providers.

Ms. Durden anticipates that there will not be an economic cost to persons who are affected by the repeal. The 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 Joanne Guard at (512) 438-3522 in DADS' Regulatory Services Division. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-050, Department of Aging and Disability Services W-615, P.O. Box 149030, Austin, Texas 78714-9030, or street address 701 West 51st St., Austin, TX 78751; faxed to (512) 438-5759; or e-mailed to rulescomments@dads.state.tx.us . To be considered, comments must be submitted no later than 30 days after the date of this issue of the Texas Register . The last day to submit comments falls on a Sunday; therefore, comments must be either (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered to DADS before 5:00 p.m. on DADS' last working day of the comment period; or (3) faxed or e-mailed by midnight on the last day of the comment period. When faxing or e-mailing comments, please indicate "Comments on Proposed Rule 050" in the subject line.

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 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.

The repeal affects Texas Government Code, §531.0055 and §531.021, and Texas Human Resources Code, §161.021.

§6.301.Agreements with Local School Districts.

§6.310.Consent to Treatment by Surrogate Decision-Makers.

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 March 14, 2007.

TRD-200701022

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: April 29, 2007

For further information, please call: (512) 438-4162

Chapter 8. CLIENT CARE--MENTAL RETARDATION SERVICES

Subchapter J. SURROGATE DECISION-MAKING FOR COMMUNITY-BASED ICF/MR AND ICF/MR/RC FACILITIES

40 TAC §§8.231 - 8.249

The Health and Human Services Commission (HHSC) proposes, on behalf of the Department of Aging and Disability Services (DADS), the repeal of Subchapter J, consisting of §§8.231 - 8.249, concerning surrogate decision-making for community-based intermediate care facilities for persons with mental retardation (ICF/MR) and intermediate care facilities for persons with mental retardation and related conditions (ICF/MR/RC), in Chapter 8, Client Care--Mental Retardation Services.

Background and Purpose

The purpose of the repeal is to facilitate the consolidation of the state standards for community-based ICF/MR and ICF/MR/RC program providers relating to surrogate decision-making into one subchapter of the Texas Administrative Code. The sections proposed for repeal also need updating to reflect current practices and terminology. HHSC, on behalf of DADS, is proposing a related repeal and new rules governing surrogate decision-making elsewhere in this issue of the Texas Register.

Section-by-Section Summary

The sections proposed for repeal govern the guiding principles and procedures for a community program provider to obtain a decision about certain specific treatments on behalf of a resident of an ICF/MR who lacks the capacity to make an informed decision about the treatment and who has no legal guardian. New rules in Chapter 9, Subsection E, Division 10, are being proposed concurrently to replace these sections proposed for repeal.

Fiscal Note

Small Business and Micro-business Impact Analysis

DADS has determined that the proposed repeal will have no adverse economic effect on small businesses or micro-businesses, because the repeal does not impact business practices.

Public Benefit and Costs

Veronda Durden, DADS Assistant Commissioner for Regulatory Services, has determined that, for each year of the first five years after the repeal, the public benefit expected as a result of repealing the sections is that the state standards governing surrogate decision-making will be found in one subchapter of the Texas Administrative Code with other state standards for ICF/MR program providers.

Ms. Durden anticipates that there will not be an economic cost to persons who are affected by the repeal. The repeal will not affect a local economy.

Takings Impact Assessment

Public Comment

Questions about the content of this proposal may be directed to Joanne Guard at (512) 438- 3522 in DADS' Regulatory Services Division. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-050, Department of Aging and Disability Services W-615, P.O. Box 149030, Austin, Texas 78714-9030, or street address 701 West 51st St., Austin, TX 78751; faxed to (512) 438-5759; or e-mailed to rulescomments@dads.state.tx.us . To be considered, comments must be submitted no later than 30 days after the date of this issue of the Texas Register . The last day to submit comments falls on a Sunday; therefore, comments must be either (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered to DADS before 5:00 p.m. on DADS' last working day of the comment period; or (3) faxed or e-mailed by midnight on the last day of the comment period. When faxing or e-mailing comments, please indicate "Comments on Proposed Rule 050" in the subject line.

Statutory Authority

The repeal affects Texas Government Code, §531.0055 and §531.021, and Texas Human Resources Code, §161.021.

§8.231.Purpose.

§8.232.Exclusions.

§8.233.Application.

§8.234.Definitions.

§8.235.Guiding Principles.

§8.236.Assessment of Capacity To Consent to Treatment.

§8.237.Appointment and Qualifications of a Surrogate Decision-Maker.

§8.238.Surrogate Decision-Maker Rights and Responsibilities.

§8.239.Interdisciplinary Team (IDT) Rights and Responsibilities as a Decision-Maker.

§8.240.Appointment and Qualifications of a Surrogate Consent Committee.

§8.241.Surrogate Consent Committee Responsibilities and Operating Guidelines.

§8.242.Review of an Application for a Treatment Decision.

§8.243.Consent Committee Coordination.

§8.244.Pre-review of Application.

§8.245.Notice of Application Review Meeting.

§8.246.Surrogate Consent Committee Meeting Proceedings.

§8.247.Notice of Determination.

§8.248.References.

§8.249.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 March 14, 2007.

TRD-200701023

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: April 29, 2007

For further information, please call: (512) 438-4162

Chapter 9. MENTAL RETARDATION SERVICES--MEDICAID STATE OPERATING AGENCY RESPONSIBILITIES

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), an amendment to §9.203, concerning definitions; new §§9.281 - 9.295, concerning surrogate decision-making; and the repeal of §9.299 and §9.300, concerning references and distribution, in Chapter 9, Subchapter E, ICF/MR Programs--Contracting.

Background and Purpose

The purpose of the amendment and new sections is 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. Surrogate decision-making is the process by which certain treatment decisions are made on behalf of an individual who resides in an ICF/MR, who lacks the capacity to make an informed decision about a proposed treatment, medication, or procedure, and who has no legally authorized representative (LAR). The process applies only to certain treatments, medications, and procedures as described in the proposed rules and only to community program providers (ICF/MR Program providers acting on behalf of an ICF/MR that is not on the grounds of a state school or state center with a mental retardation residential component). Surrogate decision- making is authorized under Texas Health and Safety Code, Chapter 597.

Currently, rules governing surrogate decision-making are located in Chapter 6, Subchapter G, and in Chapter 8, Subchapter J. The repeal of those rules is found elsewhere in this issue of the Texas Register.

The proposed new sections are similar to the sections that are proposed for repeal, except for the following: (1) Proposed new §9.287(b) provides a list of items related to surrogate decision-making that a community program provider must document in the individual's record. The documentation provision is a new requirement that does not appear in the current rules. (2) Proposed new §9.289 requires a community program provider to submit a complete application for a treatment decision by a surrogate consent committee in accordance with instructions from DADS, and provides the DADS website address for the instructions and required forms. Detailed information about the application, which appears in current §8.242(b), has been deleted as unnecessary. (3) Proposed new §9.290, in subsection (a)(1)(F), requires volunteers serving on a surrogate consent committee to complete a training program conducted by DADS. The more specific description of the training that appears in current §8.240(d)(1) has been deleted. (4) Proposed new §9.291, in subsections (a) and (b), shifts the responsibility for notifying surrogate consent committee members of the arrangements for a hearing from the facility, as required in current §8.243(d)(2) and §8.245(a)(1), to DADS.

Additionally, the proposed new sections do not include: (1) the guiding principles in current §8.235 as they are only advisory in nature, not binding; (2) the list of qualified persons from which a surrogate consent committee is drawn, which appears in current §8.240(d)(2), because the categories of persons listed are not exclusive; (3) the statement in current §8.241(b) that surrogate consent committees are not subject to the Administrative Procedure Act, the Open Meetings Law, and the Open Records Law, because the statement is not necessary; (4) a limit on a surrogate consent committee member's term, which appears in current §8.241(d) (therefore, under the proposed new sections, no approval from DADS will be necessary to serve as a committee volunteer for more than one year); (5) specific information in current §8.241(f) regarding the content of DADS' operating guidelines; (6) the requirement in current §8.243(b) that a surrogate consent committee be appointed within five working days of DADS' receipt and review of an application for a treatment decision; (7) the requirements in current §8.243(e) and §8.245(a)(4) to notify a pro bono attorney program of the intent to review an application for a treatment decision; and (8) the information in current §8.248 and §8.249 regarding references and distribution, to be consistent with other DADS rules.

Section-by-Section Summary

The amendment to §9.203 adds definitions of words and terms used in the proposed new sections and definitions, including "aversive stimulus," "campus-based facility," "community program provider," "effortful task," "exclusionary time-out," "highly restrictive procedure," "major dental treatment," "major medical treatment," "medical necessity," "negative practice," "personal hold," "physical restraint," "psychoactive medication," "required exercise," and "restitutional overcorrection." The amendment also reorders some of the definitions to place them in alphabetical order.

New Subchapter E, Division 10, consisting of §§9.281 - 9.295, provides the state standards for community program providers with regard to surrogate decision-making, in accordance with Texas Health and Safety Code, Chapter 597. New §9.281 governs the purpose of the new division, and new §9.282 states that the division applies only to a community program provider. New §9.283 governs the assessment a community program provider must conduct to determine whether an adult individual who does not have an LAR and who needs a certain specific treatment, medication, or procedure has the capacity to make an informed decision about the proposed treatment, medication, or procedure. New §9.284 governs the steps a community program provider must take after the provider, based on the assessment, has determined whether the individual has the capacity to make an informed decision. If the community program provider determines that the individual does not have the capacity to make an informed decision, the community program provider must obtain an informed decision from the individual's interdisciplinary team, a surrogate decision-maker, or a surrogate consent committee in accordance with new §§9.285 - 9.289.

New §§9.290 - 9.295 govern the composition and responsibilities of a surrogate consent committee. DADS appoints a surrogate consent committee if DADS approves an application packet from a community program provider for a treatment decision. The surrogate consent committee reviews the documentation concerning the individual and treatment for which a decision is sought and holds a hearing to review evidence, hear testimony, and interview and observe the individual. The new sections govern the procedures the committee must follow in conducting a hearing and making a treatment decision. New §9.294 also provides rules the surrogate consent committee must follow if an application for a guardianship proceeding for an individual is filed with a court before the committee makes a treatment decision.

The repeal of Subchapter E, Division 11, consisting of §9.299 and §9.300, will 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.

Fiscal Note

Gordon Taylor, DADS Chief Financial Officer, has determined that, for the first five years the proposed amendment, new sections, and repeal are in effect, enforcing or administering the amendment, new sections, and repeal 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, as a result of enforcing or administering the amendment, new sections, and repeal, because the proposal does not place any new requirements on businesses that would cause them to alter their business practices.

Public Benefit and Costs

Veronda Durden, DADS Assistant Commissioner for Regulatory Services, has determined that, for each year of the first five years the amendment, new sections, and repeal are in effect, the public benefit expected as a result of enforcing the new sections is that the state standards governing surrogate decision-making will be found in one subchapter of the Texas Administrative Code with other state standards for ICF/MR Program providers and that the rules will reflect current practices. The public benefit expected as a result of enforcing the amendment is that definitions for the terms used in the surrogate decision-making process will be available to the public. The public benefit of repealing the sections is that the subchapter will be more consistent with the majority of DADS rules.

Ms. Durden anticipates that there will not be an economic cost to persons who are required to comply with the amendment, new sections, and repeal. The amendment, new sections, and repeal will not affect a local economy.

Takings Impact Assessment

Public Comment

Questions about the content of this proposal may be directed to Joanne Guard at (512) 438-3522 in DADS' Regulatory Services Division. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-050, Department of Aging and Disability Services W-615, P.O. Box 149030, Austin, Texas 78714-9030, or street address 701 West 51st St., Austin, TX 78751; faxed to (512) 438-5759; or e-mailed to rulescomments@dads.state.tx.us . To be considered, comments must be submitted no later than 30 days after the date of this issue of the Texas Register. The last day to submit comments falls on a Sunday; therefore, comments must be either (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered to DADS before 5:00 p.m. on DADS' last working day of the comment period; or (3) faxed or e-mailed by midnight on the last day of the comment period. When faxing or e-mailing comments, please indicate "Comments on Proposed Rule 050" in the subject line.

DIVISION 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; 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.

The amendment affects Texas Government Code, §531.0055 and §531.021, and Texas Human Resources Code, §161.021.

§9.203.Definitions.

The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise:

(1) (No change.)

(2) Actively involved--Significant, ongoing, and supportive involvement with an individual by a person, as determined by the individual's IDT, based on the person's:

(A) interactions with the individual;

(B) availability to the individual for assistance or support when needed; and

(3) Adult--A person who is 18 years of age or older.

(4) [~~(2)~~] Affiliate--An employee or independent contractor of a provider applicant or a person with a significant financial interest in a provider applicant including, but not limited, to the following:

(A) if the provider applicant is a corporation, then each officer, director, stockholder with an ownership of at least 5%, subsidiary, and parent company;

(B) if the provider applicant is a limited liability company, then each officer, member, subsidiary, and parent company;

(C) if the provider applicant is an individual, then the individual's spouse, each partnership and each partner thereof of which the individual is a partner and each corporation in which the individual is an officer, director, or stockholder with an ownership of at least 5%;

(D) if the provider applicant is a partnership, then each partner and parent company; or

(E) if the provider applicant is a group of co-owners under any other business arrangement, then each owner, officer, director, or the equivalent thereof under the specific business arrangement, and each parent company.

(5) [~~(3)~~] Applicant--A person seeking enrollment in the ICF/MR Program or seeking admission to a facility.

(6) [~~(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 and depends on the individual's earned and unearned income.

(7) [~~(5)~~] Assignment--The transfer of rights, interests, and obligations of the program provider agreement from the program provider to another person.

(8) Aversive stimulus--A stimulus that is unpleasant, noxious, startling, or painful; is applied after an inappropriate behavior; and is intended to suppress the inappropriate behavior.

(9) [~~(6)~~] Behavior intervention plan--A written plan prescribing the systematic application of behavioral techniques regarding an individual that, at a minimum, contains:

(A) reliable and representative baseline data regarding the targeted behavior;

(B) a specific objective to decrease or eliminate the targeted behavior;

(D) detailed procedures for implementing the plan;

(E) ongoing, written quantitative data of the targeted behavior;

(F) written descriptions of incidents of the targeted behavior including the individual's actions and staff interventions;

(G) methods for evaluating plan effectiveness;

(H) procedures for making necessary plan revisions at least annually; and

(I) a fading process for one-to-one supervision, if the individual is assigned an LON 9.

(10) [~~(7)~~] Budgeted amount--The amount of cash that may be disbursed to an individual at regular intervals, e.g., weekly, monthly, for discretionary spending without obtaining a sales receipt for the expenditure.

[~~(8)~~ ~~Actively involved--Significant and ongoing involvement with an individual that the individual's planning team deems to be supportive based on the following:~~]

[~~(A)observed interactions of the person with the individual;~~]

[~~(B)~~ ~~advocacy for the individual;~~]

[~~(C)~~ ~~knowledge of and sensitivity to the individual's preferences, values and beliefs; and~~]

[~~(D)~~ ~~availability to the individual for assistance or support when needed.~~ ]

(11) Campus-based facility--A facility that is located on the grounds of a state school or state center with a mental retardation residential component.

(12) [~~(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.

(13) [~~(10)~~] Certified capacity--The maximum number of individuals who may reside in a facility, as set forth in the facility's provider agreement.

(14) [~~(11)~~] CFR (Code of Federal Regulations)--The compilation of federal agency regulations.

(15) [~~(12)~~] Community MHMR Center--A community mental health and mental retardation center established under the THSC, Chapter 534.

(16) Community program provider--A program provider acting on behalf of a facility that is not a campus-based facility.

(17) [~~(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.

(18) [~~(14)~~] DADS--The Department of Aging and Disability Services.

(19) [~~(15)~~] Day--Calendar day, unless otherwise specified.

(20) [~~(16)~~] Department--Department of Aging and Disability Services.

(21) [~~(17)~~] 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 of this subchapter (relating to Leaves).

(22) [~~(18)~~] DPoC (directed plan of correction)--A plan developed by DADS' 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.

(23) Effortful task--A task directed by staff that requires physical effort by an individual performed after an inappropriate behavior, including required exercise, negative practice, and restitutional overcorrection.

(24) [~~(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;

(D) an individual being moved from his residence to protect the individual (for example, because of a hurricane, fire, or flood).

(25) [~~(20)~~] 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).

(26) Exclusionary time-out--A procedure by which an individual is, after an inappropriate behavior, placed alone in an enclosed area in which positive reinforcement is not available and from which egress is physically prevented by staff until appropriate behavior is exhibited.

(27) [~~(21)~~] Facility--An intermediate care facility for persons with mental retardation or a related condition.

(28) [~~(22)~~] 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.

(29) [~~(23)~~] Full day--A 24-hour period extending from midnight to midnight.

(30) Highly restrictive procedure--The application of an aversive stimulus, exclusionary time-out, physical restraint, a requirement to engage in an effortful task, or other technique with a similar degree of restriction or intrusion to manage an individual's inappropriate behavior.

(31) [~~(24)~~] Hospice--An entity that is primarily engaged in providing care to terminally ill individuals and is approved by DADS to participate in the Medicaid Hospice Program in accordance with §30.30 of this title (relating to General Contracting Requirements).

(32) [~~(25)~~] 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.

(33) [~~(26)~~] 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.

(34) [~~(27)~~] 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.

(35) Individual--A person enrolled in the ICF/MR Program.

(36) [~~(28)~~] 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.

[~~(29)~~ ~~Individual--A person enrolled in the ICF/MR Program.~~]

(37) [~~(30)~~] IQ (intelligence quotient)--A score reflecting the level of an individual's intelligence as determined by the administration of a standardized intelligence test.

(38) [~~(31)~~] 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.

(39) [~~(32)~~] LOC (level of care)--A determination given by DADS to an individual as part of the eligibility process based on data submitted on the MR/RC Assessment.

(40) [~~(33)~~] LON (level of need)--An assignment given by DADS to an individual upon which reimbursement for ICF/MR Program services 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.

(41) [~~(34)~~] Long Term Care Plan for People with Mental Retardation and Related Conditions--The plan required by THSC, §533.062, which is developed by DADS and specifies, in part, the capacity of the ICF/MR Program in Texas.

(42) Major dental treatment--A dental treatment, intervention, or diagnostic procedure that:

(A) has a significant recovery period;

(B) presents a significant risk;

(D) in the opinion of the individual's physician, involves a significant invasion of bodily integrity that requires an incision or the extraction of bodily fluids that produces substantial pain, discomfort, or debilitation.

(43) Major medical treatment--A medical, surgical, or diagnostic procedure or intervention that:

(A) has a significant recovery period;

(B) presents a significant risk;

(44) Medical necessity--The need for a treatment decision that is essential to avoid adversely affecting an individual's mental or physical health or the quality of care rendered.

(45) Mental retardation--Significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the developmental period.

(46) [~~(35)~~] 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.

(47) [~~(36)~~] MR/RC (Mental Retardation/Related Condition) Assessment--A form used by DADS for LOC determination and LON assignment.

[~~(37)~~ ~~Mental retardation--Significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the developmental period.~~]

(48) [~~(38)~~] 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.

(49) egative practice--A procedure in which an individual is required, after an inappropriate behavior, to repeatedly engage in an activity that is similar to the inappropriate behavior.

(50) [~~(39)~~] NHIC--Formerly, this term referred to the National Heritage Insurance Company; it now refers to the Texas Medicaid and Health Partnership.

(51) [~~(40)~~] Non-state operated facility--A facility for which the program provider is an entity other than DADS, such as a community MHMR center or private organization.

(52) [~~(41)~~] 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.

(53) [~~(42)~~ ] 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.

(54) [~~(43)~~] Permanency Planning Review Screen--A screen in CARE that, when completed by an MRA, 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.

(55) [~~(44)~~] Personal funds--The funds that belong to an individual, including earned income, social security benefits, gifts, and inheritances.

(56) Personal hold--

(A) A manual method, except for physical guidance or prompting of brief duration, used to restrict:

(i) 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 physical restraint if the individual resists the guidance or prompting.

(57) [~~(45)~~] Petty cash fund--Personal funds managed by a program provider that are maintained for individuals' cash expenditures.

(58) Physical restraint--A manual method, or a physical or mechanical device, material, or equipment attached or adjacent to an individual's body that the individual cannot remove easily, that restricts freedom of movement or normal access to an individual's body. This term includes a personal hold.

(59) [~~(46)~~] Pooled account--A trust fund account containing the personal funds of more than one individual.

(60) [~~(47)~~] Professional--A person who is licensed or certified by the State of Texas in a health or human services occupation or who meets DADS' criteria to be a case manager, service coordinator, qualified mental retardation professional, or TDMHMR-certified psychologist as defined in §5.161 of this title (relating to TDMHMR-Certified Psychologist [~~TDMHMR-certified psychologist~~]).

(61) [~~(48)~~] Program provider--An entity with whom DADS has a provider agreement.

(62) [~~(49)~~] Provider agreement--A written agreement between DADS and a program provider that obligates the program provider to deliver ICF/MR Program services.

(63) [~~(50)~~] Provider applicant--An entity seeking to participate as a program provider.

(64) Psychoactive medication--Any medication prescribed for the treatment of symptoms of psychosis or other severe mental or emotional disorders and that is used to exercise an effect upon the central nervous system for the purposes of influencing and modifying behavior, cognition, or affective state.

(65) [~~(51)~~] Related condition--As defined in 42 CFR [~~the Code of Federal Regulations (CFR), Title 42,~~ ] §435.1009, a severe and chronic disability that:

(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;

(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.

(66) Required exercise--A procedure in which an individual, after an inappropriate behavior, performs or is guided by staff to perform a series of physical movements that are incompatible with the inappropriate behavior.

(67) Restitutional overcorrection--A procedure in which an individual is required to correct the consequences of an inappropriate behavior by performing a task that improves the individual's environment.

(68) [~~(52)~~] Sales receipt--A written statement issued by the seller that includes:

(A) the date it was created; and

(B) the cost of the item or service.

(69) [~~(53)~~] Sanction team--A group of professionals assembled and employed by DADS that is overseen by the Health and Human Services Commission to ensure consistency in its determinations.

(70) [~~(54)~~] Separate account--A trust fund account containing the personal funds of only one individual.

(71) [~~(55)~~] 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.

(72) [~~(56)~~] State-operated facility--A facility for which DADS is the program provider.

(73) [~~(57)~~] 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.

(74) [~~(58)~~] 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.

(75) [~~(59)~~] THSC (Texas Health and Safety Code)--Texas statutes relating to health and safety.

(76) [~~(60)~~] Trust fund account--An account at a financial institution in the program provider's control that contains personal funds.

(77) [~~(61)~~] 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.

(78) [~~(62)~~] Unidentified personal funds--Personal funds managed by the program provider for which the program provider cannot identify ownership.

(79) [~~(63)~~] USC (United States Code)--A compilation of statutes enacted by the United States Congress.

(80) [~~(64)~~] Vendor hold--Temporary suspension of ICF/MR payments from DADS to a program provider.

(81) [~~(65)~~] Working day--A day when an MRA's administrative offices are open.

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 March 14, 2007.

TRD-200701024

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: April 29, 2007 p> For further information, please call: (512) 438-4162

DIVISION 10. SURROGATE DECISION-MAKING

40 TAC §§9.281 - 9.295

Statutory Authority

The 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 Health and Safety Code, Chapter 597, which governs treatment decisions for an individual without a legal guardian who resides in an ICF/MR facility and who lacks capacity to make an informed decision about the proposed treatment.

The new sections affect Texas Government Code, §531.0055 and §531.021, and Texas Human Resources Code, §161.021.

§9.281.Purpose.

(a) The purpose of this division is to describe a process by which certain treatment decisions are made by an IDT, surrogate decision-maker, or surrogate consent committee on behalf of an individual who lacks the capacity to make an informed decision about the proposed treatment, medication, or procedure and has no LAR. A treatment decision involves giving or denying consent for a treatment, medication, or procedure for an individual.

(b) The process described in this division applies only to a treatment decision for an individual regarding:

(1) the use of a psychoactive medication;

(2) a highly restrictive procedure;

(3) major medical treatment;

(4) major dental treatment;

(5) a risk to individual protection and rights; or

(6) the release of records related to the individual's condition or treatment to facilitate the treatment to which a surrogate decision-maker or surrogate consent committee has consented.

(1) experimental research;

(2) sterilization:

(3) management of funds;

(4) electroconvulsive treatment; or

(5) abortion.

§9.282.Application.

This division applies to a community program provider. It does not apply to a program provider acting on behalf of a campus-based facility.

§9.283.Informed Decision Assessment.

(a) If a community program provider is seeking a decision regarding any of the matters described in §9.281(b)(1) - (5) of this division (relating to Purpose) for an adult individual who does not have an LAR, the community program provider must conduct an assessment of the individual to determine whether the individual has the capacity to make an informed decision.

(b) To conduct the assessment, the community program provider must:

(1) provide the following information to the individual:

(A) a description of the condition that the proposed treatment, medication, or procedure is intended to improve or cure;

(B) a description of the proposed treatment, medication, or procedure, including:

(i) the individual's need for it; and

(ii) the potential benefits and risks of it to the individual;

(C) a description of any generally accepted alternatives to the proposed treatment, medication, or procedure, including the risks and potential benefits of the alternatives to the individual;

(D) the reasons the alternatives were not proposed for the individual, if applicable;

(E) the time frames involved, such as immediacy of the need for the proposed treatment, medication, or procedure and the length of time that consent will be effective; and

(F) that the individual has the right to refuse to give consent or withdraw consent;

(2) take into consideration the individual's values and beliefs; and

(3) determine whether the individual has the capacity to make an informed decision by demonstrating a basic understanding of the information provided in paragraph (1) of this subsection and communicating a decision, free from coercion or undue influence, about the proposed treatment, medication, or procedure.

(c) The community program provider must provide the information described in subsection (b)(1) of this section in non-technical terminology by using the individual's primary language or mode of communication.

(d) The community program provider must document the following:

(1) the specific information provided to the individual as described in subsection (b)(1) of this section; and

(2) the reasons the community program provider determined that the individual does or does not have the capacity to make an informed decision.

§9.284.Making Informed Decisions.

(a) If, based on the assessment described in §9.283 of this division (relating to Informed Decision Assessment), a community program provider determines that an individual has the capacity to make an informed decision and to communicate the decision, free from coercion or undue influence, about the proposed treatment, medication, or procedure, the community program provider must allow the individual to consent to or refuse the proposed treatment, medication, or procedure.

(b) If, based on the assessment described in §9.283 of this division, the community program provider determines that the individual does not have the capacity to make an informed decision about the proposed treatment, medication, or procedure, the community program provider must obtain an informed decision from:

(1) the individual's IDT, in accordance with §9.285 of this division (relating to IDT Decisions);

(2) a surrogate decision-maker in accordance with §9.286 of this division (relating to Surrogate Decision-Maker); or

(3) a surrogate consent committee in accordance with §9.288 of this division (relating to Surrogate Consent Committee Decisions), §9.289 of this division (relating to Submission of Application Packet for Surrogate Consent Committee), §9.291 of this division (relating to Notice of Hearing and Documents Provided to Surrogate Consent Committee), and §9.293 of this division (relating to Surrogate Consent Committee Hearing).

§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 physician 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.

§9.286.Surrogate Decision-Maker.

(a) A community program provider must develop and implement written procedures for identifying and using a surrogate decision-maker in accordance with the provisions of this division.

(b) A surrogate decision-maker may:

(1) consent to major medical treatment;

(2) consent to major dental treatment;

(3) consent to release of records related to the individual's condition or treatment to facilitate the treatment to which the surrogate decision-maker has consented; and

(4) make a decision that involves risk to individual protection and rights.

(d) If, based on the assessment described in §9.283 of this division (relating to Informed Decision Assessment), a community program provider determines that an individual does not have the capacity to make an informed decision about matters listed in subsection (b) of this section, the community program provider must determine if one of the following persons, in order of descending preference, is available and willing to act as the surrogate decision-maker for the individual:

(1) an actively involved spouse;

(2) an actively involved adult child who has the waiver and consent of all other actively involved adult children of the individual to act as the sole decision-maker;

(3) an actively involved parent or stepparent;

(4) an actively involved adult sibling who has the waiver and consent of all other actively involved adult siblings of the individual to act as the sole decision-maker; or

(5) any other actively involved adult relative who has the waiver and consent of all other actively involved adult relatives of the individual to act as the sole decision-maker.

(e) If a community program provider is aware of a dispute as to the right of a person to act as a surrogate decision-maker, the community program provider must inform the persons involved that the dispute may be resolved only by a court of record under the Texas Probate Code, Chapter XIII.

(f) If a community program provider identifies a person to be a surrogate decision-maker in accordance with subsection (d) of this section, the community program provider must document the identity of that person in the individual's record.

(g) If a community program provider is unable to identify a surrogate decision-maker in accordance with subsection (d) of this section, including because of an unresolved dispute, the community program provider must document the reason the community program provider was unable to identify a surrogate decision-maker.

§9.287.Provider Responsibilities Regarding Surrogate Decision-Maker.

(a) A community program provider must provide the following information to a person identified as a surrogate decision-maker in accordance with §9.286 of this division (relating to Surrogate Decision-Maker):

(1) a description of the condition that the proposed treatment, medication, or procedure is intended to improve or cure;

(2) a description of the proposed treatment, medication, or procedure, including:

(A) the individual's need for it; and

(B) the potential benefits and risks of it to the individual;

(3) a description of any generally accepted alternatives to the proposed treatment, medication, or procedure, including the risks and potential benefits of the alternatives to the individual;

(4) the reasons the alternatives were not proposed for the individual, if applicable;

(5) the time frames involved, such as immediacy of the need for the proposed treatment, medication, or procedure and the length of time that consent will be effective; and

(6) that the surrogate decision-maker may:

(A) refuse to give consent or withdraw consent after it is given;

(B) defer to a surrogate consent committee for a specific decision; and

(b) A community program provider must document in the individual's record:

(1) the specific information provided to the surrogate decision-maker as described in subsection (a) of this section;

(2) the decision made by the surrogate decision-maker, and:

(A) if consent is given, include a copy of the written consent given by the surrogate decision- maker; or

(B) if consent is denied, document the reason for the denial, if known;

(3) withdrawal of consent after it is given by the surrogate decision-maker and, if known, the reason for the withdrawal;

(4) deferral by the surrogate decision-maker for a specific decision and, if known, the reason for the deferral; and

(5) withdrawal of the surrogate decision-maker and, if known, the reason for the withdrawal.

§9.288.Surrogate Consent Committee Decisions.

A surrogate consent committee may:

(1) consent to the use of a psychoactive medication;

(2) consent to the use of a highly restrictive procedure;

(3) consent to major medical treatment;

(4) consent to major dental treatment;

(5) make a decision that involves risk to individual protection and rights; and

(6) consent to release of records related to the individual's condition or treatment to facilitate the treatment to which the surrogate consent committee has consented.

§9.289.Submission of Application Packet for Surrogate Consent Committee.

(a) A community program provider must submit an application packet for a treatment decision by a surrogate consent committee, as described in §9.288 of this division (relating to Surrogate Consent Committee Decisions), if:

(1) the community program provider is unable to identify a surrogate decision-maker in accordance with §9.286(d) of this division (relating to Surrogate Decision-Maker), including because of an unresolved dispute described in §9.286(e) of this division;

(2) an identified surrogate decision-maker has deferred a specific decision to the surrogate consent committee; or

(3) the community program provider is seeking a decision regarding the use of a psychoactive medication or a highly restrictive procedure.

(b) A community program provider must submit an application packet for a treatment decision in accordance with written instructions from DADS. The application packet must include:

(1) a completed, original SDM Form 2700, Application for a Treatment Decision by a Surrogate Consent Committee;

(2) a completed, original SDM Form 2725, List of Persons to Receive Notification of SCC Hearing;

(3) a completed, original SDM Form 2750, SDM Data Form;

(4) the applicable certification of need form; and

(5) appropriate supporting documentation.

(c) The instructions and forms described in subsection (b) of this section are available on the DADS website at www.dads.state.tx.us.

(d) Upon request by DADS, the community program provider must submit additional information related to the application packet for a treatment decision.

(e) If DADS determines that the community program provider has not completed the application process within a reasonable period of time, DADS does not proceed with the application process and closes the case.

(f) If DADS closes the case and a treatment decision is still required in accordance with subsection (a) of this section, the community program provider must submit a new application packet in accordance with subsection (b) of this section.

(g) DADS notifies the community program provider, in writing, if DADS closes the case.

(h) If DADS approves an application packet for a treatment decision, DADS appoints a surrogate consent committee in accordance with §9.290 of this division (relating to Appointment and Qualifications of a Surrogate Consent Committee).

§9.290.Appointment and Qualifications of a Surrogate Consent Committee.

(a) If DADS approves an application packet for a treatment decision, DADS appoints a surrogate consent committee that:

(1) is composed of at least three but not more than five volunteers who:

(A) are 18 years of age or older;

(B) are not employees or contractors of the community program provider;

(i) the community program provider or the employees of the community program provider; or

(ii) any company, corporation, or other legal entity that manages or exercises control over the community program provider or the employees of the community program provider;

(D) do not have a financial interest in the community program provider or in any company, corporation, or other legal entity that has a financial interest in the community program provider;

(E) are not parents, siblings, spouses, or children of the individual for whom a treatment decision is being sought; and

(F) have completed a training program conducted by DADS; and

(2) includes at least one volunteer who:

(A) is a health care professional who is licensed or registered in Texas and who has specialized training in medicine, psychopharmacology, nursing, or psychology; or

(B) has demonstrated expertise or interest in the care and treatment of individuals with mental retardation.

(b) DADS appoints one of the volunteers on the surrogate consent committee to be chairperson of the committee.

§9.291.Notice of Hearing and Documents Provided to Surrogate Consent Committee.

(a) DADS sends notice of a surrogate consent committee hearing to:

(1) each volunteer on the surrogate consent committee; and

(2) the community program provider.

(b) The notice described in subsection (a) of this section includes:

(1) the date, time, and location of the hearing;

(2) the name of the individual for whom a treatment decision is sought; and

(3) the type of treatment decision to be considered at the hearing.

(c) DADS sends each volunteer on the surrogate consent committee, in addition to the notice of hearing described in subsection (a) of this section:

(1) relevant portions of the application packet; and

(2) a written consultation from a DADS health care professional licensed or registered in Texas to assist the committee in determining the individual's best interest regarding the treatment decision.

(d) A community program provider must give notice of the surrogate consent committee hearing to:

(1) the individual for whom a treatment decision is being sought;

(2) the individual's actively involved spouse, adult child, parent, adult sibling, stepparent, or other adult relative; and

(3) any person known to have a demonstrated interest in the care and welfare of the individual, such as an advocate or a friend identified by the individual.

(e) Concerning a notice required by subsection (d)(1) of this section, a community program provider must:

(1) include in the notice:

(A) the date, time, and location of the hearing; and

(B) the type of treatment decision to be considered at the hearing;

(2) explain the notice to the individual using the individual's primary language or mode of communication; and

(3) document that the explanation required in paragraph (2) of this subsection was given.

(f) Concerning a notice required by subsection (d)(2) and (3) of this section, a community program provider must:

(1) include in the notice:

(A) the date, time, and location of the hearing;

(B) the name of the individual for whom a treatment decision is sought;

(D) a copy of the completed, original SDM Form 2700, Application for a Treatment Decision by a Surrogate Consent Committee; and

(E) a statement concerning the opportunity to:

(i) attend the hearing and present evidence or testimony personally or through a representative; and

(ii) appeal the surrogate consent committee's decision in accordance with THSC, §597.053; and

(2) send the notice in writing and by certified mail.

§9.292.Review and Consultation Prior to Hearing.

(a) Before a surrogate consent committee hearing, the chairperson of the committee must review the documentation described in §9.291(c) of this division (relating to Notice of Hearing and Documents Provided to Surrogate Consent Committee) and determine if additional information is needed to assist the committee in making a treatment decision.

(b) If the chairperson determines that additional information is needed, the chairperson must request the information from DADS.

(c) Before the hearing, a volunteer on the surrogate consent committee may interview and observe the individual for whom the treatment decision is sought and consult with a person who may be able to provide information to assist the committee in making the treatment decision, including information about the personal opinions, beliefs, and values of the individual.

§9.293.Surrogate Consent Committee Hearing.

(a) A person notified of a surrogate consent committee hearing, as required by §9.291(a) and (d) of this division (relating to Notice of Hearing and Documents Provided to Surrogate Consent Committee), is entitled to be present at the hearing and to present evidence or testimony personally or through a representative.

(b) A community program provider must ensure that:

(1) the individual for whom the treatment decision is sought is present at the hearing, if practicable;

(2) the individual's record is at the hearing; and

(3) an audio recording of the hearing is made.

(1) must review the documentation described in §9.291(c) of this division and any additional information provided to the committee by DADS;

(2) must interview and observe the individual, if practicable, and document its impressions of the interview and observation;

(3) must review evidence or hear testimony from a person notified of the hearing as required by §9.291(a) and (d) of this division, or the person's representative, if the person or the person's representative makes a request to present evidence or testimony at the hearing; and

(4) may review evidence or hear testimony from any person who may be able to assist the committee in making a treatment decision.

(d) After the surrogate consent committee has reviewed all evidence and heard all testimony, the committee must enter into closed deliberations and make the treatment decision.

(e) In making the treatment decision, the surrogate consent committee must determine, based on clear and convincing evidence, whether the proposed treatment, medication, or procedure is in the best interest of the individual.

(1) If a majority of the volunteers on the surrogate consent committee determine that the proposed treatment, medication, or procedure is in the best interest of the individual, the committee must consent to the proposed treatment, medication, or procedure.

(2) If a majority of the volunteers on the surrogate consent committee determine that the proposed treatment, medication, or procedure is not in the best interest of the individual, the committee must deny consent to the proposed treatment, medication, or procedure.

(f) If the surrogate consent committee consents to the proposed treatment, medication, or procedure, the committee must determine the date on which the consent becomes effective and the duration of the consent.

(g) If an application for a guardianship proceeding for the individual has been filed before the surrogate consent committee makes a treatment decision, the committee must, before continuing with the hearing, make one of the following determinations:

(1) a person has not been appointed guardian of the person for the individual within five days after suspension of the committee proceeding in accordance with §9.294 of this division (relating to Notice of Guardianship Proceeding); or

(2) there is a medical necessity, based on clear and convincing evidence, that the treatment decision be made within five days after the hearing date.

(h) Formal rules of evidence are not applicable to a surrogate consent committee hearing.

(i) A surrogate consent committee must conduct the hearing and document its treatment decision in accordance with written instructions from DADS available at www.dads.state.tx.us.

(j) A community program provider must:

(1) send to DADS in accordance with written instructions from DADS available at www.dads.state.tx.us:

(A) the audio recording of a hearing made in accordance with subsection (b) of this section;

(B) the documentation completed by the surrogate consent committee; and

(2) send to a person notified of a surrogate consent committee hearing, as required by §9.291(a) and (d) of this division, the documentation completed by the surrogate consent committee.

§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 not more than 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.

§9.295.Liability for Treatment Decision.

A surrogate decision-maker or volunteer on a surrogate consent committee who consents or denies consent on behalf of an individual and who acts in good faith, reasonably, and without malice is not criminally or civilly liable for that action.

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 March 14, 2007.

TRD-200701025

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: April 29, 2007

For further information, please call: (512) 438-4162

DIVISION 11. REFERENCES AND DISTRIBUTION

40 TAC §9.299, §9.300

Statutory Authority

The repeal affects Texas Government Code, §531.0055 and §531.021, and Texas Human Resources Code, §161.021.

§9.299.References.

§9.300.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 March 14, 2007.

TRD-200701026

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: April 29, 2007

For further information, please call: (512) 438-4162

Chapter 19. NURSING FACILITY REQUIREMENTS FOR LICENSURE AND MEDICAID CERTIFICATION

Subchapter AA. VENDOR PAYMENT

40 TAC §19.2613

The Health and Human Services Commission (HHSC) proposes, on behalf of the Department of Aging and Disability Services (DADS), new §19.2613, concerning augmentative communication device systems, in Chapter 19, Nursing Facility Requirements for Licensure and Medicaid Certification.

Background and Purpose

The purpose of the proposed new section is 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.

Section-by-Section Summary

Proposed new §19.2613 adds the requirements that a nursing facility must follow to obtain DADS reimbursement for purchasing an ACD for a Medicaid recipient. The proposed new section requires the nursing facility to obtain prior authorization from DADS before purchasing the ACD. The request for prior authorization must include an evaluation from a licensed speech therapist, an attestation from the recipient's attending physician that the ACD is medically necessary, and a minimum of two bids unless the nursing facility requests an exception because the ACD is only available from one vendor. DADS will complete an independent review to determine necessity for an ACD costing more than $10,000. After receiving prior approval, the nursing facility is required to purchase the ACD. If alternative funding sources are available, the nursing facility must explore and use the alternative funding. The nursing facility must send the receipt of payment and a copy of the prior authorization to receive reimbursement from DADS. The nursing facility must submit the request for reimbursement within one year after the date of purchase of the ACD. DADS will reimburse the amount of the authorized bid or the remaining balance when alternative funding is used. If the nursing facility fails to obtain prior authorization or submit the necessary documentation, the nursing facility is responsible for the cost of the ACD. The recipient can request a Medicaid fair hearing if DADS denies a prior authorization request. The proposed new section also specifies that the ACD is the personal property of the recipient and that the nursing facility is responsible for repair and maintenance of the ACD.

Fiscal Note

Gordon Taylor, DADS Chief Financial Officer, has determined that, for the first five years the proposed new section is 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 new section is in effect is an estimated additional cost of $98,050 in Fiscal Year (FY) 2007; $147,075 in FY 2008; $147,075 in FY 2009; $147,075 in FY 2010; and $147,075 in FY 2011.

Small Business and Micro-business Impact Analysis

DADS has determined that there is no adverse economic effect on small businesses or micro- businesses as a result of enforcing or administering the new section, because the nursing facility will be able to obtain reimbursement for the ACD if the required documentation and assessments are provided to DADS.

Public Benefit and Costs

Barry Waller, DADS Assistant Commissioner for Provider Services, has determined that, for each year of the first five years the proposed new section is in effect, the public benefit expected as a result of enforcing the new section is that a nursing facility will be able to obtain an ACD as needed for Medicaid-eligible nursing facility recipients since the facility will be reimbursed by DADS and not through personal funds or as an incurred medical expense.

Mr. Waller anticipates that there will not be an economic cost to persons who are required to comply with the proposed new section. The new section will not affect a local economy.

Takings Impact Assessment

Public Comment

Questions about the content of this proposal may be directed to Owen Wheeler at (512) 438-4385 in DADS' Institutional Services Policy Development and Support Unit. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-038, Department of Aging and Disability Services W-615, P.O. Box 149030, Austin, TX 78714-9030 or street address 701 West 51st St., Austin, TX 78751; faxed to (512) 438-5759; or e-mailed to rulescomments@dads.state.tx.us . To be considered, comments must be submitted no later than 30 days after the date of this issue of the Texas Register . The last day to submit comments falls on a Sunday; therefore, comments must be either: (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered to DADS before 5:00 p.m. on DADS' last working day of the comment period; or (3) faxed or e-mailed by midnight on the last day of the comment period. When faxing or e-mailing comments, please indicate "Comments on Proposed Rule 038" in the subject line.

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, §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.

The new section affects Texas Government Code, §531.0055 and §531.021; and Texas Human Resources Code, §161.021.

§19.2613.Augmentative Communication Device Systems.

(a) A specialized augmentative communication device system (ACD), also referred to as a speech-generating device system, is reimbursable if purchased by a facility for a Medicaid recipient and all criteria defined in this section are met. A physician and a licensed speech therapist must determine a recipient needs the ACD, and the facility must obtain DADS' approval of the request for reimbursement.

(b) A facility must request and receive prior authorization from DADS before purchasing the ACD. The request for prior authorization must include:

(1) an evaluation and recommendation from a licensed speech therapist to purchase the ACD;

(2) an attestation from the recipient's attending physician that the ACD is medically necessary for the recipient to maximize his functional communication within the facility's environment; and

(3) a minimum of two bids for the ACD or a request for an exception to the two-bid minimum if the recommended ACD is only available through one vendor.

(1) a description of how the ACD will specifically meet the need of the recipient;

(2) detailed instructions for training on the use of the ACD for the recipient, facility staff, and family (if applicable);

(3) a diagnosis relevant to the need for the ACD; and

(4) the specific ACD being recommended.

(d) If an ACD costs more than $10,000, DADS will facilitate an independent speech language review, at DADS' expense, to determine necessity for the ACD.

(e) After receiving prior authorization from DADS, the facility must purchase the ACD.

(f) To obtain reimbursement from DADS, a facility must submit to DADS the receipt for payment for the ACD and a copy of the approved prior authorization.

(1) A facility must fully explore and use other funding sources to pay for an ACD before submitting the request for reimbursement to DADS. If another funding source will pay for part of the ACD expense, the facility may request reimbursement for the balance if the requirements in subsections (b) and (c) of this section are met. If another funding source is available, DADS reimburses only up to the remaining balance after other sources are fully utilized.

(2) A facility must submit the request for reimbursement within one year after the date of purchase.

(3) DADS reimburses the amount of the authorized bid or the remaining balance after all other sources are fully utilized.

(g) If DADS denies a request for reimbursement because the facility failed to obtain prior authorization or submit the necessary documentation for the ACD, the facility is responsible for the cost of the ACD.

(h) If DADS denies a prior authorization request, the recipient may request a Medicaid fair hearing in accordance with 1 TAC Chapter 357, Subchapter A.

(i) Only the recipient can use the ACD, and it must be identified as the personal property of the recipient.

(1) Upon discharge from the facility, the recipient retains the ACD. If the recipient dies, the ACD must be transferred to the recipient's estate. If it is donated or sold to the facility by the recipient or the recipient's estate, the transaction must be documented. (See §19.416 of this title (relating to Personal Property)).

(2) The facility is responsible for the repair and maintenance of the ACD while the recipient resides in the facility.

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 March 16, 2007.

TRD-200701046

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: April 29, 2007

For further information, please call: (512) 438-4162

Chapter 48. COMMUNITY CARE FOR AGED AND DISABLED

The Health and Human Services Commission (HHSC) proposes, on behalf of the Department of Aging and Disability Services (DADS), amendments to §48.2901, concerning eligibility for services; and §48.6003, concerning eligibility criteria for the Community Based Alternatives (CBA) Program, in Chapter 48, Community Care for Aged and Disabled.

Background and Purpose

The purpose of the amendments is to revise eligibility criteria for certain community-based services provided by DADS if a person lives in a managed care service area. Under the new Integrated Care Management (ICM) Program, implemented in accordance with Texas Government Code, Chapter 533, Subchapter D, persons eligible for managed care services who live in areas of Texas in which the ICM Program is available (managed care service areas) will not be eligible to receive certain services under DADS' Community Care for Aged and Disabled (CCAD) programs. Eligible persons who live in managed care service areas will receive those CCAD services through the ICM Program.

Section-by-Section Summary

The amendment to §48.2901 adds a provision that a person who lives in a managed care service area is not eligible to receive primary home care or day activity and health services if the person is eligible to receive managed care services.

The amendment to §48.6003 adds an eligibility criterion for the CBA Program in new subsection (f) that a person must live in a county not included in a managed care service area in order to be enrolled in the CBA Program. The amendment also changes references from the Texas Department of Human Services to DADS and changes the reference to the Texas Index for Level of Effort (TILE) payment rate in subsection (a)(5) to "nursing facility payment rate."

Fiscal Note

Gordon Taylor, DADS Chief Financial Officer, has determined that, for the first five years the proposed amendments 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.

Because all individuals with Supplemental Security Income in the managed care service area who are eligible for the ICM Program will receive services, without being placed on an interest list, utilization of and expenditures for services will increase. However, this additional cost may be offset by a reduction in the utilization and cost of acute care services, or both, incurred by HHSC. The net impact to the state cannot be determined at this time.

Small Business and Micro-business Impact Analysis

DADS has determined that there is no adverse economic effect on small businesses or micro-businesses as a result of enforcing or administering the amendments, because the amendments concern eligibility requirements for individuals and do not require businesses to adjust their business practices. Providers of CBA services will be given the opportunity to provide managed care services in the counties in which CBA services will no longer be provided.

Public Benefit and Costs

Gary Jessee, DADS Assistant Commissioner for Access and Intake, has determined that, for each year of the first five years the amendments are in effect, the public benefit expected as a result of enforcing the amendments is that DADS will have up-to-date eligibility rules for CCAD services in its rule base, which take into consideration the eligibility of persons who live in managed care service areas.

Mr. Jessee anticipates that there will not be an economic cost to persons who are required to comply with the amendments. The amendments will not affect a local economy.

Takings Impact Assessment

Public Comment

Questions about the content of this proposal may be directed to Sharon Wallace at (512) 438-3729 in DADS' Access and Intake Division. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-007, Department of Aging and Disability Services W-615, P.O. Box 149030, Austin, TX 78714-9030 or street address 701 West 51st St., Austin, TX 78751; faxed to (512) 438-5759; or e-mailed to rulescomments@dads.state.tx.us. To be considered, comments must be submitted no later than 30 days after the date of this issue of the Texas Register. The last day to submit comments falls on a Sunday; therefore, comments must be either (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered to DADS before 5:00 p.m. on DADS' last working day of the comment period; or (3) faxed or e-mailed by midnight on the last day of the comment period. When faxing or e-mailing comments, please indicate "Comments on Proposed Rule 007" in the subject line.

Subchapter H. ELIGIBILITY

40 TAC §48.2901

Statutory Authority

The amendment affects Texas Government Code, §531.0055 and §531.021, and Texas Human Resources Code, §161.021.

§48.2901.Eligibility for Services.

(a) To receive community care for aged and disabled (CCAD) services , a person [ ~~client~~ ] must meet income, resource, age, and need criteria.

(b) A person who lives in a nursing facility is [ ~~Clients who live in nursing homes are~~ ] not eligible to receive CCAD services.

(c) A person who lives in a managed care service area is not eligible to receive primary home care (PHC) or day activity and health services (DAHS) if the person is eligible to receive managed care services.

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 March 19, 2007.

TRD-200701076

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: April 29, 2007

For further information, please call: (512) 438-4162

Subchapter J. 1915(c) MEDICAID HOME AND COMMUNITY-BASED WAIVER SERVICES FOR AGED AND DISABLED ADULTS WHO MEET CRITERIA FOR ALTERNATIVES TO NURSING FACILITY CARE

40 TAC §48.6003

Statutory Authority

The amendment affects Texas Government Code, §531.0055 and §531.021, and Texas Human Resources Code, §161.021.

§48.6003.Client Eligibility Criteria.

(a) To be determined eligible by the [ ~~Texas~~ ] Department of Aging and Disability [ ~~Human~~ ] Services (DADS) [ ~~(DHS)~~ ] for the 1915(c) Medicaid waiver program provided as an alternative to care in a nursing facility, an applicant must:

(1) - (4) (No change.)

(5) have an individual plan of care for waiver services as specified in §48.6006 of this title (relating to Individual Plan of Care for Waiver Services) whose cost does not exceed 100% of the individual's actual nursing facility [ ~~Texas Index for Level of Effort~~ ] payment rate;

(6) meet the financial eligibility criteria for waiver services as specified in §48.6007 of this title [ ~~section~~ ] (relating to Financial Eligibility Criteria); [ ~~and~~ ]

(7) have ongoing needs for waiver services whose projected costs, as indicated on the Individual Plan of Care, do not exceed the maximum service ceilings set for those services as listed below:

(A) (No change.)

(B) minor home modifications service category cannot exceed $7500 per individual without approval by the waiver manager; and

(8) receive waiver services within 30 days after waiver eligibility is established ; [ ~~and~~ ]

(9) reside either in his own home or in a licensed assisted living [ ~~personal care~~ ] facility or adult foster care home contracted with DADS [ ~~the Texas Department of Human Services~~ ] to provide Community Based Alternatives (CBA) services. CBA services will not be delivered to residents of hospitals, nursing facilities, ICF-MR facilities, or unlicensed assisted living [ ~~personal care~~ ] facilities ; and [ . ]

(10) meet two or more of the criteria for nursing home risk, as specified in the Resident Assessment Instrument-Home Care Assessment for Nursing Home Risk as revised in April 1996 and summarized as follows:

(A) - (C) (No change.)

(D) has a neurological diagnosis of Alzheimer's disease , Head Trauma, Multiple Sclerosis, Parkinsonism, or Dementia;

(E) - (G) (No change.)

(b) Enrollment in the Community Based Alternatives (CBA) program is limited to the number of participants approved by the Centers for Medicare and Medicaid Services (CMS) or the availability of state funding.

(1) (No change.)

(2) DADS [ ~~DHS~~ ] suspends enrollment into the CBA program as long as the census of program participants exceeds funded limits. For purposes of this section, the census is considered to have exceeded funded limits when DADS [ ~~DHS~~ ] determines that the combination of existing caseloads and individuals described in paragraph (1)(A) and (1)(B) of this subsection exceed funded limits within the current budget period.

(3) Individuals residing in a Texas nursing facility who are enrolled in Medicaid will be approved for Community Care services if they request services while residing in a Texas nursing facility and meet all eligibility criteria for Community Care services. If the individual is discharged from the nursing facility for a community setting before being determined eligible for Medicaid nursing facility services and Community Care services, the individual will be denied Community Care services unless these services are part of an entitlement program. Upon inquiry to DADS [ ~~DHS~~ ] regarding the possibility of nursing facility placement and upon admission to a nursing facility, DADS [ ~~DHS~~ ] must make information on Community Care services, including Medicaid waiver services, available to the individual making the inquiry or being admitted to a nursing facility. Upon inquiry of discharge from a nursing facility, DADS [ ~~DHS~~ ] must also make information on Community Care services, including Medicaid waiver services, available to the nursing facility resident.

(f) A participant must live in a county not included in a managed care service area and meet all other eligibility requirements to be enrolled in CBA.

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 March 19, 2007.

TRD-200701077

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: April 29, 2007

For further information, please call: (512) 438-4162

Chapter 53. INTEGRATED CARE MANAGEMENT §1915(c) WAIVER SERVICES

The Health and Human Services Commission (HHSC) proposes, on behalf of the Department of Aging and Disability Services (DADS), new Chapter 53, Integrated Care Management §1915(c) Waiver Services, composed of the following: Subchapter A, Introduction, consisting of §§53.101, 53.103, 53.105, 53.107, 53.109, 53.111, and 53.113; Subchapter B, Individual Eligibility, consisting of §§53.201, 53.203, 53.205, 53.207, 53.209, 53.211, and 53.213; Subchapter C, Service Coordination Team Meeting, consisting of §53.301; Subchapter D, Plan of Care, consisting of §§53.401, 53.403, 53.405, 53.407, 53.409, 53.411, 53.413, 53.415, and 53.417; Subchapter E, Suspension of Services, consisting of §53.501; Subchapter F, LTSS Provider Requirements, consisting of §§53.601, 53.603, 53.605, 53.607, 53.609, 53.611, 53.613, 53.615, 53.617, and 53.619; Subchapter G, Service Requirements, consisting of Division 1, General Requirements, §§53.701, 53.703, 53.705, 53.707, 53.709, 53.711, 53.713, 53.715, and 53.717; Division 2, Adaptive Aids, §§53.731, 53.733, 53.735, 53.737, 53.739, 53.741, 53.743, 53.745, 53.747, 53.749, 53.751, 53.753, and 53.755; Division 3, Adult Foster Care, §53.761 and §53.763; Division 4, Assisted Living Services, §53.771; Division 5, Consumer Directed Services, §53.781 and §53.783; Division 6, Dental Services, §§53.791, 53.793, 53.795, 53.797, 53.799, and 53.801; Division 7, Emergency Response Services, §53.811; Division 8, Home-delivered Meals, §53.821; Division 9, In-Home Respite Services, §53.831; Division 10, Medical Supplies, §§53.841, 53.843, 53.845, 53.847, 53.849, and 53.851; Division 11, Minor Home Modifications, §§53.861, 53.863, 53.865, 53.867, 53.869, 53.871, 53.873, 53.875, 53.877, 53.879, 53.881, and 53.883; Division 12, Out-of-Home Respite Services, §53.891 and §58.893; Division 13, Personal Assistance Services, §§53.901, 53.903, 53.905, 53.907, 53.909, and 53.911; Division 14, Skilled Nursing, §§53.921, 53.923, 53.925, 53.927, and 53.929; Division 15, Therapy Services, §53.931; and Division 16, Transition Assistance Services, §53.941; Subchapter H, Documentation, consisting of §§53.1001, 53.1003, 53.1005, 53.1007, 53.1009, and 53.1011; Subchapter I, Claims and Payments, consisting of §§53.1101, 53.1103, 53.1105, 53.1107, 53.1109, 53.1111, 53.1113, 53.1115, 53.1117, and 53.1119; and Subchapter J, LTSS Provider Monitoring, consisting of §§53.1201, 53.1203, 53.1205, 53.1207, 53.1209, and 53.1211.

Background and Purpose

Texas Government Code, §533.061, as added by House Bill 1771 and Article II, Section 49.b. of the General Appropriations Act, 79th Texas Legislature, Regular Session, 2005, directs HHSC to develop a non-capitated, enhanced primary-care, case management model of Medicaid managed care. The Integrated Care Management (ICM) Program, which implements this legislation, has several common managed care features, including individual assignment to a medical home, utilization management processes, and care coordination. It is intended to improve the health and social outcomes of individuals receiving services, improve access to services, contain costs, and integrate acute and long-term care services. Utilization management, service coordination, and related functions are to be performed by a single ICM contractor.

The ICM Program offers eligible individuals a wide variety of long-term services and supports (LTSS) that make it possible for an individual to remain in the community. The LTSS are offered through a Social Security Act §1915(c) waiver that is concurrent with a Social Security Act §1915(b) waiver that offers the acute care services. DADS is the operating agency for the LTSS portion of the ICM Program (known in these rules as the ICM waiver).

The purpose of new Chapter 53 is to provide rules for operating the ICM waiver, including eligibility criteria for applicants and individuals, and the contracting and service delivery requirements for LTSS providers and the ICM contractor.

Section-by-Section Summary

Proposed new Subchapter A provides an introduction to the ICM waiver services, including definitions for terms used in the chapter, a description of the ICM waiver, the array of services available under the ICM waiver, and general contracting requirements.

Proposed new Subchapter B provides the eligibility criteria for a person seeking ICM waiver services (applicant) and a person receiving ICM waiver services (individual) and governs the medical necessity and level of care determination, cost ceilings, service limits, co-payments, and room and board payments.

Proposed new Subchapter C describes the conditions under which the service coordination team must convene and the responsibilities of the service coordination team if it meets to address service delivery issues.

Proposed new Subchapter D contains the rules governing development of the plan of care (POC); the assessments required for each applicant and individual; completion of the purchase rationale documentation for adaptive aids, medical supplies, and minor home modifications; approval of the POC; referrals to LTSS providers; and utilization review.

Proposed new Subchapter E provides the criteria under which the ICM contractor must suspend ICM waiver services and the time frames for notification of the suspension.

Proposed new Subchapter F contains the requirements that an LTSS provider must meet in order to contract with DADS to deliver each service under the ICM waiver.

Proposed new Subchapter G contains general requirements as well as specific requirements for delivery of each service under the ICM waiver.

Proposed new Subchapter H provides the requirements for documentation of services and for record keeping that an LTSS provider or the ICM contractor or both must meet, including maintenance of clinical records, service delivery documentation, bids, price lists, financial records, and purchase completion documentation.

Proposed new Subchapter I contains the requirements an LTSS provider must follow to be paid for services delivered and provides lists of billable and non-billable services, items, and activities.

Proposed new Subchapter J contains the rules under which LTSS providers are monitored for compliance with the rules of the chapter and with fiscal requirements associated with billing and payments. It also provides the criteria by which DADS may sanction an LTSS provider.

Fiscal Note

Gordon Taylor, DADS Chief Financial Officer, has determined that, for the first five years the proposed new sections 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.

Because all individuals with Supplemental Security Income in the managed care area who are eligible for LTSS under the ICM Program will receive services, without being placed on an interest list, utilization of and expenditures for services will increase. However, this additional cost may be offset by a reduction in the utilization and cost of acute care services, or both, incurred by HHSC. The net impact to the state cannot be determined at this time.

Small Business and Micro-business Impact Analysis

DADS has determined that there is no adverse economic effect on small businesses or micro- businesses as a result of enforcing or administering the new sections, because the rules do not establish any new responsibilities for providers. The services and requirements for providers under the ICM waiver are substantially the same as for the Community Based Alternatives (CBA) Program. All current providers of CBA services will have the opportunity to particpate as ICM providers.

Public Benefit and Costs

Barry Waller, DADS Assistant Commissioner for Provider Services, has determined that, for each year of the first five years the new sections are in effect, the public benefit expected as a result of enforcing the new sections is that they will allow the public to clearly understand the roles and responsibilities of the entities delivering long-term services and supports in the new ICM waiver.

Mr. Waller anticipates that there will not be an economic cost to persons who are required to comply with the new sections. The new sections will not affect a local economy.

Takings Impact Assessment

Public Comment

Questions about the content of this proposal may be directed to Ric Zimmerman at (512) 438-3768 in DADS' Community Services Policy Development and Support Unit. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-005, Department of Aging and Disability Services W-615, P.O. Box 149030, Austin, TX 78714-9030 or street address 701 West 51st St., Austin, TX 78751; faxed to (512) 438-5759; or e-mailed to rulescomments@dads.state.tx.us . To be considered, comments must be submitted no later than 30 days after the date of this issue of the Texas Register . The last day to submit comments falls on a Sunday; therefore, comments must be either (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered to DADS before 5:00 p.m. on DADS' last working day of the comment period; or (3) faxed or e-mailed by midnight on the last day of the comment period. When faxing or e-mailing comments, please indicate "Comments on Proposed Rule 005" in the subject line.

Subchapter A. INTRODUCTION

40 TAC §§53.101, 53.103, 53.105, 53.107, 53.109, 53.111, 53.113

Statutory Authority

The 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 §533.061, which requires the HHSC executive commissioner by rule to develop an integrated care management model of Medicaid managed care.

The new sections affect Texas Government Code, §§531.0055, 531.021, and 533.061; and Texas Human Resources Code, §161.021.

§53.101.Purpose.

(a) This chapter establishes:

(1) the eligibility criteria and enrollment process for an individual to participate in the ICM waiver; and

(2) the service delivery requirements for an LTSS provider to provide ICM waiver services.

(b) This chapter does not rescind or replace the rules of any other waiver program.

§53.103.Definitions.

The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:

(1) §1915(c) waiver--A Medicaid waiver program that provides home and community based services to aged, blind, and disabled individuals as a cost-effective alternative to nursing facility placement.

(2) Action--An action is defined as:

(A) the denial or limited authorization of a requested ICM waiver service, including the type or level of service;

(B) the reduction, suspension, or termination of a previously authorized ICM waiver service; or

(3) Activities of daily living--Activities that are essential to daily self care, including bathing, dressing, grooming, routine hair and skin care, meal preparation, feeding, exercising, toileting, transfer and ambulation, positioning, range of motion, and assistance with self-administered medications.

(4) AFC--Adult foster care.

(5) AFC home--A 24-hour home-like living arrangement, which DADS has enrolled or licensed or both, where AFC services are provided.

(6) AFC provider--A person who provides AFC services in the person's own home.

(7) ALF--Assisted living facility. An entity required to be licensed under the Assisted Living Facility Licensing Act, Health and Safety Code, Chapter 247.

(8) Appeal--The formal process by which an applicant, an individual, or the applicant or individual's representative requests a review of the ICM contractor's action.

(9) Applicant--A person who has requested ICM waiver services and whose eligibility for ICM waiver services is in the process of being determined.

(10) Appropriate medical professional--A medical professional whose licensure allows the performance of a described medical task or procedure.

(11) Attendant--A person 18 years of age or older who provides authorized personal assistance services or tasks for an individual receiving personal assistance services.

(12) CDS--Consumer directed services. A service delivery option as defined in §41.103 of this title (relating to Definitions).

(13) CDSA--Consumer directed services agency. An entity, as defined in §41.103 of this title, that provides financial management services to an individual participating in CDS.

(14) CMS--The Centers for Medicare and Medicaid Services.

(15) Complaint--Any dissatisfaction expressed by a person, orally or in writing, to the ICM contractor about any matter related to the ICM contractor, except an action. Subjects for complaints include:

(A) the quality of service provided;

(B) aspects of interpersonal relationships such as rudeness of an ICM contractor employee, an LTSS provider, or an LTSS provider's employee; or

(16) Contract manager--A DADS employee who is responsible for the overall management of the LTSS provider contract.

(17) Contracted medical necessity determination provider--The organization that determines medical necessity through its utilization review committee based on assessment data submitted by an RN.

(18) DADS--The Department of Aging and Disability Services.

(19) Day--Any reference to a day means a calendar day, unless otherwise specified in the text. A calendar day includes weekends and holidays.

(20) Designated service area--A specific geographic region in which the ICM Program is available.

(21) Enhancement--An addition or variation to a minor home modification or an adaptive aid that is not necessary to meet the individual's needs.

(22) ERS--Emergency response services.

(23) ERS agency--Emergency response services agency. An entity that provides emergency response services in accordance with Chapter 52 of this title (relating to Contracting to Provide Emergency Response Services).

(24) HCSSA--A home and community support services agency as defined in §97.2 of this title (relating to Definitions).

(25) HDM--Home-delivered meals.

(26) HDM agency--An agency that provides home-delivered meals.

(27) HHSC--The Texas Health and Human Services Commission.

(28) ICM--Integrated Care Management.

(29) ICM contractor--An entity under contract with HHSC and responsible for managing and coordinating acute care services and LTSS for applicants and individuals for the ICM Program.

(30) ICM Program--A combined waiver program HHSC and DADS operate as authorized by CMS in accordance with §1915(b) and §1915(c) of the Social Security Act where an ICM contractor manages and coordinates acute care services and LTSS services for eligible individuals.

(31) ICM waiver--For purposes of this chapter, ICM waiver means the ICM §1915(c) waiver, unless the text clearly indicates otherwise. In this chapter, the term does not include the ICM §1915(b) waiver.

(32) Imminent danger--An immediate, real threat to a person's safety.

(33) Individual--A person who is enrolled in the ICM Program, otherwise known as an ICM member. References in this chapter to "individual" include the individual's legal representative, unless the context indicates otherwise.

(34) Informal support provider--A family member, friend, or other unpaid person providing support to an applicant or individual.

(35) Institution--An acute-care hospital, a state school, a state mental health facility, a rehabilitation hospital, a nursing facility, a jail or prison, or an intermediate care facility for persons with mental retardation or a related condition.

(36) Level of care--A score, based on an assessment of the applicant or individual, used to identify the level of support an applicant or individual needs.

(37) LTSS--Long term services and supports. Services provided to an individual in the individual's home or other community-based setting that are necessary to allow the individual to remain in the most integrated setting possible.

(38) LTSS provider--An entity that provides LTSS under both a contract with DADS and an ICM provider agreement with the ICM contractor.

(39) MDCP--The Medically Dependent Children Program. A program operated by DADS as authorized by CMS in accordance with §1915(c) of the Social Security Act.

(40) Medical necessity--A determination given to an applicant or an individual, based on an assessment of the applicant or individual, used to certify that the applicant or individual is eligible for placement in a nursing facility.

(41) Medical necessity and level of care form--A form completed by an RN and used by the contracted medical necessity determination provider to establish medical necessity and level of care for an applicant or individual.

(42) Nursing facility--A facility as defined in §19.101 of this title (relating to Definitions).

(43) Nursing facility risk criteria form--A form completed by the ICM contractor to establish that an applicant meets the nursing facility risk criteria.

(44) Person-directed planning--A process that empowers an individual to direct the development of a plan of supports and services that meets the individual's goals. The process:

(A) identifies existing supports and services necessary to achieve the individual's goals;

(B) identifies natural supports available to the individual and negotiates needed services system supports;

(D) mirrors the way in which a person without a disability makes plans.

(45) POC--Plan of care. A person-directed plan of care that specifies the type of ICM waiver services required to keep the applicant or individual in the community, the units of ICM waiver services, and the frequency and duration of ICM waiver services. The POC is developed with the assistance of a service coordination team to prevent institutionalization and to facilitate an individual's ability to fully participate in the community, taking into account the individual's preference.

(46) POC forms--The forms that document the applicant's or individual's POC. These forms include documentation of:

(A) the individual's choice of ICM waiver services and agreement with the POC;

(B) the LTSS provider's acceptance or refusal of an applicant or individual referral, and the reason for refusal if applicable;

(D) service level of all services provided by a HCSSA, including adaptive aids, medical supplies, minor home modifications, skilled nursing, personal assistance services, and therapies; and

(E) the rationale for the purchase of adaptive aids, medical supplies, and minor home modifications.

(47) Practitioner--A physician currently licensed in Texas, Louisiana, Arkansas, Oklahoma, or New Mexico; a physician assistant currently licensed in Texas; or an RN approved by the Board of Nurse Examiners for the State of Texas to practice as an advanced practice nurse.

(48) Primary caregiver--A person providing unpaid assistance with the most important routine activities of daily living when there has been no delivery of scheduled waiver services for an individual. A primary caregiver may also be the key person who ensures the individual's health and safety during the time the individual is not receiving waiver services.

(49) QIT--Qualified Income Trust. A trust that allows a person to legally divert the person's income into a trust, after which the income is not counted for purposes of the Medicaid eligibility income cap.

(50) Reckless behavior--Acting with conscious indifference to the consequences.

(51) Related party--A person related to the individual. For the purposes of this chapter, related party means:

(A) husband and wife;

(B) natural parent, child, and sibling;

(D) stepparent, stepchild, stepsister, and stepbrother;

(E) father-in-law, mother-in-law, sister-in-law, brother-in-law, son-in-law, and daughter-in-law;

(F) grandparent and grandchild;

(G) uncles and aunts by blood or marriage;

(H) nephews and nieces by blood or marriage; and

(I) first cousins.

(52) Requisition fee--A fee that a HCSSA may bill to DADS for the processing of a medical supply, adaptive aid, or minor home modification for an individual. HHSC establishes the fee.

(53) Respite services--Care provided to an individual on a short-term basis because of the absence or need for relief of those persons normally providing the care.

(54) RN--A registered nurse licensed by the Board of Nurse Examiners for the State of Texas.

(55) Service coordination team--A group of people that identifies the comprehensive array of services needed to meet an applicant's or individual's needs, obtains the applicant's or individual's choice regarding service delivery options, and discusses service delivery issues. The service coordination team also develops a POC that incorporates the applicant's or individual's goals and is responsive to the applicant's or individual's identified needs. The service coordination team must include:

(A) an ICM contractor representative;

(B) the applicant or individual; and

(i) an LTSS provider representative;

(ii) a DADS representative;

(iii) other parties chosen by the applicant or individual who are willing to be on the team; and

(iv) representatives of third-party resources who are willing to be on the team.

(56) Service schedule--A schedule for delivering personal assistance services that is agreed upon and signed by the individual. A fixed service schedule specifies certain days, times of day, or time periods for delivery of the services. A variable service schedule specifies the number of hours of services to be delivered per day or per week, not to exceed the authorized hours per week and does not otherwise specify any certain days, times of day, or time periods for delivery of the services.

(57) Signature--A person's name written in longhand or a mark representing the person's name on a document to certify it is correct. The person's initials are an acceptable substitute for a signature if already established as the person's official signature.

(58) SSI--Supplemental Security Income. The federal cash assistance program of direct financial payments to the aged, blind, and disabled administered by the Social Security Administration (SSA) under Title XVI of the Social Security Act.

(59) Suspension--A temporary cessation of any ICM waiver service without loss of program or Medicaid eligibility.

(60) TAS agency--An agency that delivers transition assistance services.

(61) Third-party resource--An item or service available to an individual from a source other than the ICM waiver, such as Medicare, Medicaid home health, Texas Health Steps Comprehensive Care Program, private insurance, and family and community supports.

(62) Texas Accessibility Standards--Federal and state standards merged to comply with the Americans with Disabilities Act that apply to minor home modifications.

(63) Utilization review--A review of an applicant's or individual's assessment, medical necessity and level of care determination form, or POC.

(64) Waiver program--A home and community-based services program authorized by §1915(c) of the Social Security Act and approved by CMS.

(65) Working day--Any day except Saturday, Sunday, a state holiday, or a federal holiday.

§53.105.Description of Integrated Care Management Waiver.

(a) Texas Government Code, §533.061, requires the development of an integrated care management model of managed care. To implement the law, the ICM Program was developed to offer a single set of services, rates, and providers to individuals of varying ages, disabilities, and levels of care. The ICM Program is limited to a designated service area.

(b) Enrollment in the ICM waiver is limited to the number of individuals approved by CMS and funded by the State of Texas.

§53.107.Service Array.

(a) The ICM waiver offers the following long-term services and supports:

(1) adaptive aids;

(2) adult foster care;

(3) assisted living;

(4) dental services;

(5) emergency response services;

(6) home-delivered meals;

(7) in-home respite services;

(8) medical supplies;

(9) minor home modifications;

(10) out-of-home respite services;

(11) personal assistance services;

(12) skilled nursing;

(13) therapy services, including:

(A) physical therapy;

(B) occupational therapy; and

(14) transition assistance services.

(b) The ICM waiver offers financial management services through the CDS option for:

(1) in-home respite services;

(2) out-of-home respite services; and

(3) personal assistance services.

§53.109.Personal Assistance Services.

Personal assistance services tasks are tasks related to the care of an individual's physical health, as described on the task/hour guide for functional assessments.

§53.111.Contracting Requirements.

An ICM contractor and an LTSS provider must comply with all the provisions of this chapter and of Chapter 49 of this title (relating to Contracting for Community Care Services) as if the ICM contractor or the LTSS provider were a provider agency as defined in §49.1 of this title (relating to Definitions). In the event of a conflict in wording or interpretation between the rules in Chapter 49 of this title and the rules in this chapter, the rules in this chapter have precedence.

§53.113.Complaints.

(a) An ICM contractor and an LTSS provider must:

(1) investigate all complaints as described in §49.17 of this title (relating to Complaint Procedures);

(2) report all civil rights complaints to HHSC within 10 days after receiving the complaint; and

(3) report all suspected incidents of abuse, neglect, or exploitation immediately upon receipt or awareness to:

(A) the Department of Family and Protective Services; and

(B) the licensing authority for the LTSS provider.

(b) The ICM contractor must inform all applicants and individuals of the procedures for filing a complaint with:

(1) the ICM contractor; and

(2) HHSC.

(c) The LTSS provider must inform all applicants and individuals of the procedures for filing a complaint with the ICM contractor and with DADS as required by licensure requirements.

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 March 19, 2007.

TRD-200701051

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: April 29, 2007

For further information, please call: (512) 438-4162

Subchapter B. INDIVIDUAL ELIGIBILITY

40 TAC §§53.201, 53.203, 53.205, 53.207, 53.209, 53.211, 53.213

Statutory Authority

The 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 §533.061, which requires the HHSC executive commissioner by rule to develop an integrated care management model of Medicaid managed care.

The new sections affect Texas Government Code, §§531.0055, 531.021, and 533.061; and Texas Human Resources Code, §161.021.

§53.201.Eligibility Criteria.

An applicant or individual is eligible for ICM waiver services if the applicant or individual:

(1) is 21 years of age or older;

(2) is enrolled in the ICM Program;

(3) for an applicant only, meets the nursing facility risk criteria as described in §19.2409 of this title (relating to General Qualifications for At-Risk Assessments and Medical Necessity Determinations);

(4) meets the medical necessity and level of care criteria as described in §19.2409 of this title and §19.2410 of this title (relating to Criteria Specific to a Medical Necessity Determination);

(5) has an approved POC as described in §53.413 of this chapter (relating to Approval of the Plan of Care);

(6) has an approved POC with an estimated annual cost that does not exceed the applicable individual cost ceiling and service limits in §53.205 of this subchapter (relating to Individual Cost Ceiling and Service Limits), except as allowed in §53.207 of this subchapter (relating to Exceeding the Individual Cost Ceiling);

(7) receives ICM waiver services within 30 days after eligibility is determined, unless the ICM contractor determines an extended period of time is needed to initiate services;

(8) chooses ICM waiver services as an alternative to institutional care; and

(9) resides:

(A) in the applicant's or individual's own home;

(B) in a licensed ALF contracted with DADS and the ICM contractor to provide ICM waiver services;

(D) for an applicant only, in a nursing facility and is seeking a return to the community.

§53.203.Medical Necessity and Level of Care Determination.

(a) The ICM contractor must ensure that the medical necessity and level of care form is completed as described in subsections (b) - (j) of this section.

(b) An RN must complete the medical necessity and level of care form. The RN who completes the medical necessity and level of care form must have completed the required training for completion of the medical necessity and level of care form.

(c) All entries in the medical necessity and level of care form must be completed according to the ICM waiver-specific form instructions.

(d) The medical necessity and level of care form must be submitted to the contracted medical necessity determination provider using an approved method of transmission.

(e) A new assessment to complete a new medical necessity and level of care form must be completed if there is a change in the individual's condition that may result in a new level of care.

(f) All pending medical necessity and level of care denials must be cleared from the pending status before the denial date established by the contracted medical necessity determination provider.

(g) Appropriate staff must participate in medical necessity and level of care appeals if requested by DADS or HHSC.

(h) A new medical necessity and level of care form is not completed for an applicant moving from a nursing facility to the community or transferring from MDCP.

(i) An applicant's medical necessity determination and level of care assessment expires 120 days after issuance.

(j) If an individual is enrolled in the ICM waiver within 30 days after the date of discharge from an institution, the individual's most recent medical necessity determination and level of care assessment may be used for enrollment purposes and is valid until the expiration date of the approved POC.

§53.205.Individual Cost Ceiling and Service Limits.

(a) The ICM waiver individual cost ceiling is 100 percent of the applicant's or individual's actual annualized nursing facility payment rate.

(b) An individual's POC must not exceed the individual cost ceiling for the ICM waiver, except as allowed in §53.207 of this subchapter (relating to Exceeding the Individual Cost Ceiling).

(c) The cost of adaptive aids and medical supplies must not exceed $10,000 per POC year, except as authorized by DADS under §53.417 of this chapter (relating to Utilization Review).

(d) The cost of minor home modifications and repairs to existing minor home modifications must not exceed $7,500 over the individual's lifetime, regardless of the number of times the individual is determined eligible for ICM waiver services, except as authorized by DADS under §53.417 of this chapter.

(e) After the $7,500 limit established in subsection (c) of this section has been reached, the cost of repairs to existing minor home modifications must not exceed $300 per POC year, except as authorized by DADS under §53.417 of this chapter.

(f) The cost of dental services must not exceed $2,500 per individual per POC year, except as authorized by DADS under §53.417 of this chapter.

(g) An individual may access transition assistance services, as described in Chapter 62 of this title (relating to Contracting to Provide Transition Assistance Services), only once in the individual's lifetime. The cost of the services must not exceed $2,500.

(h) In-home respite services and out-of-home respite services are limited to a combined total of 30 days (or 720 hours) per individual per POC year, except as authorized by DADS under §53.417 of this chapter.

(i) Skilled nursing services for the purpose of providing skilled nursing tasks delegated to an attendant to prevent a service interruption are limited to a total of 10 hours per POC year.

(j) Skilled nursing services for the purpose of determining if the RN will delegate skilled nursing tasks to a Level I or Level II AFC provider are limited to a total of four hours per POC year.

(k) Skilled nursing services for the purpose of providing crisis intervention to individuals who reside in an AFC home run by a nurse are limited to a total of three hours per POC year.

§53.207.Exceeding the Individual Cost Ceiling.

(a) DADS does not provide ICM waiver services to an individual if the cost of providing those services exceeds the individual cost ceiling specified in §53.205(a) of this subchapter (relating to Individual Cost Ceiling and Service Limits), unless:

(1) the cost of providing those services over a 12-month period, excluding the cost of minor home modifications and adaptive aids, does not exceed 133.3% of the individual cost ceiling; and

(2) continuation of those services does not affect DADS' compliance with the federal cost- effectiveness and efficiency requirements under 42 U.S.C. §1396n(b) and (c)(2)(D).

(b) The HHSC executive commissioner or designee may exempt an individual from the individual cost ceiling described in subsection (a)(1) of this section.

§53.209.Co-payment Requirements.

(a) HHSC determines:

(1) whether an individual must share in the cost of ICM waiver services by paying a co-payment; and

(2) the amount of the individual's co-payment.

(b) The co-payment is applied only to the cost of ICM waiver services and must not exceed the cost of services actually delivered.

§53.211.Room and Board Payments.

HHSC determines the room and board payment an individual who receives AFC or assisted living services must pay. The individual makes the room and board payment directly to the LTSS provider.

§53.213.Authorization of ICM Waiver Services Eligibility.

DADS authorizes or denies eligibility for ICM waiver services.

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 March 19, 2007.

TRD-200701052

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: April 29, 2007

For further information, please call: (512) 438-4162

Subchapter C. SERVICE COORDINATION TEAM MEETING

40 TAC §53.301

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; 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 §533.061, which requires the HHSC executive commissioner by rule to develop an integrated care management model of Medicaid managed care.

The new section affects Texas Government Code, §§531.0055, 531.021, and 533.061; and Texas Human Resources Code, §161.021.

§53.301.Service Coordination Team Meeting.

(a) A service coordination team meeting is convened to:

(1) develop a POC, as described in Subchapter D of this chapter (relating to Plan of Care); or

(2) address service delivery issues.

(b) If a service coordination team meets to address service delivery issues, the service coordination team must:

(1) evaluate the service delivery issue;

(2) identify solutions to resolve the service delivery issue; and

(3) revise the POC if necessary.

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 March 19, 2007.

TRD-200701053

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: April 29, 2007

For further information, please call: (512) 438-4162

Subchapter D. PLAN OF CARE

40 TAC §§53.401, 53.403, 53.405, 53.407, 53.409, 53.411, 53.413, 53.415, 53.417

Statutory Authority

The 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 §533.061, which requires the HHSC executive commissioner by rule to develop an integrated care management model of Medicaid managed care.

The new sections affect Texas Government Code, §§531.0055, 531.021, and 533.061; and Texas Human Resources Code, §161.021.

§53.401.Responsibility for Plan of Care Development.

(a) The ICM contractor must ensure that all activities described in this subchapter are completed.

(b) All POC activities must be completed face-to-face with the applicant or individual.

§53.403.Assessments.

(a) An appropriate medical professional must complete an assessment initially with each applicant and at least annually with each individual.

(1) The appropriate medical professional must complete the applicant's initial assessment within 30 days after identifying the applicant's need for an assessment for ICM waiver services.

(2) The appropriate medical professional must complete the individual's annual reassessments during the calendar month that ends two months before the expiration date of the individual's POC.

(3) The appropriate medical professional must complete an additional reassessment for an individual within 30 days after identifying the individual's need for a new medical necessity and level of care determination.

(b) The ICM contractor must prepare an assessment packet that includes:

(1) an original or a copy of the medical necessity and level of care form described in §53.203 of this chapter (relating to Medical Necessity and Level of Care Determination), unless a medical necessity and level of care assessment was not completed; and

(2) all applicable POC forms.

(c) If an assessment or reassessment cannot be completed by the dues dates described in subsection (a) of this section, the ICM contractor must document the reason for the delay.

(d) DADS considers the ICM contractor to be in compliance with this section if the reason for the delay is:

(1) beyond the control of the ICM contractor; and

(2) not caused directly by the ICM contractor.

§53.405.Freedom of Choice.

(a) The ICM contractor must ensure that:

(1) the applicant desires to pursue ICM waiver services; and

(2) the individual desires to continue receiving ICM waiver services.

(b) The applicant's or individual's choice must be indicated on the POC.

§53.407.Developing a Plan of Care.

(a) A service coordination team must develop a POC using the assessment described in §53.403 of this subchapter (relating to Assessments).

(b) The service coordination team must identify the services necessary to meet the applicant's or individual's needs in the community and any health and safety issues associated with those needs.

(c) If there are needs indicated on the POC that cannot be met by available resources, the applicant or individual may choose to accept responsibility for those needs. The ICM contractor must obtain documentation separate from the POC indicting the applicant's or individual's choice for needs that cannot be met by available resources. The documentation must include:

(1) the specific needs that cannot be met by available resources;

(2) the applicant's or individual's choice regarding the needs that cannot be met by available resources;

(3) the degree of responsibility, if applicable; and

(4) the applicant's or individual's dated signature.

(d) A POC must include all applicable POC forms.

(e) All members of the service coordination team must sign the POC forms:

(1) indicating agreement with the POC; and

(2) certifying that ICM waiver services are necessary as an alternative to institutionalization and appropriate to meet the needs of the applicant or individual in the community.

(f) Each informal support provider must provide written acknowledgment of any skilled nursing needs the informal support provider will meet. This written acknowledgment becomes a part of the POC.

(g) The service coordination team must develop a POC initially and annually, and revise the POC as necessary to meet the changing needs of the individual.

§53.409.Purchase Rationale Documentation.

(a) The ICM contractor must ensure that the HCSSA completes the purchase rationale documentation for every adaptive aid, medical supply, or minor home modification purchased.

(b) The purchase rationale documentation must be a single document that contains:

(1) the individual's name and Medicaid number; and

(2) the individual's address.

(1) a practitioner;

(2) an RN;

(3) a dentist;

(4) a speech-language pathologist;

(5) an occupational therapist; or

(6) a physical therapist.

(d) The purchase rationale documentation must describe:

(1) the individual's functional need and disability or medical condition;

(2) the medical supply, adaptive aid, or minor home modification requested;

(3) the need for the item to adequately support the individual living in the most integrated setting appropriate to the individual's needs; and

(4) the attempts to access third-party resources.

(e) The purchase rationale documentation must include the professional's dated signature, printed name, title, and phone number.

(f) The ICM contractor must submit a copy of the purchase rationale documentation to DADS with the revised POC and provide a copy to the individual.

§53.411.Use of Third-Party Resources.

The ICM waiver is the payor of last resort; therefore, ICM waiver services must not be used if a third-party resource is available. Within program-specific requirements, however, ICM waiver services may supplement services provided through a third-party resource. The ICM contractor must assist the applicant or individual in identifying and accessing potential third-party resources.

§53.413.Approval of the Plan of Care.

(a) An ICM contractor must send the POC forms to DADS within seven days after completing the POC activities required in §§53.203, 53.403, 53.405, 53.407, 53.409, and 53.411 of this chapter (relating to Medical Necessity and Level of Care Determination; Assessments; Freedom of Choice; Developing a Plan of Care; Purchase Rationale Documentation; and Use of Third- Party Resources).

(b) If the ICM contractor disagrees with DADS' decision to approve or deny the POC, the ICM contractor must contact DADS. DADS may require the ICM contractor to provide additional information to support approval or denial.

§53.415.Referral to LTSS Providers.

(a) The ICM contractor must allow the individual free choice of LTSS providers contracted to provide ICM waiver services.

(1) An applicant or individual must choose a HCSSA.

(2) An applicant or individual may choose to receive ICM waiver services in an ALF or an AFC home.

(b) The ICM contractor must refer the applicant or individual to the LTSS provider of the applicant's or individual's choice within seven days after being notified DADS has approved the POC.

§53.417.Utilization Review.

(a) DADS conducts utilization review (UR) if a proposed POC:

(1) has a cost that exceeds 100% of the individual cost ceiling;

(2) contains a service limit exception; or

(3) requires approval of a specific service.

(b) After reviewing the proposed POC, medical necessity and level of care form, and supporting documentation, DADS may request additional documentation.

(c) After conducting UR, if DADS revises the medical necessity and level of care form, the ICM contractor must ensure that the medical necessity and level of care form is transmitted to the contracted medical necessity determination provider with the appropriate codes using an approved method of transmission.

(d) The ICM contractor must send verification of the transmittal to the DADS regional nurse who completed the revised medical necessity and level of care form within one working day after transmittal.

(e) DADS does not conduct UR of an initial POC if the proposed initial POC exceeds the individual cost ceiling described in §53.205(a) of this chapter (relating to Individual Cost Ceiling and Service Limits).

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 March 19, 2007.

TRD-200701054

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: April 29, 2007

For further information, please call: (512) 438-4162

Subchapter E. SUSPENSION OF SERVICES

40 TAC §53.501

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; 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 §533.061, which requires the HHSC executive commissioner by rule to develop an integrated care management model of Medicaid managed care.

The new section affects Texas Government Code, §§531.0055, 531.021, and 533.061; and Texas Human Resources Code, §161.021.

§53.501.Suspension of Services.

(a) The ICM contractor must suspend ICM waiver services to an individual if one or more of the circumstances specified in paragraphs (1) through (18) of this subsection occur:

(1) The individual has been temporarily admitted to an institution.

(2) The individual leaves the designated service area for more than 90 days, unless DADS authorizes an extension of time in extraordinary circumstances.

(3) The individual has been legally confined or has resided in an institution for more than 120 days, unless DADS authorizes an extension of time in extraordinary circumstances.

(4) The ICM contractor is notified the individual is not financially eligible for Medicaid benefits.

(5) The individual does not meet the medical necessity and level of care criteria as set out in §53.201 of this chapter (relating to Eligibility Criteria).

(6) A HCSSA refuses to serve the individual on the basis of a reasonable expectation that the individual's needs cannot be met adequately in the individual's residence as required by Chapter 97 of this title (relating to Licensing Standards For Home and Community Support Services Agencies).

(7) The individual or someone in the individual's residence refuses to comply with mandatory ICM waiver requirements, including cooperation with a reassessment of eligibility and monitoring of service delivery.

(8) The individual is receiving AFC or assisted living services and fails to pay room and board expenses or a required co-payment.

(9) The individual fails to pay a required QIT co-payment.

(10) A situation, the individual, or someone in the individual's residence is hazardous to the health and safety of an attendant, but there is no immediate threat to the health or safety of the attendant. This includes someone in the individual's residence openly using illegal drugs or who has illegal drugs readily available within sight of ICM contractor or LTSS provider staff.

(11) The individual or someone in the individual's home has a substantial and demonstrated pattern of verbal abuse and harassment of an attendant, not related to the individual's disability, that results in an inability to provide services to the individual.

(12) The individual or someone in the individual's home has a substantial and demonstrated pattern of discrimination against LTSS provider staff on the basis of race, color, national origin, age, sex, or disability that has not improved with appropriate intervention and that results in an inability to provide services to the individual.

(13) The ICM contractor has factual information confirming the death of the individual.

(14) The ICM contractor receives a clearly written statement signed by the individual that:

(A) the individual no longer wishes ICM waiver services; or

(B) gives information that requires denial or reduction in ICM waiver services and indicates that the individual understands that denial or reduction of ICM waiver services will result from supplying that information.

(15) The individual's whereabouts are unknown and the post office returns ICM contractor mail directed to the individual indicating no forwarding address.

(16) The ICM contractor establishes that an individual has been accepted for Medicaid services by another state.

(17) The individual's physician prescribes a change in the level of medical care that indicates ICM waiver services are no longer appropriate for the individual.

(18) The individual or someone in the individual's residence exhibits reckless behavior that may result in imminent danger to the health and safety of the individual, or the LTSS provider's or ICM contractor's staff.

(b) The ICM contractor must provide DADS with written notice of the suspension of ICM waiver services within two working days after suspending services.

(1) If the suspension is due to a circumstance described in subsection (a)(2) - (18) of this section, the ICM contractor must also provide documentation that supports a recommendation of denial of ICM waiver services.

(2) If the suspension is due to the circumstance listed in subsection (a)(18) of this section, the ICM contractor must make an immediate referral for appropriate crisis intervention services to the Department of Family and Protective Services or other appropriate protective services agency, and to local law enforcement, if appropriate.

(c) The ICM contractor must send written notification of suspension of ICM waiver services to the individual and the LTSS provider within two working days after suspending services.

(d) The ICM contractor must resume ICM waiver services if directed to do so by DADS.

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 March 19, 2007.

TRD-200701055

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: April 29, 2007

For further information, please call: (512) 438-4162

Subchapter F. LTSS PROVIDER REQUIREMENTS

40 TAC §§53.601, 53.603, 53.605, 53.607, 53.609, 53.611, 53.613, 53.615, 53.617, 53.619

Statutory Authority

The 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 §533.061, which requires the HHSC executive commissioner by rule to develop an integrated care management model of Medicaid managed care.

The new sections affect Texas Government Code, §§531.0055, 531.021, and 533.061; and Texas Human Resources Code, §161.021.

§53.601.General Requirements.

An LTSS provider must have a contract with:

(1) the ICM contractor for referrals to provide ICM waiver services to individuals; and

(2) DADS for payment for ICM waiver services.

§53.603.LTSS Provider Role.

An LTSS provider:

(1) participates on the service coordination team;

(2) implements the individual's goals and objectives as defined in the POC;

(3) delivers authorized services in accordance with the POC;

(4) assists in the resolution of emergencies;

(5) reports the individual's changing needs and goals to the ICM contractor;

(6) provides information to third-party resources;

(7) supports the individual in obtaining needed waiver services and third-party resources; and

(8) works with and coordinates services with:

(A) the individual;

(B) the ICM contractor;

(D) third-party resources; and

(E) other LTSS providers, if applicable.

§53.605.Requirements for Adult Foster Care Providers.

An AFC provider contracting to provide ICM waiver AFC must:

(1) meet the provider requirements in §48.8902 of this title (relating to Provider Qualifications) and §48.8904 of this title (relating to Individuals Who May Not Provide Adult Foster Care);

(2) locate a substitute provider who meets the qualifications described in §48.8903 of this title (relating to Substitute Provider Qualifications); and

(3) meet the home enrollment and licensure requirements in §48.8905 of this title (relating to Home Enrollment Requirements) and §48.8906 of this title (relating to Enrollment and Licensure Requirements).

§53.607.Requirements for Assisted Living Providers.

An ALF contracting to provide ICM waiver assisted living services must:

(1) be licensed as a Type "A" or Type "B" ALF under Chapter 92 of this title (relating to Licensing Standards for Assisted Living Facilities); and

(2) comply with the contracting requirements described in §46.11 of this title (relating to Contracting Requirements) and §46.13 of this title (relating to Housing Options).

§53.609.Requirements for Consumer Directed Services Agencies.

A CDSA contracting to provide ICM waiver financial management services must comply with the contracting requirements described in Chapter 41 of this title (relating to Consumer Directed Services Option).

§53.611.Requirements for Home and Community Support Services Agencies.

A HCSSA contracting to provide ICM waiver services must:

(1) be licensed under the licensed home health category of a HCSSA license under Chapter 97 of this title (relating to Licensing Standards for Home and Community Support Services Agencies);

(2) deliver the services covered by the HCSSA license under the licensed home health category; and

(3) provide the following services:

(A) adaptive aids;

(B) dental services;

(D) medical supplies;

(E) minor home modifications;

(F) skilled nursing;

(G) personal assistance services; and

(H) therapy services.

§53.613.Requirements for Home-delivered Meals Agencies.

An HDM agency contracting to provide ICM waiver home-delivered meals must comply with the contracting requirements described in §55.5 of this title (relating to Contracting Requirements for Provider Agencies).

§53.615.Requirements for Out-of-Home Respite Providers.

(a) A nursing facility contracting to provide ICM waiver out-of-home respite services must be licensed as a nursing facility under Chapter 19 of this title (relating to Nursing Facility Requirements for Licensure and Medicaid Certification).

(b) An ALF contracting to provide ICM waiver out-of-home respite services must be licensed as a Type "A" or Type "B" ALF under Chapter 92 of this title (relating to Licensing Standards for Assisted Living Facilities).

(c) An AFC provider contracting to provide ICM waiver out-of-home respite services must be enrolled with DADS as an AFC provider or licensed as a Type "C" ALF or both.

(d) An out-of-home respite provider must provide the following services:

(1) meal preparation;

(2) housekeeping;

(3) personal care;

(4) skilled nursing services, except for an AFC provider;

(5) help with activities of daily living;

(6) supervision; and

(7) the provision or arrangement of transportation.

§53.617.Requirements for Emergency Response Services Agencies.

An ERS agency contracting to provide ICM waiver services must comply with the contracting requirements described in §52.201 of this title (relating to General Contracting Requirements).

§53.619.Requirements for Transition Assistance Services Agencies.

A TAS agency contracting to provide ICM waiver transition assistance services must comply with the contracting requirements described in §62.11 of this title (relating to Contracting Requirements).

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 March 19, 2007.

TRD-200701056

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: April 29, 2007

For further information, please call: (512) 438-4162

Subchapter G. SERVICE REQUIREMENTS

1. GENERAL REQUIREMENTS

40 TAC §§53.701, 53.703, 53.705, 53.707, 53.709, 53.711, 53.713, 53.715, 53.717

Statutory Authority

The 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 §533.061, which requires the HHSC executive commissioner by rule to develop an integrated care management model of Medicaid managed care.

The new sections affect Texas Government Code, §§531.0055, 531.021, and 533.061; and Texas Human Resources Code, §161.021.

§53.701.Referrals.

(a) An LTSS provider must accept all referrals unless:

(1) the referral would cause an AFC home, an ALF, or an NF to exceed its licensed or contracted capacity;

(2) the ALF cannot meet the applicant's or individual's needs;

(3) an applicant's or individual's needs exceed the level of the AFC home; or

(4) an applicant's or individual's needs exceed the capacity of a HCSSA to meet the applicant's or individual's needs in the applicant's or individual's home, and:

(A) there is no third-party resource to meet the need; and

(B) the applicant or individual is unable or unwilling to take responsibility for the unmet needs.

(b) There are two types of referrals:

(1) A negotiated referral is for an applicant or individual whose services must start on a particular date. A negotiated referral may be made due to:

(A) the applicant's or individual's need for immediate services; or

(B) the applicant's or individual's need for services to begin on a particular date.

(2) A routine referral is for an applicant or individual whose needs do not require a specific service initiation date. Service initiation for routine referrals may be the date specified in this subchapter according to the type of service.

§53.703.Acceptance of the Plan of Care.

(a) An LTSS provider must date stamp the POC forms upon receipt from the ICM contractor. The LTSS provider must sign the POC forms to show acceptance of the referral and fax the signed form to the ICM contractor within two working days after receiving the POC forms.

(b) If the LTSS provider does not agree with the POC, the LTSS provider must negotiate with the ICM contractor for a change in the POC.

§53.705.Service Initiation.

(a) An LTSS provider must:

(1) initiate services to an applicant or individual on the date specified in this subchapter according to the type of service;

(2) send a written notice to the ICM contractor of the service initiation date within seven working days after the service initiation date; and

(3) document any delay in service initiation, including:

(A) the reason for the delay; and

(B) the date the LTSS provider anticipates that it will initiate services.

(b) DADS considers the LTSS provider to be in compliance with this section if the reason for the delay is:

(1) beyond the control of the LTSS provider; and

(2) not caused directly by the LTSS provider.

§53.707.General Service Delivery Requirements.

An LTSS provider must provide services:

(1) when the ICM contractor refers the individual for service delivery;

(2) in accordance with the individual's POC;

(3) only if the ICM contractor gives prior written authorization, except as allowed in:

(A) §53.739 of this subchapter (relating to Purchase of Adaptive Aids);

(B) §53.745 of this subchapter (relating to Immediate Purchase of Adaptive Aids);

(B) §53.847 of this subchapter (relating to Purchase of Medical Supplies); and

(D) §53.851 of this subchapter (relating to Immediate Purchase of Medical Supplies);

(4) as described in this subchapter according to the type of service; and

(5) using an employee or subcontractor, or through a contract with a qualified person.

§53.709.Individual Transfers.

(a) If an individual transfers from one LTSS provider to another, the receiving LTSS provider must coordinate with the ICM contractor and the transferring LTSS provider to negotiate the date of the transfer.

(b) The receiving LTSS provider must acknowledge approval of the change of LTSS providers by signing and returning the POC forms to the ICM contractor within two working days after receipt.

§53.711.Plan of Care Changes.

(a) This section does not apply to:

(1) POC changes for personal assistance services; or

(2) a facility service plan developed by an AFC provider, an assisted living provider, or an out- of-home respite provider.

(b) An LTSS provider must send written notice to the ICM contractor within seven working days after the LTSS provider becomes aware of the need or request for a change to the POC. The notification must include:

(1) the date the LTSS provider became aware of the need for the change;

(2) the reason for the change;

(3) the specific change, including the service and amount of the change, if known; and

(4) the anticipated duration of the change.

(c) The LTSS provider must implement an authorized POC change within seven days after receiving the revised POC. This time frame does not apply to:

(1) adaptive aids, as the time frames for adaptive aids are described in §53.743 of this subchapter (relating to Time Frames for Delivery of Adaptive Aids);

(2) dental services, as the time frames for dental services are described in §53.799 of this subchapter (relating to Time Frames for Delivery of Dental Services);

(3) medical supplies, as the time frames for medical supplies are described in §53.849 of this subchapter (relating to Time Frames for Delivery of Medical Supplies); and

(4) minor home modifications, as the time frames for minor home modifications are described in §53.875 of this subchapter (relating to Time Frames for Completion of Minor Home Modifications).

§53.713.Required Notifications.

(a) An LTSS provider must notify the ICM contractor if one or more of the following circumstances occur:

(1) An individual is no longer eligible for Medicaid.

(2) The LTSS provider receives information that indicates an individual no longer meets the medical necessity and level of care criteria for nursing facility care.

(3) The LTSS provider has not delivered sufficient services equal to the amount of the QIT co- payment.

(4) The LTSS provider has reimbursed or will have to reimburse the unused portion of a co-payment to the QIT trustee.

(5) An individual fails to pay a QIT co-payment.

(6) An individual or someone in the individual's home refuses to comply with mandatory ICM waiver requirements.

(7) An individual or someone in the individual's home jeopardizes the health and safety of an attendant but there is no immediate threat to the health or safety of the attendant (for situations that involve an immediate threat, see §53.715 of this division (relating to Suspensions)).

(8) An individual or someone in the individual's home displays or openly uses illegal drugs.

(9) An individual or someone in the individual's home engages in discrimination in violation of applicable law.

(b) In addition to the circumstances in subsection (a) of this section, the LTSS provider must notify the ICM contractor:

(1) for an individual residing in the individual's own home:

(A) if the individual has needs that the LTSS provider cannot adequately meet in the individual's home, and:

(i) there are no third-party resources available to meet the needs;

(ii) the individual is unable or unwilling to take responsibility for those needs; and

(iii) the LTSS provider refuses to serve the individual; or

(B) if an unpaid caregiver providing protective supervision becomes a paid attendant;

(2) for an individual residing in an ALF, as described in §46.45(a) of this title (relating to Required Notifications); and

(3) for an individual residing in an AFC home, as described in §48.8907 of this title (relating to Provider Responsibilities).

(c) The LTSS provider must notify the ICM contractor orally or by fax about a circumstance described in subsections (a) - (b) of this section no later than one working day after the LTSS became aware of the circumstance. If the LTSS provider's first notification is oral, the LTSS provider must send written notice to the ICM contractor within five working days after the initial notification.

(d) The written notice must include:

(1) the date the LTSS provider became aware of the circumstance; and

(2) documentation of the circumstance and any LTSS provider interventions.

§53.715.Suspensions.

(a) An LTSS provider must immediately suspend services if one or more of the following circumstances occur:

(1) An individual permanently leaves the state or moves to a county where the LTSS provider does not contract with DADS and the ICM contractor.

(2) An individual dies.

(3) An individual is admitted to an institution.

(4) An individual requests that services end.

(5) An individual or someone in the individual's home exhibits reckless behavior, which may result in imminent danger to the health and safety of the individual, an attendant, or another person. The LTSS provider must also make an immediate referral to:

(A) the Department of Family and Protective Services or other appropriate protective services agency;

(B) local law enforcement, if appropriate; and

(b) In addition to the circumstances described in subsection (a) of this section, for an individual residing in an ALF, the ALF must suspend services as described in §46.47 of this title (relating to Suspension of Services).

(c) The LTSS provider must notify the ICM contractor orally or by fax about the suspension no later than one working day after services are suspended. If the LTSS provider's first notification is oral, the LTSS provider must send written notification to the ICM contractor within five working days after the initial notification.

(d) The notice of suspension must include:

(1) the date of service suspension;

(2) the reason for the suspension;

(3) the duration of the suspension, if known; and

(4) an explanation of the LTSS provider's attempts to resolve the problem that caused the suspension, including the reasons why the problem was not resolved, unless service was suspended for a reason listed in subsection (a)(1) - (3) of this section.

(e) The LTSS provider must resume services after suspension:

(1) upon the individual's return home or on the date the LTSS provider becomes aware of the individual's return home, if applicable; or

(2) on the date specified in writing by the ICM contractor.

§53.717.Qualified Income Trust.

(a) This section applies only to an LTSS provider serving an individual who has a QIT. The LTSS provider must apply QIT funds to the cost of the individual's ICM waiver services as a co-payment. The ICM contractor notifies the LTSS provider whether or not the individual has a QIT, the QIT trustee's name, the co-payment amount, and which services the individual will purchase with the QIT co-payment.

(b) The LTSS provider must collect the entire co-payment amount from the trustee by:

(1) the 10th day of the month following the service month; or

(2) the 10th day following service initiation, if services began after the first of the month.

(c) When the LTSS provider receives the co-payment, the LTSS provider must issue a written receipt to the trustee. The co-payment receipt must include:

(1) the individual's name;

(2) the trustee's name;

(3) the month, day, and year that the payment was received;

(4) the total amount collected; and

(5) the month and year of the coverage period for the payment received.

(d) The LTSS provider must notify the ICM contractor if any of the QIT circumstances described in §53.713 of this division (relating to Required Notifications) occur.

(e) The LTSS provider must refund any unused portion of a co-payment if the LTSS provider has not delivered sufficient services to equal the co-payment amount. The LTSS provider must refund the unused portion to the trustee:

(1) by the 10th day of the following month; or

(2) within 10 days after termination of the individual's ICM waiver services.

(f) The LTSS provider must not submit a claim for services that the QIT co-payment purchased or designated for purchase.

(g) The LTSS provider must document QIT co-payment transactions on a single document that includes:

(1) the individual's name and Medicaid number;

(2) the POC year;

(3) the LTSS provider's name and vendor number;

(4) the service month and year;

(5) the co-payment amount;

(6) the date of receipt of co-payments;

(7) the service type;

(8) the unit rate;

(9) the number of units delivered;

(10) the number of units purchased with a particular co-payment;

(11) any remaining units billed to the ICM waiver;

(12) any refunded co-payments and the date of the refund; and

(13) transactions for a 12-month period.

(h) The LTSS provider must keep a copy of all co-payment receipts and maintain QIT documentation in the individual's file.

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 March 19, 2007.

TRD-200701057

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: April 29, 2007

For further information, please call: (512) 438-4162

2. ADAPTIVE AIDS

40 TAC §§53.731, 53.733, 53.735, 53.737, 53.739, 53.741, 53.743, 53.745, 53.747, 53.749, 53.751, 53.753, 53.755

Statutory Authority

The 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 §533.061, which requires the HHSC executive commissioner by rule to develop an integrated care management model of Medicaid managed care.

The new sections affect Texas Government Code, §§531.0055, 531.021, and 533.061; and Texas Human Resources Code, §161.021.

§53.731.Definition of Adaptive Aids.

(a) An adaptive aid is a device, control, or appliance that:

(1) increases an individual's ability to perform activities of daily living;

(2) allows the individual to perceive, control, or communicate with the individual's environment;

(3) ensures the individual's safety, security, and accessibility; and

(4) treats, rehabilitates, prevents, or compensates for conditions resulting from a disability or loss of function.

(b) An adaptive aid must be:

(1) necessary to avoid institutionalization;

(2) justified based on assessed need;

(3) approved by the ICM contractor; and

(4) authorized on the individual's POC.

(c) The ICM contractor may spend ICM waiver funds for repairs and maintenance of an adaptive aid not covered by warranty.

(d) An adaptive aid provided to a specific individual using ICM waiver funds must be the exclusive property of that individual.

§53.733.Allowed Adaptive Aids.

The ICM contractor may purchase only the adaptive aids listed in the Community Based Alternatives Provider Manual , Section 4424, Adaptive Aids and Medical Supplies.

§53.735.Need for Adaptive Aids.

An appropriate medical professional must document the need for a requested adaptive aid based on the individual's:

(1) functional need and disability or medical condition; and

(2) need for the item to adequately support the individual living in the most integrated setting appropriate to the individual's needs.

§53.737.Specifications for Adaptive Aids.

(a) A HCSSA must obtain written specifications if an adaptive aid will cost $500 or more. The HCSSA must obtain the written specifications from:

(1) a practitioner;

(2) an RN;

(3) a dentist;

(4) a physical therapist;

(5) an occupational therapist;

(6) a speech-language pathologist; or

(7) other appropriate medical professional.

(b) The HCSSA must record the specifications on a single document that includes:

(1) the individual's name and address;

(2) the adaptive aids that are the subject of the specification;

(3) the specifications themselves;

(4) the printed name and dated signature of the person preparing the specifications; and

(5) the individual's dated signature.

(c) If an individual transfers to a new HCSSA before purchasing an adaptive aid, the transferring HCSSA must provide a copy of the specifications to the individual's new HCSSA.

(d) The new HCSSA may use the adaptive aid specifications prepared by the transferring HCSSA if seeking the same adaptive aid for the transferring individual.

§53.739.Purchase of Adaptive Aids.

(a) A request for purchase of an adaptive aid may be initiated by:

(1) an individual;

(2) an ICM contractor; or

(3) a HCSSA.

(b) A HCSSA must document the rationale for the purchase of all adaptive aids as described in §53.409 of this chapter (relating to Purchase Rationale Documentation).

(c) Before purchasing an adaptive aid costing less than $500, the HCSSA must obtain bids from a minimum of three suppliers as described in §53.1003 of this chapter (relating to Bids for Adaptive Aids, Medical Supplies, and Minor Home Modifications), or use price lists as described in §53.1005 of this chapter (relating to Price Lists).

(d) Before purchasing an adaptive aid costing $500 or more, the HCSSA must:

(1) obtain written specifications as described in §53.737 of this division (relating to Specifications for Adaptive Aids); and

(2) obtain bids from a minimum of three suppliers as described in §53.1003 of this chapter or use a price list as described in §53.1005 of this chapter is used.

(e) The HCSSA must purchase the lowest-priced adaptive aid unless a more expensive adaptive aid is more cost-effective. If the HCSSA purchases a more expensive adaptive aid, the HCSSA must document the reason for purchasing the more expensive adaptive aid. A reason for the more expensive purchase may be:

(1) a better delivery time;

(2) the supplier's record of quality service;

(3) the expected life of the item;

(4) the availability of extended warranties;

(5) the service agreements and other safeguards for repairs, maintenance, and replacement of the item;

(6) the distance between providers of services, parts, repairs, and maintenance and the individual; and

(7) the supplier's ability, while servicing the equipment, to provide loaner equipment.

(f) The HCSSA must ensure that the supplier uses:

(1) the most cost-effective method of delivery to deliver the adaptive aid; and

(2) overnight delivery only in an emergency.

(g) A HCSSA may deliver an adaptive aid before receiving written authorization for the adaptive aid if the adaptive aid:

(1) costs less than $200; and

(2) is allowed as described in §53.733 of this division (relating to Allowed Adaptive Aids).

§53.741.Enhancements to Adaptive Aids.

(a) If an individual requests an enhancement to an adaptive aid, a HCSSA must:

(1) explain to the individual what the ICM waiver will pay for and what the individual's costs for the enhancement will be; and

(2) document that the HCSSA made this explanation.

(b) The documentation required in subsection (a)(2) of this section must include the signatures of the individual and the HCSSA staff who provided the explanation.

(c) If the enhancement results in a need for a change in the specifications, the individual must pay for any cost related to the new specifications, including restocking fees and new written specification costs.

(d) If the requirements in subsections (a) - (c) of this section are met, and the individual agrees to pay the associated costs, the HCSSA must provide the enhancement.

§53.743.Time Frames for Delivery of Adaptive Aids.

(a) When delivering an adaptive aid costing less than $200, as described in §53.739(g) of this division (relating to Purchase of Adaptive Aids), a HCSSA must deliver the adaptive aid within 14 working days after the HCSSA became aware of the need for the adaptive aid.

(b) For an adaptive aid costing less than $500, the HCSSA must deliver the adaptive aid within 14 working days after the later of:

(1) the effective date of the POC; or

(2) the date the HCSSA receives and date stamps the POC forms, unless the HCSSA fails to stamp the receipt date on the form, in which case the effective date of the POC will be used to determine timeliness.

(c) For an adaptive aid costing $500 or more, the HCSSA must deliver the adaptive aid within 30 working days after the later of:

(1) the effective date of the POC; or

(2) the date the HCSSA receives and date stamps the POC form, unless the HCSSA fails to stamp the receipt date on the form, in which case the effective date of the POC will be used to determine timeliness.

(d) If the applicable due date noted in subsections (a) - (c) of this section is not met, the HCSSA must notify the individual and the ICM contractor in writing of the delay and provide them with a revised delivery date.

(1) The HCSSA must provide the notice on or before the applicable due date noted in subsections (a) - (c) of this section.

(2) DADS considers the HCSSA to be in compliance with this section if the reason for the delay is:

(A) beyond the control of the HCSSA; and

(B) not caused directly by the HCSSA.

§53.745.Immediate Purchase of Adaptive Aids.

(a) An immediate purchase of an adaptive aid is necessary when an individual is unsafe because the adaptive aid is not available or not functioning properly, and not having the adaptive aid poses imminent harm to the individual's well being.

(b) Bids are not required if the purchase of an adaptive aid meets the requirements of this section.

(1) assess the immediate needs of the individual;

(2) determine and document the existence of a health and safety issue related to the immediate purchase of the requested adaptive aid;

(3) ensure that the adaptive aid is allowed as described in §53.733 of this division (relating to Allowed Adaptive Aids); and

(4) ensure the need for the adaptive aid as described in §53.735 of this division (relating to Need for Adaptive Aids).

(d) The HCSSA must deliver the adaptive aid within two working days after identifying the need for the item.

(e) The HCSSA must send written notice of an immediate purchase and delivery date to the ICM contractor within seven days after identifying the need for the item. The notice must include a copy of the appropriate medical professional's supporting documentation demonstrating how the individual would be unsafe if the HCSSA did not purchase and deliver the item using these procedures.

§53.747.Rental of Adaptive Aids.

(a) A HCSSA must consider renting adaptive aids:

(1) while the HCSSA is accessing a third-party resource;

(2) as replacement equipment while repairs or maintenance of adaptive aids are being performed;

(3) if the HCSSA cannot determine a permanent need for the adaptive aid;

(4) if the HCSSA cannot determine the specific type of adaptive aid necessary; or

(5) if the individual must have the item immediately.

(b) The HCSSA my rent an adaptive aid for up to 90 days.

(d) To rent an adaptive aid, the HCSSA must take the same steps required for purchase of an adaptive aid, as described in §53.739 of this division (relating to Purchase of Adaptive Aids) or in §53.745 of this division (relating to Immediate Purchase of Adaptive Aids).

§53.749.Vehicle Modifications as Adaptive Aids.

(a) A HCSSA must obtain written approval from the vehicle's owner before making a vehicle modification. The owner must sign and date the approval.

(b) The specifications for a vehicle modification must include:

(1) information on the vehicle to be modified, including:

(A) the year and model of the vehicle;

(B) a determination that the vehicle to be modified is the individual's primary vehicle;

(D) current state inspection and registration for the vehicle;

(E) any required state insurance for the vehicle; and

(F) the mileage of the vehicle; and

(2) information on the needed modifications, including;

(A) an itemized list of parts and accessories, including prices;

(B) an itemized list of required labor, including labor charges; and

(c) If a vehicle modification costs $1,000 or more and the vehicle has been driven more than 75,000 miles or is over four years old, the HCSSA must:

(1) obtain a written evaluation by an experienced mechanic to ensure the sound mechanical condition of all major components of the vehicle;

(2) document the experience of the mechanic doing the evaluation; and

(3) include the actual cost of the written evaluation as part of the invoice cost not to exceed $150.

§53.751.Computers as Adaptive Aids.

(a) A computer as an adaptive aid must be used:

(1) for enhanced communication; or

(2) as an environmental control to ensure the health and safety of the individual and assist with activities of daily living.

(b) The service coordination team must approve a computer evaluation, which must include:

(1) an assessment of the individual's ability to use a computer;

(2) specifications for the computer equipment, software, accessories, and adapted workstation needed by the individual;

(3) a description of the purpose and benefits of the computer to the individual;

(4) the most cost-effective equipment that will run the necessary software; and

(5) documentation that the requested item is:

(A) a computer system based on current market technology; and

(B) the appropriate software identified in the computer evaluation is based on the individual's need.

(c) Any of the following persons may complete a computer evaluation, develop specifications, and provide training to the individual on the computer and associated software:

(1) a licensed speech-language pathologist;

(2) a licensed occupational therapist;

(3) a certified rehabilitation-engineering technologist;

(4) an assistive technology practitioner; or

(5) any other qualified personnel.

(d) The evaluation, specifications, and training are reimbursed at actual cost as part of the invoice cost not to exceed $500.

§53.753.Repair and Maintenance of Adaptive Aids.

During an assessment, an appropriate medical professional must:

(1) review any adaptive aid used by the individual;

(2) assess whether the adaptive aid requires repair, routine maintenance or replacement, based on:

(A) the age and condition of the item; and

(B) the estimated repair or maintenance costs;

(3) estimate the repair and routine maintenance costs not covered by:

(A) the warranty;

(B) the service agreement; or

(4) ensure that the justification of the repair and routine maintenance costs is based on:

(A) knowledge of necessary repairs; and

(B) knowledge of routine maintenance recommended or required, or to keep the warranty effective; and

(5) document the rationale for adding monetary allocations for repairs and routine maintenance on the appropriate POC forms.

§53.755.Adaptive Aid Delivery, Orientation, and Satisfaction.

(a) A HCSSA must orient the individual on the use of the adaptive aid within seven days after delivery.

(1) The following persons may provide the orientation:

(A) the HCSSA's RN or licensed vocational nurse;

(B) a therapist;

(D) other HCSSA staff who:

(i) were involved in the purchase of the adaptive aid; and

(ii) are knowledgeable about the particular adaptive aid provided.

(2) The HCSSA may provide the orientation by telephone if the adaptive aid costs less than $500.

(3) The HCSSA must provide the orientation in person:

(A) if the adaptive aid costs $500 or more; or

(B) if the individual needs additional orientation.

(b) The HCSSA must contact the individual within seven days after delivery to verify delivery of the adaptive aid, and to determine if the individual is satisfied with the adaptive aid or if further orientation is necessary.

(1) A separate contact is not required if HCSSA staff provide the orientation described in subsection (a) of this section.

(2) The HCSSA must contact the individual if an employee of the supplier who delivered the adaptive aid provides the orientation.

(3) If a supplier delivers an adaptive aid before the authorization date of ICM waiver services due to efforts to obtain payment by a third-party resource, the HCSSA must contact the individual within seven days after the later of:

(A) the effective date of the POC; or

(B) the date the HCSSA receives and date stamps the POC form, unless the HCSSA fails to stamp the receipt date on the form, in which case the effective date of the POC will be used to determine timeliness.

(c) The HCSSA must make a home visit within 14 days after the initial contact if the individual needs more orientation or is not satisfied with the adaptive aid. This visit must be made by a nurse or therapist.

(d) The HCSSA must document the purchase completion and satisfaction as described in §53.1011 of this chapter (relating to Purchase Completion and Satisfaction Documentation).

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 March 19, 2007.

TRD-200701058

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: April 29, 2007

For further information, please call: (512) 438-4162

3. ADULT FOSTER CARE

40 TAC §53.761, §53.763

Statutory Authority

The 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 §533.061, which requires the HHSC executive commissioner by rule to develop an integrated care management model of Medicaid managed care.

The new sections affect Texas Government Code, §§531.0055, 531.021, and 533.061; and Texas Human Resources Code, §161.021.

§53.761.Adult Foster Care Requirements.

An AFC provider must provide AFC as described in §48.8907 of this title (relating to Provider Responsibilities).

§53.763.Orientation of Level I and II Adult Foster Care Providers.

(a) An appropriate medical professional must provide orientation to the AFC provider and AFC substitute providers, unless the AFC provider is a licensed RN, on or before:

(1) the day the individual is determined eligible for ICM waiver services; or

(2) the individual becomes a resident of the AFC home.

(b) The appropriate medical professional must provide orientation to the AFC provider and AFC substitute providers regarding:

(1) the individual's health condition and how it may affect the performance of tasks;

(2) performance of skilled nursing tasks, if delegated; and

(3) symptoms or changes in the individual's health status about which the AFC provider must notify the ICM contractor.

(c) The ICM contractor and the AFC provider must maintain documentation of the AFC provider's and AFC substitute provider's orientation in the individual's file.

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 March 19, 2007.

TRD-200701059

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: April 29, 2007

For further information, please call: (512) 438-4162

4. ASSISTED LIVING SERVICES

40 TAC §53.771

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; 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 §533.061, which requires the HHSC executive commissioner by rule to develop an integrated care management model of Medicaid managed care.

The new section affects Texas Government Code, §§531.0055, 531.021, and 533.061; and Texas Human Resources Code, §161.021.

§53.771.Assisted Living Services.

An ALF must provide assisted living services as described Chapter 46 of this title (relating to Contracting to Provide Assisted Living and Residential Care Services).

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 March 19, 2007.

TRD-200701060

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: April 29, 2007

For further information, please call: (512) 438-4162

5. CONSUMER DIRECTED SERVICES

40 TAC §53.781, §53.783

Statutory Authority

The 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 §533.061, which requires the HHSC executive commissioner by rule to develop an integrated care management model of Medicaid managed care.

The new sections affect Texas Government Code, §§531.0055, 531.021, and 533.061; and Texas Human Resources Code, §161.021.

§53.781.Consumer Directed Services Agency Requirements.

A CDSA must provide financial management services to an individual who chooses the CDS option for service delivery, as described in Chapter 41 of this title (relating to Consumer Directed Services Option).

§53.783.HCSSA Role in Consumer Directed Services.

(a) If an individual receives services through the CDS option, a HCSSA must provide the following services, if the services are on the POC and are not available through a third-party resource:

(1) adaptive aids;

(2) medical supplies;

(3) minor home modifications;

(4) skilled nursing services not specified in subsection (b) of this section; and

(5) therapy services.

(b) A medical professional is not responsible for supervising any tasks listed in Government Code, §531.051(h) if an individual receiving services through the CDS option has chosen to supervise any of the allowed tasks.

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 March 19, 2007.

TRD-200701061

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: April 29, 2007

For further information, please call: (512) 438-4162

6. DENTAL SERVICES

40 TAC §§53.791, 53.793, 53.795, 53.797, 53.799, 53.801

Statutory Authority

The 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 §533.061, which requires the HHSC executive commissioner by rule to develop an integrated care management model of Medicaid managed care.

The new sections affect Texas Government Code, §§531.0055, 531.021, and 533.061; and Texas Human Resources Code, §161.021.

§53.791.Definition of Dental Services.

Dental services include:

(1) operative procedures that are required to prevent the imminent loss of teeth;

(2) treatment of injuries to the teeth or supporting structures; and

(3) dentures and cost of fitting and preparation for dentures, including extractions and molds.

§53.793.Need for Dental Services.

A licensed dentist must determine an individual's need for dental services.

§53.795.Evaluation for Dental Services.

(a) A HCSSA may obtain, without prior approval from the ICM contractor:

(1) one initial non-emergency dental evaluation that costs $200 or less performed by a general dentist per POC year; and

(2) additional dental evaluations that cost $200 or less performed by a specialist based on a referral from a general dentist. A specialist dental evaluation is usually performed before endodontic treatment or oral surgery.

(b) The HCSSA must submit the actual cost of the evaluations for dental services to the ICM contractor on the appropriate POC forms.

§53.797.Authorization for Dental Services.

(a) The HCSSA must obtain a price quote from one dentist for dental services. The HCSSA may obtain a price quote from more than one dentist.

(b) Before the provision of any dental service, the HCSSA must submit to the ICM contractor the:

(1) evaluation of the need for the dental services;

(2) type of dental services;

(3) estimate of the total cost of the dental services; and

(4) appropriate POC forms.

(d) The HCSSA must not deliver any dental services without a referral from the ICM contractor.

§53.799.Time Frames for Delivery of Dental Services.

(a) A HCSSA must ensure the initiation of dental services within 14 working days after the later of:

(1) the effective date of the POC; or

(b) If the applicable due date noted in subsection (a) of this section is not met, the HCSSA must notify the individual and the ICM contractor in writing of the delay and provide them with a revised dental services initiation date.

(1) The notice must be provided on or before the applicable due date noted in subsection (a) of this section.

(2) DADS considers the HCSSA to be in compliance with this section if the reason for the delay is:

(A) beyond the control of the HCSSA; and

(B) not caused directly by the HCSSA.

§53.801.Emergency Dental Services.

(a) An emergency dental service is a treatment procedure that is necessary to control bleeding, relieve pain, and eliminate acute infection.

(b) The HCSSA must obtain the following from the dentist:

(1) an assessment of the immediate needs of the individual; and

(2) documentation supporting the existence of a health and safety issue related to the immediate provision of dental services.

(d) The HCSSA must send written notice of the provision of emergency dental services to the ICM contractor within seven days after the provision of the emergency dental services. The notice must include the total cost of the dental services.

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 March 19, 2007.

TRD-200701062

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: April 29, 2007

For further information, please call: (512) 438-4162

7. EMERGENCY RESPONSE SERVICES

40 TAC §53.811

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; 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 §533.061, which requires the HHSC executive commissioner by rule to develop an integrated care management model of Medicaid managed care.

The new section affects Texas Government Code, §§531.0055, 531.021, and 533.061; and Texas Human Resources Code, §161.021.

§53.811.Emergency Response Services Requirements.

An ERS agency must deliver emergency response services as described in Chapter 52 of this title (relating to Contracting to Provide Emergency Response Services).

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 March 19, 2007.

TRD-200701063

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: April 29, 2007

For further information, please call: (512) 438-4162

8. HOME-DELIVERED MEALS

40 TAC §53.821

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; 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 §533.061, which requires the HHSC executive commissioner by rule to develop an integrated care management model of Medicaid managed care.

The new section affects Texas Government Code, §§531.0055, 531.021, and 533.061; and Texas Human Resources Code, §161.021.

§53.821.Home-delivered Meals Requirements.

An HDM agency must deliver home-delivered meals as described in Chapter 55 of this title (relating to Contracting to Provide Home-delivered Meals).

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 March 19, 2007.

TRD-200701064

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: April 29, 2007

For further information, please call: (512) 438-4162

9. IN-HOME RESPITE SERVICES

40 TAC §53.831

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; 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 §533.061, which requires the HHSC executive commissioner by rule to develop an integrated care management model of Medicaid managed care.

The new section affects Texas Government Code, §§531.0055, 531.021, and 533.061; and Texas Human Resources Code, §161.021.

§53.831.In-Home Respite Services Requirements.

(a) In-home respite services are:

(1) provided to an individual who is unable to care for himself when the unpaid caregiver is absent or needs relief;

(2) furnished on a temporary basis; and

(3) provided for the paid caregiver to provide relief for a period when the paid caregiver normally provides uncompensated care.

(b) In-home respite services must be authorized in the individual's POC before delivery.

(1) in the individual's home or other private residence; and

(2) by an attendant who:

(A) is not the individual's spouse or paid caregiver; and

(B) receives orientation or training described in §53.903 of this subchapter (relating to Attendant Orientation).

(d) The HCSSA must coordinate in-home respite services to ensure that service delivery does not conflict with other services the individual receives.

(e) The HCSSA may provide in-home respite services overnight if the individual requires an attendant to be awake for service delivery.

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 March 19, 2007.

TRD-200701065

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services p> Earliest possible date of adoption: April 29, 2007

For further information, please call: (512) 438-4162

DIVISION 10. MEDICAL SUPPLIES

40 TAC §§53.841, 53.843, 53.845, 53.847, 53.849, 53.851

Statutory Authority

The 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 §533.061, which requires the HHSC executive commissioner by rule to develop an integrated care management model of Medicaid managed care.

The new sections affect Texas Government Code, §§531.0055, 531.021, and 533.061; and Texas Human Resources Code, §161.021.

§53.841.Definition of Medical Supplies.

A medical supply is a disposable item that is medically necessary to meet the needs of the individual.

§53.843.Allowed Medical Supplies.

Medical supplies allowed in the ICM waiver are listed in the Community Based Alternatives Provider Manual, Section 4424, Adaptive Aids and Medical Supplies.

§53.845.Need for Medical Supplies.

An appropriate medical professional must document the necessity for a requested medical supply based on the individual's:

(1) functional need and disability or medical condition; and

(2) need for the item to adequately support the individual living in the most integrated setting appropriate to the individual's needs.

§53.847.Purchase of Medical Supplies.

(a) A request for purchase of medical supplies may be initiated by:

(1) the individual;

(2) the ICM contractor; or

(3) a HCSSA.

(b) Before purchasing medical supplies, the HCSSA must:

(1) obtain bids from a minimum of three suppliers as described in §53.1003 of this chapter (relating to Bids for Adaptive Aids, Medical Supplies, and Minor Home Modifications) or use price lists as described in §53.1005 of this chapter (relating to Price Lists); and

(2) document the rationale for the purchase as described in §53.409 of this chapter (relating to Purchase Rationale Documentation).

(c) The HCSSA must purchase the lowest-priced medical supplies unless more expensive medical supplies are more cost-effective. If the HCSSA purchases more expensive medical supplies, the HCSSA must document the reason for purchasing the more expensive medical supplies. A reason for the more expensive purchase may be:

(1) a better delivery time;

(2) the supplier's record of quality service;

(3) the expected life of the item;

(4) the availability of extended warranties;

(5) the service agreements and other safeguards for repairs, maintenance, and replacement of the item;

(6) the distance between providers of services, parts, repairs, and maintenance and the individual; and

(7) the supplier's ability, while servicing the equipment, to provide loaner equipment.

(d) The HCSSA must ensure that the supplier uses:

(1) the most cost-effective method of delivery to deliver the medical supply; and

(2) overnight delivery only in an emergency.

(e) The HCSSA may deliver medical supplies before receiving written authorization for the medical supplies, if the medical supplies:

(1) cost less than $200; and

(2) are allowed as provided in §53.843 of this division (relating to Allowed Medical Supplies).

§53.849.Time Frames for Delivery of Medical Supplies.

(a) A HCSSA must deliver the medical supplies within five working days after:

(1) the effective date of the POC change; or

(2) the date the HCSSA receives the POC form, unless the HCSSA fails to stamp the receipt date on the form, in which case the effective date of the POC will be used to determine timeliness.

(b) The HCSSA is not required to deliver medical supplies within the time frames described in subsection (a) of this section if the item is not locally available.

(c) If the HCSSA does not meet a due date noted in subsection (a) of this section, the HCSSA must notify the individual and the ICM contractor in writing of the delay and provide them with a revised delivery date.

(1) The HCSSA must provide the notice on or before the applicable due date noted in subsection (a) of this section.

(2) DADS considers the HCSSA to be in compliance with this section if the reason for the delay is:

(A) beyond the control of the HCSSA; and

(B) not caused directly by the HCSSA.

§53.851.Immediate Purchase of Medical Supplies.

(a) An immediate purchase of medical supplies is necessary if an individual is unsafe because the medical supply is not available or not functioning properly, and not having the medical supply poses imminent harm to an individual's well being.

(b) Bids are not required if the medical supplies meet the requirements in this section.

(1) assess the immediate needs of the individual;

(2) determine and document the existence of a health and safety issue related to the purchase of the requested medical supplies; and

(3) ensure that the medical supplies are allowed as provided in §53.843 of this division (relating to Allowed Medical Supplies).

(d) The HCSSA must deliver the medical supplies within two working days after identifying the need for the items.

(e) The HCSSA must send written notice of an immediate purchase and delivery date to the ICM contractor within seven days after identifying the need for the medical supplies. The notice must include a copy of the appropriate medical professional's supporting documentation demonstrating how the individual would be unsafe if the HCSSA did not purchase and deliver the medical supplies using these procedures.

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 March 19, 2007.

TRD-200701066

Kenneth L. Owens p> General Counsel

Department of Aging and Disability Services p> Earliest possible date of adoption: April 29, 2007

For further information, please call: (512) 438-4162

DIVISION 11. MINOR HOME MODIFICATIONS

40 TAC §§53.861, 53.863, 53.865, 53.867, 53.869, 53.871, 53.873, 53.875, 53.877, 53.879, 53.881, 53.883

Statutory Authority

The 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 §533.061, which requires the HHSC executive commissioner by rule to develop an integrated care management model of Medicaid managed care.

The new sections affect Texas Government Code, §§531.0055, 531.021, and 533.061; and Texas Human Resources Code, §161.021.

§53.861.Definition of Minor Home Modifications.

(a) A minor home modification is a physical adaptation to an individual's home that:

(1) is essential for the individual's safe access to and movement within the home;

(2) facilitates self-reliance and independence; and

(3) allows the individual to:

(A) remain safely in the community;

(B) return safely to the community; or

(b) A minor home modification can include repair or maintenance of an existing modification.

(1) create a new structure;

(2) add square footage to the home;

(3) be for improving non-disability related fixtures, structures, or appliances;

(4) be for remodeling, routine maintenance or repair, or general utility; or

(5) be a direct or restorative benefit to the individual's home (for example, carpeting, roof repair, carbon monoxide detector, or central air conditioning).

§53.863.Allowed Minor Home Modifications.

Minor home modifications allowed in the ICM waiver are listed in the Community Based Alternatives Provider Manual, Section 4425, Minor Home Modifications.

§53.865.Need for Minor Home Modifications.

An appropriate medical professional must determine the necessity for the requested minor home modification based on the individual's:

(1) functional need and disability or medical condition; and

(2) need for the minor home modification to adequately support the individual living in the most integrated setting appropriate to the individual's needs.

§53.867.Specifications for Minor Home Modifications.

(a) A HCSSA must obtain written specifications if a single minor home modification will cost $1,000 or more, excluding any associated fees. The HCSSA must obtain separate written specifications if different contractors will complete different parts of the modification.

(b) A person with home modification experience must prepare the written specifications. The HCSSA must document the experience of the person preparing the specifications.

(1) the individual's name and address;

(2) the home modification that is the subject of the specification;

(3) the specifications themselves, including applicable local regulations, construction requirements, and Texas Accessibility Standards;

(4) the printed name and dated signature of the person providing the specifications; and

(5) the individual's dated signature.

(d) If an individual transfers to a new HCSSA before construction starts on a minor home modification, the transferring HCSSA must provide a copy of the specifications to the individual's new HCSSA.

(e) The new HCSSA may use the minor home specifications prepared by the transferring HCSSA if seeking the same minor home modification for the transferring individual.

§53.869.Owner and Individual Approval for Minor Home Modifications.

(a) The HCSSA must obtain written approval for a minor home modification from the property owner before beginning work on the modification, unless the individual's written rental agreement for the property allows for the modification.

(b) The request for owner approval of the minor home modification must be on a single document that includes:

(1) the individual's name and address;

(2) the specifications for the minor home modification;

(3) the individual's approval or disapproval of the modification;

(4) the individual's dated signature;

(5) the property owner's approval or disapproval of the modification; and

(6) the property owner's printed name and dated signature.

§53.871.Purchase of Minor Home Modifications.

(a) A request for purchase of a minor home modification may be initiated by:

(1) an individual;

(2) an ICM contractor; or

(3) a HCSSA.

(b) A HCSSA must document the rationale for the purchase of all minor home modifications as described in §53.409 of this chapter (relating to Purchase Rationale Documentation).

(c) Before purchasing a minor home modification costing $1,000 or more, the HCSSA must obtain three written bids based on the written specifications. The same information must be available to all bidders. Multiple minor home modifications must be included in the same bid if one contractor is completing multiple modifications as one job.

(d) The HCSSA must not hire or reimburse a related party for:

(1) any work related to the minor home modification; or

(2) preparing specifications or performing inspections related to the minor home modification.

(e) The HCSSA or its employee, as a separate contractor, can make the necessary minor home modification if it follows the bidding procedure in this section and meets the same requirements.

(f) If an individual transfers to a new HCSSA before purchasing a minor home modification, the new HCSSA may use bids obtained by the transferring HCSSA if the new approves the same minor home modification for a transferring individual.

(g) The HCSSA must ensure that all applicable building permits are obtained before starting a minor home modification.

§53.873.Enhancements to Minor Home Modifications.

(a) If an individual wishes to pay for an enhancement to a minor home modification, the HCSSA must:

(1) explain to the individual what the ICM waiver will pay for; and

(2) document that the HCSSA made this explanation.

(b) The documentation required in subsection (a)(2) of this section must include the signatures of the individual and the ICM contractor staff who provided the explanation.

(c) If the enhancement results in a need for a change in the specifications, the individual must pay for any cost related to the new specifications, including new written specification costs.

(d) If the requirements in subsections (a) - (c) of this section are met, and the individual agrees to pay the associated costs, the HCSSA must provide the enhancement.

§53.875.Time Frames for Completion of Minor Home Modifications.

(a) For a minor home modification costing less than $1,000, the HCSSA must complete the minor home modification within 30 working days after the later of:

(1) the effective date of the POC; or

(b) For a minor home modification costing $1,000 or more, the HCSSA must complete the minor home modification within 60 working days from the later of:

(1) the effective date of the POC; or

(c) If the applicable due date noted in subsection (a) or (b) of this section is not met, the HCSSA must notify the individual and the ICM contractor in writing of the delay and provide them with a revised completion date.

(1) The HCSSA must provide the notice on or before the applicable due date noted in subsection (a) or (b) of this section.

(2) DADS considers the HCSSA to be in compliance with this section if the reason for the delay is:

(A) beyond the control of the HCSSA; and

(B) not caused directly by the HCSSA.

(d) If the individual is transferring to a new HCSSA, the transferring HCSSA must complete a minor home modification under construction before the individual transfers to a new HCSSA.

(e) If a minor home modification has more than one bid packet because of several jobs being done, the time frame for completion is related to the cost of each job.

§53.877.Minor Home Modifications for Applicants in a Nursing Facility.

(a) If a HCSSA must complete a minor home modification before an applicant who resides in a nursing facility transitions to the community, the HCSSA must complete the modification according to minor home modification requirements found in this division.

(b) The HCSSA must complete the minor home modification by a negotiated date, which must be before the release date of the individual from the nursing facility.

(c) The HCSSA must use the effective date of ICM waiver services as the minor home modification completion date if the individual is not leaving a nursing facility. If the ICM contractor denies ICM waiver services for the applicant, the minor home modification is a reimbursable administrative expense.

§53.879.Minor Home Modification Inspections.

(a) A HCSSA must inspect each minor home modification within seven working days after the completion date. The on-site inspection verifies that the modification was completed and that it complies with any written specifications.

(b) An experienced inspector must complete the inspection.

(1) the contractor who completed the modification or the individual's attendant; or

(2) a related party, the HCSSA, or any employee of the HCSSA.

§53.881.Accountability for Minor Home Modifications.

A HCSSA is responsible for all repairs or replacement of minor home modifications during the first year after completion, if the completed minor home modification initially met specifications, unless the individual or the individual's family members caused the need for repair or replacement.

§53.883.Minor Home Modification Completion and Satisfaction.

(a) A HCSSA must contact the individual to verify completion of the minor home modification and to determine satisfaction with the minor home modification within seven days after the inspection described in §53.879 of this division (relating to Minor Home Modification Inspections).

(b) The HCSSA must make a home visit within 14 days after the contact if the individual is not satisfied with the minor home modification. This visit must be made by a nurse or a therapist, who must attempt to resolve the problem.

(c) The HCSSA must document the purchase completion and satisfaction as described in §53.1011 of this chapter (relating to Purchase Completion and Satisfaction Documentation).

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 March 19, 2007.

TRD-200701067

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: April 29, 2007

For further information, please call: (512) 438-4162

DIVISION 12. OUT-OF-HOME RESPITE SERVICES

40 TAC §53.891, §53.893

Statutory Authority

The 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 §533.061, which requires the HHSC executive commissioner by rule to develop an integrated care management model of Medicaid managed care.

The new sections affect Texas Government Code, §§531.0055, 531.021, and 533.061; and Texas Human Resources Code, §161.021.

§53.891.Out-of-Home Respite Services Requirements.

(a) An individual may receive out-of-home respite services if the individual:

(1) resides in the individual's own home or a family member's home;

(2) does not reside in an AFC home or an ALF;

(3) has a primary caregiver who provides uncompensated care and needs relief either on an emergency or planned short-term basis; and

(4) requires services or supervision 24-hours a day.

(b) An individual may receive out-of-home respite services in:

(1) an AFC home;

(2) an ALF; or

(3) a licensed nursing facility.

(c) Out-of-home respite services may be provided as often as needed for caregiver relief or emergency absences of the caregiver.

(d) Out-of-home respite services must be delivered:

(1) as authorized on the POC;

(2) in accordance with the applicable licensure requirements for the out-of-home respite facility; and

(3) in accordance with contract requirements.

(e) An individual who receives out-of-home respite services may receive therapy services from an outside provider.

(f) The individual may take any adaptive aids the individual is using to the out-of-home respite facility.

§53.893.Additional Requirements for Out-of-Home Respite Services in an Adult Foster Care Home.

(a) An individual who receives out-of-home respite services in an AFC home must qualify for placement in the applicable level of the adult foster home.

(b) An individual who receives out-of-home respite services in an AFC home may receive the following waiver services from outside providers while receiving services in the out-of-home respite setting, in addition to those listed in §53.891 of this division (relating to Out-of-Home Respite Services Requirements):

(1) medical supplies; or

(2) skilled nursing.

(c) A HCSSA's RN may delegate skilled nursing services to a Level I or Level II AFC provider according to the professional judgment of the HCSSA RN.

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 March 19, 2007.

TRD-200701068

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: April 29, 2007

For further information, please call: (512) 438-4162

DIVISION 13. PERSONAL ASSISTANCE SERVICES

40 TAC §§53.901, 53.903, 53.905, 53.907, 53.909, 53.911

Statutory Authority

The 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 §533.061, which requires the HHSC executive commissioner by rule to develop an integrated care management model of Medicaid managed care.

The new sections affect Texas Government Code, §§531.0055, 531.021, and 533.061; and Texas Human Resources Code, §161.021.

§53.901.Attendant Qualifications.

(a) In addition to the requirements described in §97.401 of this title (relating to Standards Specific to Licensed Home Health Services), an attendant providing personal assistance services must:

(1) be an employee of a HCSSA;

(2) not be the spouse of the individual; and

(3) show competence in providing personal assistance services as described in §53.109 of this chapter (relating to Personal Assistance Services) to the satisfaction of the HCSSA's RN supervisor, as documented by the HCSSA in the attendant orientation documentation described in §53.903 of this division (relating to Attendant Orientation).

(b) The HCSSA must hire an attendant chosen by the individual if the chosen attendant:

(1) meets minimum qualifications for the service and the requirements in subsection (a) of this section;

(2) is willing to be employed by the HCSSA;

(3) is willing to deliver the service according to the individual's POC; and

(4) is determined competent by the HCSSA's RN supervisor to deliver the service according to the individual's POC.

§53.903.Attendant Orientation.

(a) In addition to the requirements described in this section, an attendant must be oriented as described in Chapter 97, Subchapter C of this title (relating to Minimum Standards for All Home and Community Support Services Agencies) and §97.401 of this title (relating to Standards Specific to Licensed Home Health Services).

(b) An attendant must receive orientation in person in the individual's home or where the attendant delivers services if that is another location.

(1) If an attendant receives the orientation in person, the individual must be present.

(2) At the discretion of the HCSSA's RN supervisor, an attendant may receive orientation by telephone or in the HCSSA's office, if the attendant:

(A) meets the requirements described in §97.701 of this title (relating to Home Health Aides); or

(B) has six continuous months of experience in delivering attendant care.

(3) An attendant may receive orientation by telephone, at the discretion of the HCSSA's RN supervisor, if:

(A) the service plan changes; or

(B) the attendant previously worked for the individual.

(4) The HCSSA's RN supervisor may use discretion to determine if the attendant needs orientation, if:

(A) the attendant previously worked for the individual; and

(B) the individual's POC has not changed since the attendant worked for the individual.

(c) The HCSSA's RN supervisor must orient each attendant on or before the time the attendant begins to provide personal assistance services.

(d) The HCSSA's RN supervisor must record the attendant orientation on a single document that includes:

(1) the individual's name and Medicaid number;

(2) the attendant's name;

(3) the date of the attendant's orientation;

(4) whether the HCSSA's RN supervisor conducted the orientation with the individual in person or by telephone;

(5) information about how the individual's health condition affects the performance of the task;

(6) the attendant's performance of the tasks, including delegated skilled nursing tasks;

(7) the service schedule, including the number of hours the attendant provides to the individual;

(8) the total number of authorized hours the individual receives;

(9) safety and emergency procedures;

(10) specific situations about which the attendant should notify the HCSSA, including:

(A) changes in the individual's health condition;

(B) incidents that affect the individual's health condition;

(D) the individual's absence or relocation from home; and

(E) the attendant's inability to work; and

(11) the signature of:

(A) the HCSSA's RN supervisor who conducts the orientation;

(B) the attendant who is oriented, if present; and

(e) Orientation is not required for a HCSSA's RN who is acting as an attendant.

§53.905.Personal Assistance Services Service Delivery.

(a) A HCSSA must initiate personal assistance services:

(1) to an individual with a negotiated referral, as described in §53.701(b)(1) of this subchapter (relating to Referrals) on the date negotiated; or

(2) to an individual with a routine referral, as described in §53.701(b)(2) of this subchapter, within seven days after the later of:

(A) the effective date of the POC; or

(b) The HCSSA must ensure that:

(1) all authorized and scheduled services are provided to an individual, except in the case of a service interruption, as defined in §53.907 of this division (relating to Personal Assistance Services Service Interruption); and

(2) the individual does not receive more than the monthly authorized hours of service on the POC.

(c) The HCSSA must not exceed the monthly authorized hours of service, except in the case of a temporary increase in hours of service that is:

(1) due to unusual circumstances involving the individual's need; and

(2) requested by the individual.

(d) Subsection (c) of this section does not apply to the circumstances described in §53.909 of this division (relating to Service Delivery Outside the Individual's Home).

§53.907.Personal Assistance Services Service Interruption.

(a) A service interruption occurs when a HCSSA does not deliver services on a particular day or at a particular time that the services are scheduled to be delivered. The HCSSA must not have service interruptions, unless:

(1) the individual requests that:

(A) the HCSSA provide no hours of service;

(B) the HCSSA provide fewer hours of service than what is reflected in the service schedule; or

(2) the individual is not at home when services are scheduled to be delivered;

(3) services have been suspended as described in §53.715 of this subchapter (relating to Suspensions); or

(4) the HCSSA cannot deliver services for other reasons beyond the control of the HCSSA, such as acts of nature and other disasters.

(b) The HCSSA must document all service interruptions by the 30th day after the beginning of the service interruption.

(1) The reason documented must be a reason listed in subsection (a) of this section.

(2) If the HCSSA learns of a service interruption after the deadline listed in this subsection, the HCSSA must document the following as soon as the HCSSA learns of the service interruption:

(A) the reason for the service interruption;

(B) the reason for the delay in documenting the service interruption; and

§53.909.Service Delivery Outside the Individual's Home.

(a) A HCSSA must make a reasonable effort to deliver services at a location other than the individual's home if requested by the individual. At the individual's request, the service coordination team may develop a POC that includes services regularly delivered at a location other than the individual's home and may deliver services outside the individual's home. The POC must not exceed the monthly authorized hours.

(b) The HCSSA may deliver services outside the individual's home even though the ISP does not include the regular delivery of such services at the individual's request.

(c) The HCSSA is not required to pay for additional expenses incurred by attendants delivering services outside the individual's home.

(d) The HCSSA must document in the individual's file each time an individual requests services at a location other than the individual's home and whether the HCSSA granted or denied the individual's request. Documentation must include either:

(1) the written justification for the denial if the HCSSA denied the request; or

(2) the services the HCSSA provided and where the HCSSA delivered the services if the HCSSA granted the request.

§53.911.Plan of Care Changes for Personal Assistance Services.

(a) A HCSSA must notify the ICM contractor of any change that may require a change in the number of hours allotted in an individual's POC.

(b) The HCSSA must send written notice to the ICM contractor within seven working days after the HCSSA becomes aware of the need for the change. The notice must include:

(1) the date of the HCSSA's awareness of the need for the change;

(2) the reason for the change;

(3) the type and amount of the change, if known;

(4) the anticipated duration of the change, if known; and

(5) the signature and date of the HCSSA staff who reported the need for a POC change.

(1) discuss with the ICM contractor why the individual needs an immediate increase in hours;

(2) negotiate for an immediate increase in hours and the effective date of the increase in hours; and

(3) document the need for an immediate increase in hours by recording:

(A) the date the ICM contractor gave the oral approval for the immediate increase in hours;

(B) the name of the ICM contractor staff giving the oral approval for the immediate increase in hours;

(D) the number of hours authorized.

(d) The HCSSA must implement a POC change:

(1) on the negotiated effective date; or

(2) within seven days after the later of:

(A) the effective date of the POC; or

(e) The HCSSA must document any failure to implement a POC change by the effective date, including:

(1) the reason for the delay;

(2) either the date the HCSSA anticipates it will implement the POC change or the specific reasons why the HCSSA cannot anticipate an implementation date; and

(3) a description of the HCSSA's ongoing efforts to implement the POC change.

(f) DADS considers the HCSSA to be in compliance with this section if the reason for the delay is:

(1) beyond the control of the HCSSA; and

(2) not caused directly by the HCSSA.

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 March 19, 2007.

TRD-200701069

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: April 29, 2007

For further information, please call: (512) 438-4162

DIVISION 14. SKILLED NURSING

40 TAC §§53.921, 53.923, 53.925, 53.927, 53.929

Statutory Authority

The 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 §533.061, which requires the HHSC executive commissioner by rule to develop an integrated care management model of Medicaid managed care.

The new sections affect Texas Government Code, §§531.0055, 531.021, and 533.061; and Texas Human Resources Code, §161.021.

§53.921.Skilled Nursing Services Requirements.

(a) A HCSSA must deliver all authorized skilled nursing services, which must be:

(1) ordered by a practitioner; and

(2) provided in compliance with the Nursing Practice Act according to the rules of the Board of Nurse Examiners for the State of Texas.

(b) The HCSSA's RN is responsible for:

(1) delivering services at the appropriate location in accordance with the POC;

(2) supervising skilled nursing care provided by others for whom the HCSSA's RN is administratively or professionally responsible; and

(3) delegating skilled nursing services or tasks to unlicensed persons according to §97.298 of this title (relating to Delegation of Nursing Tasks by Registered Professional Nurses to Unlicensed Personnel and Tasks Not Requiring Delegation) and with the rules of the Board of Nurse Examiners at 22 TAC Chapter 225.

(c) The HCSSA is responsible for unscheduled or unplanned skilled nursing interventions that occur during business hours.

(1) The HCSSA must notify the ICM contractor by the next working day orally or by fax of the unscheduled or unplanned skilled nursing intervention.

(2) If the HCSSA's first notification is oral, the HCSSA must send written notice to the ICM contractor by the seventh day after the first notification. The written notice must include:

(A) the rationale for the intervention;

(B) the type and amount of additional service needed and the anticipated duration;

(D) the signatures of the individual and the HCSSA's RN.

§53.923.Delegation of Skilled Nursing Tasks.

(a) A HCSSA's RN may delegate and supervise selected skilled nursing tasks in accordance with §97.298 of this title (relating to Delegation of Nursing Tasks by Registered Professional Nurses to Unlicensed Personnel and Tasks Not Requiring Delegation) and with the rules of the Board of Nurse Examiners at 22 TAC Chapter 225, to an attendant.

(b) If an individual lives in an ALF, the HCSSA's RN must not delegate administration of medications to an employee of an ALF.

(c) If an individual lives in an AFC home, the HCSSA's RN must document in the clinical record the rationale for not delegating skilled nursing tasks to an AFC provider.

§53.925.Orientation of Attendants and AFC Providers Performing Delegated Skilled Nursing Tasks.

A HCSSA's RN must:

(1) orient the attendant or the AFC provider performing delegated skilled nursing tasks before the attendant or the AFC provider performs any delegated skilled nursing tasks;

(2) document the orientation of the attendant or AFC provider performing delegated skilled nursing tasks, by recording:

(A) information about the individual's health condition and how it may affect the performance of tasks;

(B) a list of the delegated skilled nursing tasks to be performed; and

(C) any symptoms or changes in the individual's health status, which, if they occur, would require the attendant or the AFC provider to notify the HCSSA's RN or the attending practitioner; and

(3) orient the AFC provider and substitute provider simultaneously.

§53.927.Monitoring Attendants and AFC Providers Performing Delegated Skilled Nursing Tasks.

A HCSSA must record the monitoring visit of an individual who is receiving delegated skilled nursing tasks. The documentation must include:

(1) the delegated skilled nursing tasks; and

(2) the monitoring plans to assess the attendant's or AFC provider's performance in delivering the delegated skilled nursing tasks, which include:

(A) the individual's current health;

(B) changes in the individual's health since the last monitoring;

(D) the quality of the services provided by the attendant or AFC provider.

§53.929.Training of Informal Support Providers.

(a) A HCSSA's RN may provide training in skilled nursing tasks and personal assistance services to informal support providers.

(b) The HCSSA's RN must document in the clinical record:

(1) the individual's request for this arrangement; and

(2) the informal support provider's agreement to perform the needed skilled nursing task or personal assistance service.

(1) the HCSSA's RN demonstrated the task; and

(2) the informal support provider performed a return demonstration satisfactorily.

(d) If the informal support provider's performance in delivering skilled nursing tasks or personal assistance services is unsatisfactory, the HCSSA's RN must arrange for another person to deliver the necessary tasks or services.

(e) A trained informal support provider who provides skilled nursing tasks or personal assistance services must sign and date a statement. The statement must document that the HCSSA's RN has sufficiently trained the informal support provider and the informal support provider is willing to perform the skilled nursing tasks or personal assistance services. The HCSSA's RN must arrange for another person to deliver the necessary tasks or services if the trained informal support provider refuses to sign a statement.

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 March 19, 2007.

TRD-200701070

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: April 29, 2007

For further information, please call: (512) 438-4162

DIVISION 15. THERAPY SERVICES

40 TAC §53.931

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; 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 §533.061, which requires the HHSC executive commissioner by rule to develop an integrated care management model of Medicaid managed care.

The new section affects Texas Government Code, §§531.0055, 531.021, and 533.061; and Texas Human Resources Code, §161.021.

§53.931.Therapy Services Requirements.

(a) A HCSSA must provide a full range of therapy services. A practitioner must order the therapy services and authorize the services in the individual's POC before services are delivered.

(b) A therapist licensed by the appropriate state licensing or examining board must provide therapy services. The HCSSA must maintain a copy of the therapist's current license in the therapist's employment, contract, or personal service agreement file.

(1) physical therapy;

(2) occupational therapy; and

(3) speech, hearing, and language therapy.

(d) Therapy services include:

(1) writing required specifications for an adaptive aid; and

(2) participating in service coordination team meetings, if requested.

(e) Assessment and written evaluations and specifications are approved as a therapy service if services are performed by a licensed speech-language pathologist or a licensed occupational therapist.

(f) The HCSSA must ensure that the individual receives therapy services at a location agreeable to the therapist and the individual.

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 March 19, 2007.

TRD-200701071

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: April 29, 2007

For further information, please call: (512) 438-4162

DIVISION 16. TRANSITION ASSISTANCE SERVICES

40 TAC §53.941

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; 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 §533.061, which requires the HHSC executive commissioner by rule to develop an integrated care management model of Medicaid managed care.

The new section affects Texas Government Code, §§531.0055, 531.021, and 533.061; and Texas Human Resources Code, §161.021.

§53.941.Transition Assistance Services Requirements.

A TAS agency must provide transition assistance services as described in Chapter 62 of this title (relating to Contracting to Provide Transition Assistance Services).

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 March 19, 2007.

TRD-200701072

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: April 29, 2007

For further information, please call: (512) 438-4162

Subchapter H. DOCUMENTATION

40 TAC §§53.1001, 53.1003, 53.1005, 53.1007, 53.1009, 53.1011

Statutory Authority

The 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 §533.061, which requires the HHSC executive commissioner by rule to develop an integrated care management model of Medicaid managed care.

The new sections affect Texas Government Code, §§531.0055, 531.021, and 533.061; and Texas Human Resources Code, §161.021.

§53.1001.Record Keeping.

(a) An LTSS provider and the ICM contractor must maintain applicable records according to:

(1) Chapter 49 of this title (relating to Contracting for Community Care Services);

(2) Chapter 69 of this title (relating to Contract Administration); and

(3) the terms of the contract.

(b) The LTSS provider and the ICM contractor must maintain documentation to support compliance with the applicable requirements of this chapter.

(1) Financial records must include:

(A) deposit slips, bank statements, cancelled checks, and receipts;

(B) purchase orders;

(D) journals and ledgers;

(E) payroll and tax records;

(F) service delivery documentation;

(G) Internal Revenue Service, Department of Labor, and other government records and forms;

(H) records of insurance coverage, claims, and payments (for example, medical, liability, fire and casualty, and workers' compensation);

(I) equipment inventory records;

(J) records of the LTSS provider's internal accounting procedures;

(K) a chart of accounts, as defined by generally accepted accounting principles (GAAP); and

(L) records of the LTSS provider's company policies.

(2) Financial records must be sufficient to support billing to DADS for payment under §53.1101 of this chapter (relating to General Reimbursement Requirements).

(3) Financial records must include documentation of reimbursement made by DADS, including:

(A) the amount of reimbursement;

(B) the voucher number;

(D) the date of receipt; and

(E) any other information necessary to trace deposits of reimbursements and payments made from the reimbursements in the LTSS provider's accounting system.

(4) Financial records must be kept in accordance with GAAP and DADS procedures.

(d) The LTSS provider must maintain invoices, contracts, and service delivery records for all subcontractors. The LTSS provider must maintain all records necessary to support claims.

(e) Failure to maintain records as specified in this section may result in:

(1) corrective action plans;

(2) monetary recoupment; or

(3) other actions DADS deems necessary or appropriate.

§53.1003.Bids for Adaptive Aids, Medical Supplies, and Minor Home Modifications.

(a) A HCSSA must obtain a minimum of three bids for adaptive aids, medical supplies, and minor home modifications.

(b) The HCSSA must document the following:

(1) why the HCSSA selected the winning bid;

(2) the cost of the winning bid;

(3) the time estimated for completion of the modification;

(4) the winning bidder's ability and availability to provide routine maintenance and repair, including the bidder's record of quality service and timely responses to repair requests; and

(5) any warranties provided by the winning bidder.

(c) An individual's preference is not sufficient reason for providing a more expensive modification if a less costly modification meets the individual's need.

(d) The HCSSA must document the names of all suppliers or building contractors from which the HCSSA obtained bids.

(e) There must be documentation to support the lack of three bids. Documentation must verify that the HCSSA:

(1) requested bids from more than three suppliers or building contractors; and

(2) made follow-up calls to find out why the suppliers or building contractors did not return the bids.

(f) The HCSSA must document attempts to locate three suppliers of specific supplies.

§53.1005.Price Lists.

A HCSSA may use price lists for the purchase of medical supplies and adaptive aids as an alternative to obtaining three bids for each purchase. In selecting an annual supplier based on a price list, the HCSSA must:

(1) consult price lists from a minimum of three suppliers;

(2) base the selection upon:

(A) the cost;

(B) the delivery time;

(D) the supplier's access to loaners, repair history, and warranties; and

(3) obtain new price lists and choose the most cost-effective supplier at least annually.

§53.1007.Clinical Records and Supplemental Documentation.

A HCSSA's RN and a therapist must maintain clinical records that:

(1) are in accordance with licensure and professional standards; and

(2) document:

(A) the individual's mental and physical status; and

(B) interventions performed by paid persons providing the individual's care.

§53.1009.Service Delivery Documentation.

(a) An LTSS provider must maintain service delivery documentation that includes:

(1) the individual's name and Medicaid number;

(2) the specific service delivery period, including month, day and year, as applicable;

(3) the LTSS provider's name and vendor number;

(4) the method of delivery, which can be any of the following:

(A) delivered by an employee (include the name of employee);

(B) delivered under a personal service agreement (include the name of the person); or

(i) an adaptive aid;

(ii) a minor home modification; or

(iii) a medical supply;

(5) the authorized service and description (only one service may be documented on each document);

(6) the tasks assigned for personal assistance services;

(7) the dates that services were delivered;

(8) the units of service delivered;

(9) the cost of the medical supply, adaptive aid, or minor home modification; and

(10) the amount of the requisition fee and inspection fee.

(b) Documentation must include certification that the service was delivered. Certification may be shown through:

(1) the use of electronic service delivery documentation systems, with each person delivering services inputting a unique identifier to certify the services delivered; or

(2) the use of paper service delivery documentation systems, with each person delivering services signing the time sheet to certify the services delivered.

(A) The attendant must sign his name or a mark representing his name on the document to certify that it is correct. Initials are not an acceptable substitute for a signature.

(B) An attendant who is unable to sign the time sheet may designate another person to sign the time sheet. The LTSS provider must maintain written documentation of:

(i) the reason the attendant is unable to sign the time sheet; and

(ii) the identity of the person authorized to sign the time sheet on behalf of the attendant.

(C) Paper service delivery documentation must be a single document with a specific service delivery period not exceeding one calendar month.

(c) The LTSS provider must maintain service delivery documentation in the individual's file. The LTSS provider must be able to identify each person delivering services to the individual.

§53.1011.Purchase Completion and Satisfaction Documentation.

(a) A HCSSA must document the following on a single document:

(1) individual's name and Medicaid number;

(2) individual's address;

(3) description of the adaptive aid or minor home modification;

(4) delivery or completion date;

(5) date of the orientation or inspection;

(6) individual's satisfaction or dissatisfaction with the adaptive aid or minor home modification;

(7) date the HCSSA made a home visit to address dissatisfaction with the adaptive aid or the minor home modification, if applicable;

(8) outcome of the home visit to address dissatisfaction with the adaptive aid or minor home modification, if applicable;

(9) signature of the therapist or nurse completing the home visit to address dissatisfaction, if applicable;

(10) signature of the individual who made the home visit to address dissatisfaction, if applicable;

(11) HCSSA's representative's dated signature;

(12) HCSSA's name and vendor number; and

(13) date the documentation was submitted to the ICM contractor.

(b) In addition to the requirements described in subsection (a) of this section, the HCSSA must document the following for each adaptive aid orientation described in §53.755 of this chapter (relating to Adaptive Aid Delivery, Orientation, and Satisfaction):

(1) the method of delivery of the adaptive aid;

(2) the name, title, and qualifications of the person completing the initial training or orientation;

(3) the signature of the person completing the training or orientation, if the person is a HCSSA's employee

(4) the date and outcome of any additional training or orientation provided to the individual, if applicable;

(5) the signature of the therapist or nurse who completed the additional training or orientation; and

(6) whether the adaptive aid meets the individual's needs.

(c) In addition to the requirements described in subsection (a) of this section, the HCSSA must document the following for each minor home modification inspection described in §53.879 of this chapter (relating to Minor Home Modification Inspections):

(1) the name and qualifications of the inspector;

(2) whether the modification was:

(A) completed according to Texas Accessibility Standards; and

(B) completed according to specifications (if required);

(3) the inspector's dated signature; and

(4) any comments by the inspector.

(d) The HCSSA must send a copy of the purchase completion documentation to the ICM contractor only if the individual is still dissatisfied after the home visit. The HCSSA must submit the documentation within seven days after the date the HCSSA conducts a home visit to address the dissatisfaction.

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 March 19, 2007.

TRD-200701073

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: April 29, 2007

For further information, please call: (512) 438-4162

Subchapter I. CLAIMS AND PAYMENTS

40 TAC §§53.1101, 53.1103, 53.1105, 53.1107, 53.1109, 53.1111, 53.1113, 53.1115, 53.1117, 53.1119

Statutory Authority

The 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 §533.061, which requires the HHSC executive commissioner by rule to develop an integrated care management model of Medicaid managed care.

The new sections affect Texas Government Code, §§531.0055, 531.021, and 533.061; and Texas Human Resources Code, §161.021.

§53.1101.General Reimbursement Requirements.

(a) An LTSS provider must bill for services provided as described in §49.41 of this title (relating to Billings and Claims Payment).

(b) The LTSS provider must agree to accept and DADS will pay only the unit rate established by HHSC.

(c) The LTSS provider must maintain the documentation to support billing described in this chapter to be eligible for reimbursement.

(d) The LTSS provider must bill DADS for hourly services in quarter-hour increments, rounding up to the next quarter-hour if the actual time worked is eight minutes or more and rounding down to the previous quarter hour if the actual time worked is less than eight minutes.

§53.1103.Mutually Exclusive Services.

DADS will not reimburse an LTSS provider for:

(1) personal assistance services provided to an individual receiving in-home respite services during the same time period;

(2) providing any of the following services to an individual residing in an ALF:

(A) administration of medications as a skilled nursing service;

(B) personal assistance services;

(D) emergency response services;

(E) respite services; or

(F) minor home modifications; or

(3) providing any of the following services to an individual residing in an AFC home:

(A) personal assistance services;

(B) home-delivered meals;

(D) respite services.

§53.1105.Billable Services, Items, and Activities.

An LTSS provider may bill DADS for services approved in the individual's POC, including:

(1) skilled nursing services, including:

(A) participating on the service coordination team, if needed to address skilled nursing needs;

(B) training and supervising skilled nursing tasks that the HCSSA's RN has delegated;

(i) no attendant is available to perform the delegated skilled nursing tasks;

(ii) the LTSS provider documents its efforts to find an attendant to prevent a service interruption; and

(iii) the LTSS provider bills no more than 10 hours per POC year for this service;

(D) deciding whether to delegate a skilled nursing task to an AFC provider, if:

(i) an RN documents the activities conducted to make the decision to delegate a skilled nursing task to the AFC provider, including observing the AFC provider performing the tasks and interviewing the individual; and

(ii) the LTSS provider bills no more than four hours per POC year for this service; and

(E) training family members, neighbors, and other informal support providers to provide needed skilled nursing or personal care tasks;

(2) therapy services (occupational, physical, and speech-language pathology), including participation on the service coordination team;

(3) personal assistance services, including:

(A) direct individual contact to provide personal care and delegated skilled nursing tasks; and

(B) participation on the service coordination team;

(4) minor home modification services, including:

(A) labor;

(B) materials;

(D) the actual cost of written specification development, not to exceed $200;

(E) the actual cost of an inspection, not to exceed $150; and

(F) the requisition fee;

(5) adaptive aids, including:

(A) the invoice cost of the item;

(B) freight charges;

(D) the development of specifications for assistive technology, environmental controls, and augmentative communication devices, that is not otherwise billed under therapy services or skilled nursing;

(E) the cost of a follow-up or orientation visit by a knowledgeable professional, not to exceed $500, that is not otherwise billed under therapy services or skilled nursing; and

(F) requisition fees;

(6) medical supplies, including the actual cost of the item when purchased through a supplier, whether the medical supplier is a related party or not, for:

(A) freight charges;

(B) sales tax; and

(7) in-home respite services providing relief as identified in the individual's POC.

§53.1107.Non-billable Services, Items, and Activities.

An LTSS provider must not bill for and DADS will not pay for:

(1) supervision of an attendant, unless the attendant is providing delegated tasks;

(2) phone calls, letters, or meetings with the ICM contractor, DADS, or community resources;

(3) administrative meetings or staff meetings;

(4) in-service training, continuing education, or conferences;

(5) employee conferences or evaluations;

(6) costs related to filing claims for services;

(7) traveling to and from the individual's home;

(8) costs related to processing paperwork or completing records or reports;

(9) services that DADS and the ICM contractor have not authorized;

(10) a contact that is between an LTSS provider employee and a person providing service to an individual under a personal service agreement or a subcontract with the LTSS provider;

(11) services that are considered mutually exclusive, as identified in §53.1103 of this subchapter (relating to Mutually Exclusive Services);

(12) a home visit made by a supplier in performing orientation or adjusting an adaptive aid;

(13) delivery of a medical supply or an adaptive aid to an individual;

(14) gloves that are used by LTSS provider staff;

(15) personal items of daily living activities, except as allowed in transition assistance services as described in §53.941 of this chapter (relating to Transition Assistance Services Requirements), including:

(A) hygiene products (for example, soap, toothbrush, toothpaste, deodorant, powder, feminine products, first-aid supplies, and shampoo);

(B) clothing items (for example, gowns and hospital gowns);

(D) nutritional drinks (does not include nutritional supplements such as Ensure or Glucerna);

(E) food;

(F) bottled water;

(G) room and board; and

(H) non-adapted home furnishings, except as allowed under transition assistance services as described in §53.941 of this chapter;

(16) recreational items, equipment, and supplies, including:

(A) bicycles and tricycles (two, three, or four wheels);

(B) helmets;

(D) swing sets;

(E) jogging pull or push carts;

(F) car seats;

(G) bowling and fishing gear;

(H) karaoke machines;

(I) entertainment systems; and

(J) off-road recreational vehicles;

(17) non-adapted exercise equipment;

(18) membership in gyms, spas, health club, or other exercise facilities;

(19) communication items, including:

(A) telephones (standard, cordless, or cellular);

(B) pagers;

(D) monthly services;

(20) computers for:

(A) educational purposes;

(B) self-employment or employment purposes, except as allowed under CDS as described in Chapter 41 of this title (relating to Consumer Directed Services Option);

(D) Internet and e-mail access; and

(E) games and fun or craft activities;

(21) office equipment and supplies, including:

(A) fax machines, except as allowed under CDS as described in Chapter 41 of this title;

(B) printers and copiers;

(D) Internet and e-mail services;

(22) past due expenses for income taxes and property taxes;

(23) insurance coverage and benefits payments, including:

(A) life insurance;

(B) accidental insurance;

(D) burial policies;

(E) funeral expenses; and

(F) home insurance coverage or deductibles;

(24) items related to an individual's residential environment that the ICM waiver does not cover, including:

(A) home security systems, including monthly services;

(B) utilities;

(C) electrical upgrades or electrical outlets, unless needed to power adapted equipment so that a safety hazard does not exist;

(D) elevators;

(E) air duct cleaning and maintenance;

(F) central air and heating systems or multiple individual air conditioners;

(G) water filtration systems;

(H) carbon monoxide detectors;

(I) roof repair or replacement;

(J) carpeting;

(K) new carports, porches, patios, garages, porticos, or decks;

(L) electric fences; and

(M) landscaping or yard work, landscaping supplies, and pest exterminations;

(25) medical treatment or hospitalization;

(26) experimental medical treatments and therapies, including:

(A) hyperbaric oxygen therapy (medical-related therapy);

(B) serotin therapy (medical-related therapy); and

(27) educational items or services, including:

(A) school tuition and activity fees;

(B) a computer for a school-age individual for educational purposes;

(D) private or home school expenses or services;

(28) swimming pools, hot tubs, and spas or any expenses related to these items, including:

(A) repairs or maintenance;

(B) swimming pool surrounds or decks;

(D) heating elements;

(29) rental of vehicles, housing and meal expenses related to the purchase, service, or repair and maintenance of adaptive aids that are not paid for or provided by the ICM Program; and

(30) drugs and medications covered by Medicare Part D or the Medicaid Vendor Drug Program.

§53.1109.Co-payment.

An LTSS provider must subtract any applicable co-payment from billing submitted to DADS.

§53.1111.Reimbursement for Specifications.

(a) A HCSSA may submit a claim for an hour of skilled nursing when the HCSSA's RN writes specifications for an adaptive aid.

(b) The HCSSA may submit a claim for an hour of therapy when a therapist writes specifications for an adaptive aid.

(1) obtain the ICM contractor's approval for obtaining specifications;

(2) document the experience of the person writing the specifications and maintain this documentation;

(3) obtain and maintain an invoice from the person writing the specifications; and

(4) submit a claim for no more than the amount authorized by the ICM contractor.

(d) The HCSSA is entitled to reimbursement for approved specifications even if:

(1) the actual cost of the adaptive aid is less than $500 or the minor home modification costs less than $1,000; or

(2) the HCSSA did not deliver the adaptive aid or complete the minor home modification.

§53.1113.Reimbursement for Inspections.

(a) A HCSSA may submit a claim for the actual amount of the inspection fee as part of the invoice cost of the minor home modification, not to exceed $150.

(b) The HCSSA must:

(1) obtain the ICM contractor's approval for obtaining an inspection;

(2) document the experience of the person completing the inspection and maintain this documentation;

(3) obtain and maintain an invoice from the person completing the inspection; and

(4) submit a claim for no more than the amount authorized by the ICM contractor.

(c) The fees for inspecting a minor home modification, not to exceed $150, are reimbursable as part of the modification. The ICM contractor must approve the inspection fees before submitting a claim for the inspection.

§53.1115.Reimbursement for Room and Board Expenses.

DADS does not reimburse an LTSS provider for room and board, except as part of the reimbursement rate paid to an out-of-home respite provider.

§53.1117.Reimbursement for Respite Services.

(a) A full unit of respite services is one day.

(1) In-home respite services are billed in hourly increments. Partial units of respite are calculated according to the chart in the Community Based Alternatives Provider Manual , Section 4581.

(2) Out-of-home respite services are billed on a daily basis, except when the individual receives personal assistance services on the same day the individual begins to receive out-of-home services. In this case, the HCSSA bills for the actual personal assistance services delivered and the out-of-home respite provider bills for the actual time spent in the out-of-home facility that day.

(b) An out-of-home respite provider must not charge an individual for room and board.

(c) An out-of-home respite provider is not paid for bedhold or personal leave days. Billable time for the out-of-home respite provider will be based solely on time spent by the individual in the out-of-home respite facility.

§53.1119.Monitoring Medicaid Eligibility.

(a) An LTSS provider must verify each month that an individual remains Medicaid eligible. The LTSS provider may verify the individual's current Medicaid eligibility by:

(1) viewing the individual's Medicaid Identification form; or

(2) using the current systems available to verify the individual's registration.

(b) The LTSS provider is not entitled to payment from DADS for services delivered when the individual is not Medicaid eligible.

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 March 19, 2007.

TRD-200701074

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: April 29, 2007

For further information, please call: (512) 438-4162

Subchapter J. LTSS PROVIDER MONITORING

40 TAC §§53.1201, 53.1203, 53.1205, 53.1207, 53.1209, 53.1211

Statutory Authority

The 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 §533.061, which requires the HHSC executive commissioner by rule to develop an integrated care management model of Medicaid managed care.

The new sections affect Texas Government Code, §§531.0055, 531.021, and 533.061; and Texas Human Resources Code, §161.021.

§53.1201.Monitoring Reviews.

DADS conducts monitoring reviews as described in Chapter 49, Subchapter E of this title (relating to Audits, Monitoring, and Reviews) and in this subchapter.

§53.1203.Compliance Monitoring.

Compliance monitoring is a review to determine if an LTSS provider is delivering services according to the rules in this chapter. During compliance monitoring, DADS:

(1) reviews consumer satisfaction surveys;

(2) reviews the individual's record;

(3) interviews the individual and LTSS provider staff;

(4) observes the individual and LTSS provider staff; and

(5) consults with others, as appropriate.

§53.1205.Fiscal Monitoring.

(a) Fiscal monitoring is a review of the documentation that supports the LTSS provider's billing. If DADS finds financial errors during fiscal monitoring, DADS may make monetary recoupment.

(b) Specific requirements for fiscal monitoring for ALFs are described in §46.23 of this title (relating to Monitoring Reviews).

(c) Specific requirements for fiscal monitoring for HCSSAs are described in §53.1207 of this subchapter (relating to HCSSA Financial Errors) and §53.1209 of this subchapter (relating to HCSSA Administrative Errors)

§53.1207.HCSSA Financial Errors.

(a) DADS cites financial errors when a HCSSA does not have documentation to support reimbursement from DADS for services billed.

(b) DADS recoups the entire amount reimbursed, including the requisition fee for medical supplies, adaptive aids, or minor home modifications, if DADS reimbursed the HCSSA and the HCSSA:

(1) provided services not identified on the POC and attachments, unless:

(A) the HCSSA provided the service because of an emergency and the back-up documentation supports the emergency; and

(B) the HCSSA supplied the documentation to the ICM contractor within seven working days after the date the HCSSA determined the emergency existed;

(2) provided a service, other than a pre-enrollment home health assessment, before the eligibility effective date of the POC;

(3) included non-billable time and activities in the time or amount billed;

(4) has no invoice or receipt for the purchase of an adaptive aid or a medical supply, or the completion of a minor home modification; or

(5) has no service delivery documentation.

(c) DADS recoups a portion of the amount reimbursed and the corresponding dollar amount of the requisition fee for medical supplies, adaptive aids, or minor home modifications, if DADS reimbursed the HCSSA and the HCSSA:

(1) provided skilled nursing, physical therapy, occupational therapy, or speech-language pathology services without a valid practitioner's order, in which case DADS recoups the total number of units not covered by a valid order;

(2) provided more than four hours of skilled nursing to decide whether to delegate skilled nursing tasks to an AFC provider, in which case DADS recoups the total number of units in excess of four hours;

(3) provided more than 10 hours during the POC year for skilled nursing services performed by a nurse to prevent service interruptions caused by the attendant not being available to provide delegated skilled nursing tasks, in which case DADS recoups the total number of units in excess of 10 hours;

(4) did not record the time services were delivered, in which case DADS recoups the total number of units where the time is not recorded;

(5) billed an amount in excess of the amount documented on the invoice or receipt for adaptive aids, medical supplies, or minor home modifications, in which case DADS recoups the total number of dollars in excess of the amount on the invoice or receipt, plus the requisition fee;

(6) provided more personal assistance services, skilled nursing, or therapy services hours than are authorized on the POC, unless the HCSSA provided the service because of an emergency and the back-up documentation supports the emergency, in which case DADS recoups the total number of units in excess of the authorized hours; or

(7) provided more personal assistance services, skilled nursing, or therapy services hours than are recorded on the service delivery documentation, in which case:

(A) DADS recoups the total number of units in excess of the units recorded on the service delivery documentation; and

(B) if the sum of the daily totals of hours does not equal what is written in the monthly total blank, the lesser of the two totals is used to calculate the total number of hours subject to the error.

§53.1209.HCSSA Administrative Errors.

(a) DADS cites administrative errors when there are discrepancies in a HCSSA's service delivery documentation.

(b) DADS cites the following administrative errors if DADS reimbursed the HCSSA and the HCSSA:

(1) did not complete the service delivery documentation, but there is a receipt for the purchase of an adaptive aid, a medical supply, or a completed minor home modification;

(2) did not request bids as required for the purchase of an adaptive aid or the completion of a minor home modification;

(3) purchased a medical supply, but the HCSSA:

(A) did not obtain price lists or request bids from three suppliers; or

(B) chose an annual supplier more than 12 months before the purchase date;

(4) purchased an adaptive aid, but the HCSSA:

(A) did not obtain price lists or request bids from three suppliers; or

(B) chose an annual supplier more than 12 months before the purchase date.

§53.1211.Sanctions.

(a) DADS may sanction an LTSS provider, up to and including contract termination, if:

(1) the LTSS provider suspends services to an individual for a reason other than a reason allowed in §53.715 of this chapter (relating to Suspensions);

(2) the LTSS provider uses §53.715(a)(5) of this chapter as a reason to discontinue services to an individual, if the LTSS provider knew or should have known that the individual's reckless behavior would not result in imminent danger to the health and safety of the LTSS provider; or

(3) either the ICM contractor or the LTSS provider terminates the LTSS provider's contract with the ICM contractor.

(b) Additional reasons for LTSS provider sanctions are listed in §49.61 of this title (relating to Sanctions).

(c) If DADS imposes a sanction in accordance with subsection (a)(3) of this section, the sanction does not affect a contract for services provided in an area other than the designated service area, and the LTSS provider requests a hearing to challenge the sanction, the underlying reason for the termination of the LTSS provider's contract with the ICM contractor may not be raised as an issue at the hearing.

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 March 19, 2007.

TRD-200701075

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: April 29, 2007

For further information, please call: (512) 438-4162

Chapter 79. LEGAL SERVICES

The Health and Human Services Commission (HHSC) proposes, on behalf of the Department of Aging and Disability Services (DADS), the repeal of Subchapter B, consisting of §§79.101 - 79.105, concerning rules of practice before the State Board of Human Services; Subchapter C, consisting of §§79.201 - 79.210, concerning procedure for public hearings on proposed substantive rules; and Subchapter D, consisting of §§79.301 - 79.305, concerning rulemaking procedures, in Chapter 79, Legal Services.

Background and Purpose

The purpose of the repeal is to comply with Acts 2003, 78th Legislature, Regular Session, Chapter 198 (House Bill 2292), §1.18 and §1.26, which abolished the Texas Department of Human Services and the Board of Human Services, effective September 1, 2004; and with Texas Government Code, §531.0055, which vests rulemaking authority for all health and human services agencies, including DADS, with the HHSC executive commissioner.

Section-by-Section Summary

The repeal of §§79.101 - 79.105 will eliminate obsolete rules governing the rules of practice before the Board of Human Services, because that board no longer exists. The repeal of §§79.201 - 79.210 and §§79.301 - 79.305 will eliminate obsolete rules governing rulemaking procedures, because rulemaking authority has been transferred to the HHSC executive commissioner.

Fiscal Note

Small Business and Micro-business Impact Analysis

DADS has determined that the proposed repeal will have no adverse economic effect on small businesses or micro-businesses, because the rules being repealed apply only to a former state agency and do not affect businesses.

Public Benefit and Costs

Lawrence Parker, DADS Chief Operating Officer, has determined that, for each year of the first five years after the repeal, the public benefit expected as a result of repealing the sections is that obsolete rules concerning the former Board of Human Services will no longer appear in DADS' rule base.

Mr. Parker anticipates that there will not be an economic cost to persons who are affected by the repeal. The repeal will not affect a local economy.

Takings Impact Assessment

Public Comment

Questions about the content of this proposal may be directed to Nancy Porter at (512) 438-4820 in DADS' Legal Services. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-003, Department of Aging and Disability Services W-615, P.O. Box 149030, Austin, TX 78714-9030 or street address 701 West 51st St., Austin, TX 78751; faxed to (512) 438-5759; or e-mailed to rulescomments@dads.state.tx.us. To be considered, comments must be submitted no later than 30 days after the date of this issue of the Texas Register. The last day to submit comments falls on a Sunday; therefore, comments must be either (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered to DADS before 5:00 p.m. on DADS' last working day of the comment period; or (3) faxed or e-mailed by midnight on the last day of the comment period. When faxing or e-mailing comments, please indicate "Comments on Proposed Rule 003" in the subject line.

Subchapter B. RULES OF PRACTICE BEFORE THE STATE BOARD OF HUMAN SERVICES

40 TAC §§79.101 - 79.105

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.

§79.101.Definitions.

§79.102.Notice of Agenda.

§79.103.Requests for Information.

§79.104.Submittal of Agenda Items.

§79.105.Appearance Before Board.

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 March 13, 2007.

TRD-200700983

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: April 29, 2007

For further information, please call: (512) 438-4162

Subchapter C. PROCEDURE FOR PUBLIC HEARINGS ON PROPOSED SUBSTANTIVE RULES

40 TAC §§79.201 - 79.210

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.

§79.201.Request for Public Hearing.

§79.202.Arrangements for Hearing.

§79.203.Conduct of Hearing.

§79.204.Request for Appearance.

§79.205.Opening Hearing.

§79.206.Speakers' Time Periods.

§79.207.Subject Restriction.

§79.208.Time Limit for Hearing.

§79.209.Record and Report to Board.

§79.210.Response to Public Comments.

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 March 13, 2007.

TRD-200700984

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: April 29, 2007

For further information, please call: (512) 438-4162

Subchapter D. RULEMAKING PROCEDURES

40 TAC §§79.301 - 79.305

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.

§79.301.Petition for Proposed Rulemaking.

§79.302.Advance Notice.

§79.303.Public Comment on Proposed Rules.

§79.304.Copies of Proposed Rules.

§79.305.Copies of Hearing Tapes.

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 March 13, 2007.

TRD-200700985

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: April 29, 2007

For further information, please call: (512) 438-4162

Chapter 100. MISCELLANEOUS

The Health and Human Services Commission (HHSC) proposes, on behalf of the Department of Aging and Disability Services (DADS), the repeal of §100.5, concerning the Texas Board on Aging; §100.7, concerning advisory councils; §100.24, concerning agency training plan; §100.35, concerning the historically underutilized business program; and §§100.301 - 100.308, concerning rulemaking procedures of the former Texas Department of Mental Health and Mental Retardation (TDMHMR), in Chapter 100, Miscellaneous.

Background and Purpose

The purpose of the repeal is to comply with Acts 2003, 78th Legislature, Regular Session, Chapter 198 (House Bill 2292), §1.18 and §1.26, which abolished TDMHMR, the Texas Department on Aging, the TDMHMR Board, and the Texas Board on Aging. Rules governing the former agencies' activities were transferred to DADS on September 1, 2004. Certain rules involving former agency board and rulemaking procedures are now obsolete and in need of repeal. Other rules are duplicative and, therefore, are no longer necessary.

Section-by-Section Summary

The repeal of §100.5 and §100.7 is proposed to delete obsolete rules from DADS' rule base, because the Texas Board on Aging and its advisory councils no longer exist.

The repeal of §100.24 and §100.35 is proposed to delete duplicative rules governing employee training and historically underutilized businesses. The remaining sections governing employee training, which are required by Texas Government Code, §656.048, are found in 40 TAC Chapter 77. The remaining section governing historically underutilized businesses is found at 40 TAC §69.15.

The repeal of §§100.301 - 100.308 will eliminate obsolete rules governing TDMHMR rulemaking procedures, because the HHSC executive commissioner has sole rulemaking authority for DADS.

Fiscal Note

Small Business and Micro-business Impact Analysis

DADS has determined that the proposed repeal will have no adverse economic effect on small businesses or micro-businesses, because the rules being repealed apply only to former state agencies and do not affect businesses.

Public Benefit and Costs

Lawrence Parker, DADS Chief Operating Officer, has determined that, for each year of the first five years after the repeal, the public benefit expected as a result of repealing the sections is that certain obsolete and duplicative rules will no longer appear in DADS' rule base.

Mr. Parker anticipates that there will not be an economic cost to persons who are affected by the repeal. The repeal will not affect a local economy.

Takings Impact Assessment

Public Comment

Subchapter A. OPERATION OF THE TEXAS DEPARTMENT ON AGING

40 TAC §§100.5, 100.7, 100.24, 100.35

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.

§100.5.The Texas Board on Aging.

§100.7.Advisory Councils.

§100.24.Agency Training Plan.

§100.35.Historically Underutilized Business Program.

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 March 13, 2007.

TRD-200700986

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: April 29, 2007

For further information, please call: (512) 438-4162

Subchapter G. TDMHMR RULEMAKING

40 TAC §§100.301 - 100.308

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.

§100.301.Purpose.

§100.302.Definitions.

§100.303.Coordination of the Rulemaking Process.

§100.304.Petitions for Rules or Changes to Rules.

§100.305.Public Comment on Rules.

§100.306.Emergency Rulemaking.

§100.307.Distribution.

§100.308.References.

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 March 13, 2007.

TRD-200700987

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: April 29, 2007

For further information, please call: (512) 438-4162