Adopted Rules Title 40

TITLE 40. SOCIAL SERVICES AND ASSISTANCE

PART 2. DEPARTMENT OF ASSISTIVE AND REHABILITATIVE SERVICES

CHAPTER 108. DIVISION FOR EARLY CHILDHOOD INTERVENTION SERVICES

The Texas Health and Human Services Commission (commission), on behalf of the Texas Department of Assistive and Rehabilitative Services (department), adopts the repeal of the DARS rules in Title 40, Part 2, Chapter 108, Division for Early Childhood Intervention Services, Subchapters A, B, D, E, and F, and adopts new Subchapters A, B, C, D, E, F, and G.

Specifically, the commission adopts the repeal of Subchapter A, §§108.21, 108.23, 108.25, 108.27, 108.29, 108.31, 108.33, 108.35, 108.37, 108.39, 108.43, 108.47, and 108.48, concerning Early Childhood Intervention Service Delivery; Subchapter B, §§108.55, 108.57, 108.59, and 108.61, concerning Procedural Safeguards and Due Process Procedures; Subchapter D, §§108.221, 108.223, 108.225, 108.227, 108.229, 108.231, 108.233 and 108.235, concerning General Provisions for Case Management Services for Infants and Toddlers with Developmental Disabilities; Subchapter E, §§108.261, 108.263, and 108.265, concerning Developmental Rehabilitation Services; and Subchapter F, §§108.291, 108.293 and 108.295, concerning System of Fees, without changes as published in the March 20, 2009, issue of the Texas Register (34 TexReg 1947) and will not be republished.

The commission adopts new Subchapter A, Early Childhood Intervention Service Delivery, §§108.1, 108.3, 108.5, 108.7, 108.9, 108.11, 108.13, 108.15, 108.17, 108.19, 108.71, 108.73, 108.75, and 108.77; Subchapter B, Procedural Safeguards And Due Process Procedures, §§108.101, 108.103, 108.105, 108.107, 108.109, 108.111, 108.113, 108.115, 108.117, 108.119, 108.121, 108.123, 108.125, 108.127, 108.129, 108.131, 108.133, 108.135, 108.137, and 108.139; Subchapter C, Early Childhood Intervention Staff Qualifications, §§108.301, 108.303, 108.305, 108.307, 108.309, 108.311, 108.313, 108.315, 108.317, 108.319, and 108.321; Subchapter D, General Provisions for Case Management Services for Infants and Toddlers with Developmental Disabilities, §§108.401, 108.403, 108.405, 108.407, 108.409, 108.411, 108.413, and 108.415; Subchapter E, Developmental Rehabilitation Services, §§108.501, 108.503, and 108.505; Subchapter F, System of Fees, §108.601 and §108.603; and Subchapter G, Contract Requirements, §§108.701, 108.703, 108.705, 108.707, 108.709 and 108.711.

New §§108.7, 108.11, 108.13, 108.15, 108.17, 108.19, 108.73, 108.77, 108.109, 108.403, 108.501, 108.503, 108.505, and 108.603 are adopted with changes to the proposed text as published in the March 20, 2009, issue of the Texas Register (34 TexReg 1947). The adopted text of the preceding rules is republished in this issue.

New §§108.1, 108.3, 108.5, 108.9, 108.71, 108.75, 108.101, 108.103, 108.105, 108.107, 108.111, 108.113, 108.115, 108.117, 108.119, 108.121, 108.123, 108.125, 108.127, 108.129, 108.131, 108.133, 108.135, 108.137, 108.139, 108.301, 108.303, 108.305, 108.307, 108.309, 108.311, 108.313, 108.315, 108.317, 108.319, 108.321, 108.401, 108.405, 108.407, 108.409, 108.411, 108.413, 108.415, 108.503, 108.601, 108.701, 108.703, 108.705, 108.707, 108.709 and 108.711 are adopted without changes to the proposed text as published in the March 20, 2009, issue of the Texas Register (34 TexReg 1947) and will not be republished.

Background and Purpose

The repeals and new rules are being adopted to increase clarity and minimize duplication of, or conflicts with, federal statutes and rules. Chapter 108 is extensively restructured and expanded from five subchapters to seven subchapters.

These rules are authorized by the Texas Human Resources Code, Chapters 73 and 117; and The Individuals with Disabilities Education Act, as amended, 20 U.S.C. §1400 et seq. and its implementing regulations, 34 C.F.R. Part 303, as amended.

Section-By-Section Summary

Chapter 108 is extensively restructured and expanded from five subchapters to seven subchapters in order to increase clarity and minimize duplication of or conflicts with federal statutes and rules.

The following subchapters and sections in Title 40, Chapter 108, are repealed: Subchapter A, Early Childhood Intervention Service Delivery, and the following sections are repealed: §108.21, Purpose; §108.23, Definitions; §108.25, Service Delivery Requirements for Comprehensive Services; §108.27, Program Administration for Comprehensive Services; §108.29, Application and Program Requirements for Comprehensive Services; §108.31, Financial Management and Recordkeeping Requirements; §108.33, Funding Application Submission and Review; §108.35, Contract Award; §108.37, Contract; §108.39, Contract Actions; §108.43, Waiver of Program Standards for All ECI Providers Funded by the Department of Assistive and Rehabilitative Services, Division for Early Childhood Intervention Services; §108.47, Early Intervention Specialist Code of Ethics; and §108.48, Violations of the EIS Code of Ethics. The subject matter of these rules is moved to several of the new subchapters with changes intended to minimize duplication of or conflicts with federal statutes and rules. The subject matter of §108.21 and §108.23 is in new Subchapter A. Section 108.25 was an extremely long rule, and it has been broken up into separate sections placed in appropriate new subchapters. The subject matter of §§108.27, 108.29, 108.31, 108.33, 108.35, 108.37, and 108.39 has been moved to new Subchapter G. Section 108.43 is not replaced in any form. The subject matter of §108.47and §108.48 has been moved to new Subchapter C.

Subchapter B, Procedural Safeguards and Due Process Procedures, and the following sections are repealed: §108.55, Procedural Safeguards for Comprehensive Services; §108.57, Early Childhood Intervention Procedures for Resolving Complaints; §108.59, Confidentiality; and §108.61, Primary Referral Requirements. The subject matter of these rules may be found in new Subchapter B along with portions of other repealed rules pertaining to the same matters. The subject matter of §108.55 and §108.57 has been modified to minimize duplication of or conflicts with federal statutes and rules. The subject matter of §108.59 is broken into several new rules.

Subchapter D, General Provisions for Case Management Services for Infants and Toddlers with Developmental Disabilities, and the following sections are repealed: §108.221, Introduction; §108.223, Definitions; §108.225, Reimbursable Services; §108.227, Recipient Eligibility for Early Childhood Intervention (ECI) Case Management Services; §108.229, Conditions for Case Management Provider Participation; §108.231, Qualified Personnel; §108.233, Retention of Records; and §108.235, Provider Records. New Subchapter D is merely a renumbering of these sections, with minor changes to be consistent with the Medicaid State Plan.

Subchapter E, Developmental Rehabilitation Services, and the following sections are repealed: §108.261, Reimbursable Services; §108.263, Recipient Eligibility for Services Funded by the Developmental Rehabilitation Services Program; and §108.265, Conditions for Provider Participation in the Developmental Rehabilitation Services Program. New Subchapter E is a renumbering of these sections with an added definition of natural environment.

Subchapter F, System of Fees, and the following sections are repealed: §108.291, Purpose; §108.293, Definitions; and §108.295, Administration of Family Cost Share System. New Subchapter G is a renumbering of these sections with deletion of temporary information from the rules and with definitions being moved to new Subchapter A.

The following are the new subchapters of Chapter 108:

New Subchapter A, Early Childhood Intervention Service Delivery, consists of the following new rules: §108.1, Purpose; §108.3, Definitions; §108.5, Service Delivery Requirements for Early Intervention Services; §108.7, Client Eligibility; §108.9, Primary Referral Requirements; §108.11, Referral and Pre-Enrollment; §108.13, Assessment and Evaluation; §108.15, Health Standards for Early Intervention Services; §108.17, Individualized Family Service Plan (IFSP); §108.19, Required Early Intervention Services; §108.71, Service Coordination; §108.73, Transition; §108.75, Public Outreach; and §108.77, Safety Regulations.

New Subchapter B, Procedural Safeguards and Due Process Procedures, consists of the following new rules: §108.101, Purpose; §108.103, Responsibilities; §108.105, Prior Notice; §108.107, Parental Consent; §108.109, Surrogate Parents; §108.111, Early Childhood Intervention Procedures for Filing Complaints; §108.113, Early Childhood Intervention Procedures for Investigation and Resolution of Complaints; §108.115, Confidentiality Notice to Parents; §108.117, Access Rights; §108.119, Fees for Records; §108.121, Amendment of Records at Parent's Request; §108.123, Opportunity for a Hearing; §108.125, Minimum Requirements for Conducting a Hearing; §108.127, Results of Hearing; §108.129, Release of Personally Identifiable Information; §108.131, Safeguards; §108.133, Record Retention Period; §108.135, Destruction of Information; §108.137, Release of Records; and §108.139, Enforcement.

New Subchapter C, Early Childhood Intervention Staff Qualifications, consists of the following new rules: §108.301, Staff Health Regulations; §108.303, Professional Requirements; §108.305, Criminal Background; §108.307, Early Intervention Specialist (EIS) Professional; §108.309, Supervision of Entry Level EIS Professionals; §108.311, Fully Qualified EIS Professional Requirements; §108.313, Continuing Professional Education Requirements; §108.315, Registry; §108.317, Grievance Process; §108.319, Early Intervention Specialist Code of Ethics; and §108.321, Violations of the EIS Code of Ethics.

New Subchapter D, General Provisions for Case Management Services for Infants And Toddlers with Developmental Disabilities, consists of the following new rules: §108.401, Introduction; §108.403, Definitions; §108.405, Reimbursable Services; §108.407, Recipient Eligibility for Early Childhood Intervention (ECI) Case Management Services; §108.409, Conditions for Case Management Provider Participation; §108.411, Qualified Personnel; §108.413, Retention of Records; and §108.415, Provider Records.

New Subchapter E, Developmental Rehabilitation Services, consists of the following new rules: §108.501, Reimbursable Services; §108.503, Recipient Eligibility for Services Funded by the Developmental Rehabilitation Services Program; and §108.505, Conditions for Provider Participation in the Developmental Rehabilitation Services Program.

Change: Concerning §108.503(3), corrected the title of 40 TAC §108.5 to "Service Delivery Requirements for Early Intervention Services".

New Subchapter F, System of Fees, consists of the following new rules: §108.601, Purpose, and §108.603, Administration of Family Cost Share System.

New Subchapter G, Contract Requirements, consists of the following new rules: §108.701, Application and Program Requirements for Comprehensive Services; §108.703, Contract Award; §108.705, Contract; §108.707, Remedial Contract Actions; §108.709, Financial Management and Recordkeeping Requirements; and §108.711, Data Collection and Reporting. Chapter 108, Subchapter G, Contract Requirements, collects portions of several repealed rules that deal with providers, their contracts, and their financial requirements.

Comments

The department, on behalf of the commission, has reviewed and prepared responses to the comments received regarding the proposed rules during the comment period. The commission has reviewed and accepts the responses. The commenters were individuals, associations, and/or groups, including the following: Texas Education Association, Texas Association for Marriage and Family Therapy, ECI Region 1 Consortium, Betty Hardwick MHMR, West Texas Centers for MHMR, and North Texas Rehab Center. No commenter was against the rules in their entirety; however, the commenters recommended changes as discussed in the summary of comments.

Comment: Concerning §108.7(b)(1) - (3), one commenter suggested the list of criteria for eligibility be ordered the same in rule as it is in the ECI Standards Manual for Contracted Programs.

Response: The commission disagrees. The eligibility criteria are of equal importance. The order in which the criteria are listed in the rule or the standards manual is not meant to imply more or less importance.

Comment: Concerning §108.7(c), one commenter questioned a discrepancy between a list of populations served in the proposed rules and a longer list in the proposed ECI Standards Manual for Contracted Programs.

Response: The list of populations served in §108.7(c) is intended to be broad examples and not an exclusive list. The list in the ECI Standards Manual for Contracted Programs provides additional detail.

Comment: Concerning §108.7(c), one commenter suggested that the phrase "as visually or auditorially impaired children" be replaced with "who have visual or auditory impairments" or "due to visual or auditory impairments."

Response: The commission agrees and has replaced "as visually or auditorially impaired children" with "who have visual or auditory impairments."

Comment: Concerning §108.11, one commenter suggested that the phrase "procedures for receiving and sending referrals using all primary referral sources" be changed to clarify the intent.

Response: The commission agrees and has replaced "procedures for receiving and sending referrals using all primary referral sources" with "procedures for receiving and making referrals for all primary referral sources."

Comment: Concerning §108.13(a)(4)(D), one commenter identified a run-on sentence and questioned the intent of the rule.

Response: The commission has corrected the run-on sentence by adding a ";" after "team" and has clarified the remaining assessment and evaluation information by transferring it into an expanded §108.17, specifically new §108.17(4) - (5).

Comment: Concerning §108.13(a)(4)(F), one commenter stated that the words "appropriate" and "multiple methods" are ambiguous.

Response: The rule is adopted as proposed, and further clarification will be provided in the DARS ECI Standards Manual for Contracted Programs.

Comment: Concerning §108.15(a), one commenter stated the rule was difficult to understand.

Response: The commission agrees. The rule subsection is edited to read, "If the information in the child's records does not include documentation of a physical examination in accordance with the periodicity schedule of the American Academy of Pediatrics, then the Individualized Family Service Plan (IFSP) team will determine if it needs any additional medical information to implement any or all of the strategies in the child's IFSP."

Comment: Concerning §108.17(1)(B), one commenter inquired if the phrase "services must be jointly coordinated" is clarified in State policy. If not, the commenter requested that the intent and expectations be clarified in rule.

Response: Further clarification will be provided in the ECI Standards Manual for Contracted Programs.

Comment: Concerning §108.17(2)(D), one commenter recommended the phrase "or who has been responsible for implementing the IFSP" be changed to "or who will be implementing the IFSP."

Response: The commission partially agrees. The phrase "or who has been responsible for implementing the IFSP" mirrors the federal requirement. For clarification, §108.17(2) is edited to "develop the initial and annual IFSPs" and §108.17(2)(D) is broken down into two clauses, §108.17(d)(D)(i) - (ii).

Comment: Concerning §108.19(e)(3), several commenters discussed the requirement that a contractor demonstrate the capacity to provide services for a minimum of 52 weeks of each year.

Response: The commission partially agrees and edits §108.19(e)(3) to "demonstrate the capacity to provide services 52 weeks each year." Business hours and holidays will be further defined in the ECI Standards Manual for Contracted Programs.

Comment: Concerning §108.77(b)(1), one commenter made general comments that the rule should not focus on the safety of the buildings but rather the focus should be on the safety of the providers going into the families' homes.

Response: The commission disagrees as other state and federal statutes and regulations already address employee safety and working conditions. However, some edits are being made to §108.77 made for clarity. Section 108.77(a) is edited to, "Contractors must have written policies and procedures which are implemented and evaluated to address safety regulations regarding emergencies for all buildings where ECI programs are housed (including offices)." Section 108.77(b)(1) is edited to, "Buildings must be physically accessible to persons with disabilities". The first sentence in §108.77(b)(2) is edited to, "Buildings must be inspected annually by a local or state fire authority." The first sentence in §108.77(b)(4) is edited to, "Buildings must be equipped with an external emergency release mechanism for opening interior doors that can be locked from the inside."

Comment: Concerning §108.501(b) and §108.505(b)(4), the commission received several comments on Chapter 13, Early Childhood Intervention Providers, of the proposed ECI Standards Manual for Contracted Programs, that discussed adding licensed marriage and family therapists, licensed marriage and family therapist associates, and/or licensed professional counselor interns to the lists of providers who can provide and supervise Developmental Rehabilitation Services.

Response: The commission partially agrees. The specific lists of providers who can provide and supervise Developmental Rehabilitation Services are in the Texas Medicaid State Plan. The commission will consider adding providers to the lists when the Texas Medicaid State Plan is revised. Sections 108.501(b) and 108.505(b)(4) are edited so the addition will be automatic if the relevant portion of the Texas Medicaid State Plan is amended.

The department staff on behalf of the commission provided comments, and the commission has reviewed and agrees to the following changes.

Change: Concerning §108.73(4), changed "at least 120 days" to "at least 90 days" to comply with federal regulations at 34 CFR 303.148.

Change: Concerning §108.109(c)(3) and §108.109(d)(4), made clarifying grammatical change to §108.109(c)(3) to read, "A person who qualifies to be a surrogate parent is not an employee solely because he or she is paid to serve as a surrogate", and to §108.109(d)(4), changed "section" to "chapter."

Change: Concerning §108.403(2), deleted definition of "Department" as the term is already defined in §108.3(10).

Change: Concerning §108.403(9), deleted definition of "Early Childhood Intervention (ECI) services" as "Early Intervention Services" is already defined in §108.3(13).

Change: Concerning §108.403(11), deleted definition of "Interdisciplinary team" as the term is already defined in §108.3(21).

Change: Concerning §108.403(12), deleted definition of "Intake" as the term is substantially the same as "Pre-Enrollment" which is defined in §108.3(24).

Change: Concerning §108.603(d)(1), replaced the term "intake" with "pre-enrollment" for consistency.

SUBCHAPTER A. EARLY CHILDHOOD INTERVENTION SERVICE DELIVERY

40 TAC §§108.21, 108.23, 108.25, 108.27, 108.29, 108.31, 108.33, 108.35, 108.37, 108.39, 108.43, 108.47, 108.48

The repeals are adopted under Texas Government Code, Chapter 531, §531.0055(e), which provides the Executive Commissioner of the Health and Human Services Commission with the authority to promulgate rules for the operation and provision of health and human services by health and human services agencies.

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

Filed with the Office of the Secretary of State on August 3, 2009.

TRD-200903292

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Effective date: September 1, 2009

Proposal publication date: March 20, 2009

For further information, please call: (512) 424-4050

SUBCHAPTER B. PROCEDURAL SAFEGUARDS AND DUE PROCESS PROCEDURES

40 TAC §§108.55, 108.57, 108.59, 108.61

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

Filed with the Office of the Secretary of State on August 3, 2009.

TRD-200903293

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Effective date: September 1, 2009

Proposal publication date: March 20, 2009

For further information, please call: (512) 424-4050

SUBCHAPTER D. GENERAL PROVISIONS FOR CASE MANAGEMENT SERVICES FOR INFANTS AND TODDLERS WITH DEVELOPMENTAL DISABILITIES

40 TAC §§108.221, 108.223, 108.225, 108.227, 108.229, 108.231, 108.233, 108.235

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

Filed with the Office of the Secretary of State on August 3, 2009.

TRD-200903294

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Effective date: September 1, 2009

Proposal publication date: March 20, 2009

For further information, please call: (512) 424-4050

SUBCHAPTER E. DEVELOPMENTAL REHABILITATION SERVICES

40 TAC §§108.261, 108.263, 108.265

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

Filed with the Office of the Secretary of State on August 3, 2009.

TRD-200903295

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Effective date: September 1, 2009

Proposal publication date: March 20, 2009

For further information, please call: (512) 424-4050

SUBCHAPTER F. SYSTEM OF FEES

40 TAC §§108.291, 108.293, 108.295

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

Filed with the Office of the Secretary of State on August 3, 2009.

TRD-200903296

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Effective date: September 1, 2009

Proposal publication date: March 20, 2009

For further information, please call: (512) 424-4050

SUBCHAPTER A. EARLY CHILDHOOD INTERVENTION SERVICE DELIVERY

40 TAC §§108.1, 108.3, 108.5, 108.7, 108.9, 108.11, 108.13, 108.15, 108.17, 108.19, 108.71, 108.73, 108.75, 108.77

The new rules are adopted under Texas Government Code, Chapter 531, §531.0055(e), which provides the Executive Commissioner of the Health and Human Services Commission with the authority to promulgate rules for the operation and provision of health and human services by health and human services agencies.

§108.7.Client Eligibility.

(a) The contractor must follow written criteria developed by the Department for determining eligibility for infants and toddlers with disabilities and accepting them into the program.

(b) Early intervention services are available to any child birth to 36 months of age who has a documented developmental delay, or a medically diagnosed condition that has a high probability of resulting in developmental delay, or exhibits atypical development. Determination of eligibility shall be as follows:

(1) Developmental delay: specific level of delay in one or more of the following areas measured and determined by appropriate diagnostic instruments or procedures by an interdisciplinary team and by informed clinical opinion: cognitive development, physical development, communication development, social-emotional development, or adaptive development.

(2) Atypical development: determination must be completed by a qualified professional (i.e., psychologist, occupational therapist, speech therapist, physical therapist, physician, etc.) through administration of an evaluation tool, parental report, and observation of one or more atypical behaviors.

(3) Medically diagnosed condition: must be determined by medical documentation of a specific condition with known etiology and developmental consequences that is included in the list of covered medical conditions approved by the Department. Children with a medically diagnosed condition that is not included in the list of covered medical conditions approved by the Department may still be eligible for early intervention services based on the criteria in paragraphs (1) and (2) of this subsection.

(c) Early childhood intervention services are provided to eligible children in the State including Native American children residing on reservations geographically located in Texas, children who are homeless, wards of the state, and those children authorized for services who have visual or auditory impairments as defined by the Texas Education Code.

§108.11.Referral and Pre-Enrollment.

The program must have procedures for receiving and making referrals for all primary referral sources.

§108.13.Assessment and Evaluation.

(a) The assessment and evaluation for early intervention services must be in accordance with the following criteria and procedures.

(1) Prior to any assessment or evaluation, the parent(s) must be fully informed and give permission regarding the following:

(A) disciplines or staff to be involved in conducting assessments and evaluations;

(B) family's role;

(D) when and how the information obtained will be synthesized and shared; and

(E) who will have access to the information obtained.

(2) If the parent(s) refuses participation in a specific area of an assessment or evaluation, early intervention services may not be denied in other areas.

(3) At no cost to the family, the program must provide a comprehensive, interdisciplinary assessment and evaluation for each child, including assessment activities related to the family.

(4) All assessments and evaluations of the child or family including tests and other evaluative methods and procedures must be:

(A) conducted by personnel trained to use appropriate methods and procedures;

(B) administered in the native language of the parent(s) and child or other mode of communication, unless it is clearly not feasible to do so;

(D) reviewed on an ongoing basis and updated at a frequency recommended by the interdisciplinary team;

(E) based on informed clinical opinion; and

(F) based on appropriate use of multiple methods and procedures which ensure that no single criterion is utilized to determine delay or atypical development.

(b) Child assessments and evaluations must include in addition to all requirements in 34 CFR §303.322 an evaluation of the following developmental areas:

(1) vision and hearing, gross and fine motor skills, and nutrition status;

(2) self-help skills;

(3) an assessment of the child's unique strengths as well as needs in each of the developmental areas;

(4) the identification of services appropriate to meeting those needs; and

(5) parental input.

(c) Identification of the family's concerns, priorities, and resources must be voluntary. If a family agrees, the identification must:

(1) be family directed and designed to determine the concerns, priorities, and resources of the family related to enhancing the child's development; and

(2) be based on information provided by the family.

§108.15.Health Standards for Early Intervention Services.

(a) If the information in the child's records does not include documentation of a physical examination in accordance with the periodicity schedule of the American Academy of Pediatrics, then the Individualized Family Service Plan (IFSP) team will determine if it needs any additional medical information to implement any or all of the strategies in the child's IFSP.

(b) The IFSP team can at any time request additional medical information and should do so as needed to assure the health and safety of the child.

(c) Children who will be participating in any ECI group activities must have immunizations appropriate to the child's age as recommended by the Texas Department of State Health Services (DSHS). If medical or religious reasons contraindicate immunization requirements, documentation to that effect must be maintained by the program, and the family must be notified that their child could be excluded from group activities if a contagious outbreak occurs.

(d) Child health standards. Contractors that receive ECI funds must have written policies and procedures which are implemented and evaluated in each of the following areas.

(1) Medication policies. If staff is involved in the administration of medication, written policies must be maintained regarding such administration.

(2) Infectious disease prevention and management.

(A) All programs must adhere to the procedures of the universal precautions as defined by the Centers for Disease Control of the United States Public Health Service.

(B) All programs must comply with the Texas Communicable Disease Prevention and Control Act, Health and Safety Code, Chapter 81.

(C) In the event of an outbreak of a contagious disease, children attending group activities must be excluded if they have not been immunized due to medical or religious contraindications.

(3) Contractors must follow all federal and state law and regulations regarding providing services and maintaining records for families and children with HIV or other communicable diseases.

§108.17.Individualized Family Service Plan (IFSP).

An Individualized Family Service Plan (IFSP) must be developed for each child eligible for early intervention services and the child's family. Early intervention services must be delivered in conformity with an IFSP.

(1) Procedures for development, review, and evaluation.

(A) The IFSP must be written within 45 days of referral and be developed jointly by the family and appropriate qualified personnel. The IFSP must be based on assessment and evaluation information and include services necessary to enhance the development of the child and the capacity of the family to meet the child's special needs. No IFSP shall be implemented without prior written consent from the parent(s). The contents and the implementation of the IFSP must be fully reviewed with the parent(s) prior to obtaining their consent.

(B) If early intervention services are delivered to a child by more than one contractor, services must be jointly coordinated.

(2) IFSP participants. An interdisciplinary team must meet to establish eligibility and develop the initial and annual IFSPs. The interdisciplinary team must include the following participants:

(A) the parent(s) of the child;

(B) other family members or care providers, when requested by the parent(s);

(D) a minimum of two professionals from different disciplines consisting of:

(i) the service coordinator who has been working with the family since the initial referral of the child for evaluation, or who has been designated by the contractor to be responsible for the implementation of the IFSP; and

(ii) a person or persons directly involved in conducting the evaluations and assessments in §108.13 of this subchapter (relating to Assessment and Evaluation); and

(E) as appropriate, persons who will be providing early intervention services to the child or family.

(3) Contents of the plan. Contractors that receive funds from the Department must have a written IFSP for each child developed jointly by the interdisciplinary team including the child's parent(s).

(A) The IFSP must include an integrated summary of all assessments and evaluations of the child's present levels of physical development (including gross and fine motor skills, nutrition, vision, hearing, and health status), cognitive development, communication (speech-language) development, social-emotional development, and self-help skills or adaptive development. This integrated summary must be based on professionally acceptable criteria.

(B) A description of the child's strengths and needs must be included in the IFSP.

(4) Periodic review. A review of the IFSP for a child and the child's family must be conducted every six months, or more frequently if conditions warrant, or if the family requests such a review.

(A) The purpose of the periodic review is to determine:

(i) the degree to which progress toward achieving the outcomes is being made; and

(ii) whether modification or revision of the outcomes or services is necessary.

(B) The review may be carried out by a meeting or by another means that is acceptable to the parents and other participants.

(5) Annual meeting to evaluate the IFSP. A meeting must be conducted on at least an annual basis to evaluate the IFSP for a child and the child's family, and, as appropriate, to revise its provisions. The results of any current evaluations conducted under §108.13 of this subchapter, and other information available from the ongoing assessment of the child and family, must be used in determining what services are needed and will be provided.

§108.19.Required Early Intervention Services.

(a) The Individualized Family Service Plan (IFSP) shall include all early intervention services, as determined by the interdisciplinary team necessary to enhance the child's development or the family's capacity to meet the developmental needs of the child. These services must be provided under public supervision. With parental consent, the IFSP must also address the resources, priorities, and concerns of the family related to enhancing the child's development.

(b) The IFSP shall include a statement of the specific early intervention services necessary to meet the unique needs of the child and the family to achieve the outcomes expected to be achieved for the child and family. The array of available early intervention services must include, but is not limited to, the following:

(1) service coordination;

(2) early identification, screening, and assessment services;

(3) medical services only for diagnostic or evaluation purposes;

(4) developmental services;

(5) family education;

(6) speech and language therapy;

(7) audiology;

(8) occupational therapy;

(9) assistive technology devices and assistive technology services;

(10) physical therapy;

(11) psychological services;

(12) family counseling;

(13) social work services;

(14) health services necessary to enable the child to benefit from the other early intervention services;

(15) nursing services;

(16) transportation;

(17) nutrition services;

(18) vision services; and

(19) other services.

(c) Required services. Each comprehensive program must provide an evaluation and assessment, service coordination, an Individualized Family Service Plan (IFSP), and early intervention services. Each contractor funded by the Department for early intervention services and follow along must have the capacity to provide or arrange for all services described in subsection (b) of this section. All services which the child or family receives, regardless of the funding sources, must be considered toward meeting the service needs of the child as defined in the child's IFSP. No ECI funding can be used to arrange, provide, or duplicate a service for which other funding sources, public or private, are available and could be used.

(d) ECI child service standards in group settings.

(1) Determination of staff-child ratios must take into account the degree of each child's developmental level of functioning, the setting in which the child will be served, and the nature of the early intervention services to be provided.

(2) Contractors which provide child care as defined by the Texas Department of Family and Protective Services (DFPS) must meet licensing standards of DFPS.

(e) Types of services. For the purpose of this chapter, in addition to all required services in 34 CFR §303.13, the following types of services apply.

(1) Developmental services include:

(A) the design of learning environments and activities that promote the child's acquisition of skills in a variety of developmental areas, including cognitive processes and social interaction;

(B) curriculum planning, including the planned interaction of personnel, materials, and time and space, that leads to achieving the outcomes in the child's IFSP;

(C) providing families with information, skills, and support related to enhancing the skill development of the child; and

(D) working with the child to enhance the child's development.

(2) Service options. Each program must provide options for instruction or intervention, based upon consideration of the medical, social, educational, and developmental needs of the child and the resources, priorities, and concerns of the family as stated in the IFSP. These options include:

(A) individual services in the home, community or other locations;

(B) group services delivered at a site with other children;

(C) to the maximum extent appropriate to the needs of the child, early intervention services must be provided in natural environments, including home and community settings in which children without disabilities participate. Natural environments mean settings that are natural or normal for the child's age peers who have no disabilities;

(D) flexible hours in programming which allow options for parents to participate (i.e., working parents);

(E) variable degrees of family involvement in services, as determined by the family.

(3) Availability of services. The contractor must demonstrate the capacity to provide services for 52 weeks each year.

§108.73.Transition.

The Individualized Family Service Plan (IFSP) must include the steps to be taken to support the transition of the child to public school preschool services (the Individuals with Disabilities Education Act, Part B), upon reaching the age of three, or to other services that may be available, if appropriate. The steps required include:

(1) discussions with, and training of, the parent(s) regarding future placements and other matters related to the child's transition;

(2) procedures to prepare the child for changes in service delivery, including steps to help the child adjust to, and function in, a new setting;

(3) with parental consent, the transmission of information about the child to the local educational agency or other service providers or agencies, to ensure continuity of services, including evaluation and assessment information, and copies of IFSPs that have been developed; and

(4) with the approval of the family, the convening of a conference among the program, the family, and the local educational agency at least 90 days, but no more than 270 days, before the child's third birthday, or, if earlier, the date on which the child is eligible for the preschool program under the Individuals with Disabilities Education Act, Part B.

§108.77.Safety Regulations.

(a) Contractors must have written policies and procedures which are implemented and evaluated to address safety regulations regarding emergencies for all buildings where ECI programs are housed (including offices).

(b) Accessibility and safety. Contractors must have written policies and procedures which are implemented and evaluated in the following areas.

(1) Buildings must be physically accessible to persons with disabilities.

(2) Buildings must be inspected annually by a local or state fire authority. A safety and sanitation inspection must be completed annually. If the fire or safety and sanitation inspection indicates that hazards exist, these hazards must be corrected.

(3) Buildings must be clean, free of hazards, free of insect and rodent infestation, in good repair, with adequate light, ventilation, and temperature control.

(4) Buildings must be equipped with an external emergency release mechanism for opening interior doors that can be locked from the inside. Locks may not be used to restrain a child within a room.

(5) Buildings must be able to be safely evacuated in the event of an emergency.

(c) Transportation safety. Contractors must have written policies and procedures which are implemented and evaluated in the following areas.

(1) The transportation system operated by the ECI program must meet local and state licensing, inspection, insurance, and capacity requirements.

(2) Children must be transported in an appropriately installed, federally approved child passenger restraint seat, appropriate to the child's age and size.

(3) Drivers of vehicles must have valid and appropriate drivers' licenses. Drivers must have current defensive driving certification.

(4) Drivers and drivers' aides must have training in first aid, emergency care of seizures, and be certified in cardiopulmonary resuscitation for children and infants.

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

Filed with the Office of the Secretary of State on August 3, 2009.

TRD-200903297

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Effective date: September 1, 2009

Proposal publication date: March 20, 2009

For further information, please call: (512) 424-4050

SUBCHAPTER B. PROCEDURAL SAFEGUARDS AND DUE PROCESS PROCEDURES

40 TAC §§108.101, 108.103, 108.105, 108.107, 108.109, 108.111, 108.113, 108.115, 108.117, 108.119, 108.121, 108.123, 108.125, 108.127, 108.129, 108.131, 108.133, 108.135, 108.137, 108.139

§108.109.Surrogate Parents.

(a) Each contractor shall ensure that the rights of children eligible under this part are protected if:

(1) no parent can be identified;

(2) the contractor, after reasonable efforts, cannot discover the whereabouts of a parent; or

(3) the child is a ward of the state under the laws of Texas.

(b) The duty of the contractor includes the assignment of an individual to act as a surrogate parent for the child in a way consistent with existing state laws and regulations. This must include a method for:

(1) determining whether a child needs a surrogate parent;

(2) assigning a surrogate parent to the child; and

(3) providing training to ensure that the surrogate parent fully understands their role and responsibilities to represent the best interest of the child.

(1) A person selected as surrogate must have no interest that conflicts with the interests of the child represented.

(2) A person assigned as a surrogate parent must not be an employee of any state agency or a person or an employee of a person providing early intervention services to the child or any family member of the child.

(3) A person who qualifies to be a surrogate parent is not an employee solely because he or she is paid to serve as a surrogate parent.

(4) A person selected as a surrogate parent must have knowledge and skills that ensure adequate representation of the interests of the child.

(5) The requirements of paragraphs (1) - (4) of this subsection ensure that the surrogate parent does not hold a job or a position that would either bias the decisions made for the child or make the surrogate parent vulnerable to the possibility of administrative retaliation for the execution of their responsibilities.

(d) A surrogate parent may represent a child in all matters related to:

(1) the evaluation and assessment of the child;

(2) development and implementation of the child's IFSPs, including annual evaluations and periodic reviews;

(3) the ongoing provision of early intervention services to the child; and

(4) any other rights established under this chapter.

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

Filed with the Office of the Secretary of State on August 3, 2009.

TRD-200903298

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Effective date: September 1, 2009

Proposal publication date: March 20, 2009

For further information, please call: (512) 424-4050

SUBCHAPTER C. EARLY CHILDHOOD INTERVENTION STAFF QUALIFICATIONS

40 TAC §§108.301, 108.303, 108.305, 108.307, 108.309, 108.311, 108.313, 108.315, 108.317, 108.319, 108.321

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

Filed with the Office of the Secretary of State on August 3, 2009.

TRD-200903299

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Effective date: September 1, 2009

Proposal publication date: March 20, 2009

For further information, please call: (512) 424-4050

SUBCHAPTER D. GENERAL PROVISIONS FOR CASE MANAGEMENT SERVICES FOR INFANTS AND TODDLERS WITH DEVELOPMENTAL DISABILITIES

40 TAC §§108.401, 108.403, 108.405, 108.407, 108.409, 108.411, 108.413, 108.415

§108.403.Definitions.

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

(1) Assessment--The ongoing procedures used by appropriate qualified personnel throughout the period of a child's eligibility to identify:

(A) the child's unique needs and strengths;

(B) the family's strengths and needs related to their child's development; and

(C) the nature and extent of intervention services needed by the child and the family in order to assess subparagraphs (A) and (B) of this paragraph.

(2) Caregiver--A person, such as a parent, foster parent, grandparent, child-care worker, who has responsibilities for the care of a child.

(3) Case management--Services provided to assist eligible individuals in gaining access to needed medical, social, educational, developmental, and other appropriate services.

(4) Case manager (service coordinator)--An Early Childhood Intervention (ECI) local program staff person who is assigned to a child and family, who is the single contact point for families, and who is responsible for assisting and empowering families in accessing services and coordinating those services.

(5) Developmental delay--A significant variation in normal development in one or more of the following areas as measured and determined by appropriate diagnostic instruments and procedures by an interdisciplinary team and by informed clinical opinion: cognitive development; physical development, including vision and hearing, gross and fine motor skills, and nutrition status; communication development; social and emotional development; and adaptive development or self-help skills.

(6) Developmental disability--Children from birth to age three who have substantial developmental delay or specific congenital or acquired conditions with a high probability of resulting in developmental disabilities if services are not provided.

(7) ECI--The Texas Early Childhood Intervention Program.

(8) Individualized Family Service Plan (IFSP)--A written plan, developed by the interdisciplinary team, based on all assessment and evaluation information and including the family's description of their strengths and needs, which outlines the intervention services for the child and the child's family.

(9) Monitoring--Periodic tracking, observation and follow up to ensure that services have been delivered, that services have been delivered on a timely basis, and that the services are addressing the clients' needs. Monitoring and follow up activities are conducted as needed and are documented in the child's case folder.

(10) Needs assessment--The needs assessment is conducted and documented by the case manager in conjunction with the Medicaid client's family. The documentation lists medical, social, nutritional, educational, developmental, and other appropriate needs of the Medicaid client. Individuals found not to be eligible for early intervention services, or whose families choose not to enroll in early intervention services are to be referred to any appropriate alternative care or services.

(11) Plan of care--Information gathered from the comprehensive needs assessment is incorporated into an Individualized Family Service Plan of care (IFSP). With family consent, family concerns, priorities and resources are identified and documented in the plan. The plan summarizes assessment results, includes the services necessary to enhance the development of the child and the capacity of the family to meet the child's unique needs, and must be coordinated with other service providers involved in delivery of services to the child and family.

(12) Reassessment and Transition Planning--A reassessment of the client's progress and needs is conducted at least every six months. The case manager documents the reassessment in the client's case folder. At reassessment the case manager will determine if modifications to the service plan are necessary and if the level of involvement by the case manager should be adjusted. When services are no longer needed, or the child no longer qualifies for services, the case manager facilitates the planning, coordination, and transition to other appropriate care.

(13) Service coordination--Through linkage, coordination, facilitation, assistance, anticipatory guidance, and the provision of information about the child's medical needs to other health care providers, the case manager ensures the recipient's access to the care, resources and services to meet the client's needs. The case manager may assist the family in making applications for services, confirm service delivery dates with ECI staff, providers and supports, and assist the family with scheduling needs. The case manager assists the family in taking responsibility for ensuring that services are performed, and works with medical providers, ECI staff, and other community resources to coordinate care.

(14) Texas Health Steps--The name adopted by the State of Texas for the federally mandated Early and Periodic Screening, Diagnosis and Treatment (EPSDT) program. It includes the State's Comprehensive Care Program extension to EPSDT.

(15) Time and Financial Information (TAFI)--A combined cost report and time study report, collected quarterly from providers.

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

Filed with the Office of the Secretary of State on August 3, 2009.

TRD-200903300

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Effective date: September 1, 2009

Proposal publication date: March 20, 2009

For further information, please call: (512) 424-4050

SUBCHAPTER E. DEVELOPMENTAL REHABILITATION SERVICES

40 TAC §§108.501, 108.503, 108.505

§108.501.Reimbursable Services.

(a) Services that are covered under the Developmental Rehabilitation Services Program are reimbursable to Medicaid providers who meet the conditions for provider participation as specified in §108.505 of this subchapter (relating to Conditions for Provider Participation in the Developmental Rehabilitation Services Program). Developmental Rehabilitation Services are diagnostic, evaluative, and consultative services for the purposes of identifying or determining the nature and extent of, and rehabilitating an individual's medical or other health-related condition. They are medical and/or remedial services that integrate therapeutic interventions into the daily routines of the child and family in order to restore or maintain function and/or to reduce dysfunction resulting from a mental or physical disability or developmental delay. Services are designed to enhance development in the physical/motor, communication, adaptive, cognitive, social or emotional and sensory domains, or to teach compensatory skills for deficits that directly result from medical, developmental or other health-related conditions. Developmental Rehabilitation Services are provided as specified in the active Individualized Family Service Plan (IFSP) developed in accordance with 40 TAC §108.5 of this chapter (relating to Service Delivery Requirements for Early Intervention Services). The services include:

(1) developmentally appropriate individualized skills training and support to foster, promote, and enhance child engagement in daily activities, functional independence, and social interaction;

(2) assistance to caregivers in the identification and utilization of opportunities to incorporate therapeutic intervention strategies into daily life activities that are natural and normal for the child and family;

(3) continuous monitoring of child progress in the acquisition and mastery of functional skills to reduce or overcome limitations resulting from disability or developmental delays.

(b) The services listed in subsection (a)(1) - (3) of this section are performed by or under the supervision of a person authorized in the Texas Medicaid State Plan, including a licensed physician, registered nurse, licensed physical therapist, licensed occupational therapist, licensed speech language pathologist, licensed professional counselors, or licensed master social workers-advanced clinical practitioners acting within their scope of practice. Supervision in this section means participation in the initial and annual comprehensive assessment of the child as well as participation in the initial and annual development of the IFSP and any subsequent revisions of the plan that result in service changes.

(1) provided to children with a diagnosis of a developmental disability defined as a severe, chronic disability of a person which:

(A) is attributable to mental or physical impairment or combination of mental and physical impairments;

(B) is manifested before the person attains age 22;

(D) results in substantial functional limitations in three or more of the following areas of major life activity: self-care, receptive and expressive language, learning, mobility, self-direction, capacity for independent living, or economic self-sufficiency, or a diagnosis of mental retardation; or

(2) the services are guaranteed under the provisions of Individuals with Disabilities Education Act (IDEA) Part B.

§108.503.Recipient Eligibility for Services Funded by the Developmental Rehabilitation Services Program.

In order to receive Developmental Rehabilitation Services the recipient:

(1) must be enrolled in the Texas Medical Assistance Program;

(2) must be age 21 and under;

(3) must demonstrate the need for these services as documented in an active Individualized Family Service Plan (IFSP) developed in accordance with 40 TAC §108.5 of this chapter (relating to Service Delivery Requirements for Early Intervention Services).

§108.505.Conditions for Provider Participation in the Developmental Rehabilitation Services Program.

(a) In accordance with the regulations at 42 CFR §431.51, all willing and qualified providers may participate in this program.

(b) In order to be reimbursed for developmental rehabilitation services as specified in §108.501 of this subchapter (relating to Reimbursable Services), a provider must:

(1) meet applicable state and federal laws governing the participation of providers in the Medicaid Program;

(2) sign a provider agreement with the Medicaid single state agency;

(3) be certified by the Department;

(4) provide services under the supervision of a person authorized to supervise these services in the Texas Medicaid State Plan, including a licensed physician, registered nurse, licensed physical therapist, licensed occupational therapist, licensed speech language pathologist, licensed professional counselor, or licensed master social worker-advanced clinical practitioner acting within their scope of practice who are employed as agency or contract staff, or developmental rehabilitation services by a:

(A) licensed therapist,

(B) licensed counselor,

(D) registered nurse,

(E) Early Intervention Specialist (EIS) professional participating in or certified through the ECI Competency Demonstration System,

(F) certified teacher certified through the ECI Competency Demonstration System, or

(G) psychological associate;

(5) provide to the maximum extent appropriate to the needs of the child, early intervention services in natural environments, including home and community settings in which children without disabilities participate. Natural environments mean settings that are natural or normal for the child's age peers who have no disabilities; and

(6) deliver services in accordance with the scope and duration of the Individualized Family Service Plan (IFSP).

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

Filed with the Office of the Secretary of State on August 3, 2009.

TRD-200903301

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Effective date: September 1, 2009

Proposal publication date: March 20, 2009

For further information, please call: (512) 424-4050

SUBCHAPTER F. SYSTEM OF FEES

40 TAC §108.601, §108.603

§108.603.Administration of Family Cost Share System.

(a) Each ECI program must implement the family cost share system of sliding fees for all children enrolled in ECI comprehensive services in compliance with this subchapter, DARS policies concerning ECI and the contract.

(b) Prior to collection of income information or imposition of fees, parents must be fully informed of their right to receive certain ECI services at no cost, their right to refuse any services they do not wish to receive, their right to receive a review of their cost share or amounts due by an administrator of the program on request, and their right to information about any method the program may use to verify family income and allowable expenses.

(c) Programs must ensure that the inability of a family to pay for services will not result in the delay or denial of services to the child or the family.

(d) Determination of family income. The program will calculate the family's ability to pay based on the family's income in the following manner:

(1) During the pre-enrollment process and at each six month and annual Individualized Family Service Plan (IFSP) review the program will collect information from the family regarding the family's gross income.

(2) The program may require verification of income from families based on written local policies or may rely on family self-report of income.

(A) Except as provided in subparagraph (B) of this paragraph, families with proof of enrollment in Medicaid, CHIP, food stamps, SSI or TANF cash benefits for all children enrolled in ECI are automatically assumed to have an inability to pay. Children in the conservatorship of the State including children in foster care are automatically determined to have an inability to pay.

(B) Families enrolled in Medicaid who have private insurance and consent to having their private insurance billed will be automatically assumed to have an inability to pay and need not provide further information for family cost share determination, even if their private insurance denies all claims for coverage.

(C) Enrollment of a child in a Medicaid waiver program is not deemed to be evidence of inability to pay if the family is not eligible for other Medicaid benefits.

(D) All children with auditory or visual disabilities who are eligible for a free and appropriate public education from birth under the Texas Education Code, §29.003(b)(1) are exempt from the cost share system. A note of the exemption shall be included on the Family Cost Share Agreement.

(3) Once the annual gross family income has been determined, the parents may request that their annual adjusted family income be calculated by deducting allowable expenses from the gross income.

(A) Allowable expenses are those expenses expected to occur and/or be paid during the term of the IFSP and may include:

(i) Medical or dental expenses not reimbursed by insurance that the family incurred and which are expected to continue during the current IFSP period.

(ii) Payment toward outstanding medical or dental debt.

(iii) Medical and/or dental expenses and debt may include those accrued by all family members.

(iv) Childcare and respite expenses not reimbursed by other sources.

(v) Costs and fees associated with the adoption of a child.

(vi) Court-ordered child support payments for children who are not counted as family members or dependents in calculating the adjusted income and family cost share.

(B) The program may require verification of expenses from families based on written local policies or may rely on family self-report of expenses.

(4) Copies of income and/or expense documents need not be maintained by the program if an ECI employee reviews the documents and provides a written statement of verification, including a notation of the source of the documentation.

(5) A family who refuses to provide information for family cost share determination when requested by the program will be assessed as able to pay the highest cost share reflected on the sliding fee scale, until such time as they submit the required information. Services required to be provided at no cost will not be denied or delayed if the family fails to provide income information.

(6) If the program reviews the family's request for deductions to gross family income due to allowable expenses and finds that adjustments to the cost share are warranted, the cost share will take effect at the beginning of the next calendar month.

(7) Income is calculated based on income for all parents or guardians living in the same home with the child as a family. In situations where there is shared physical custody or shared legal or financial responsibility for a child, the adjusted income(s) of the parent(s) who financially supports the child will be considered unless conditions warrant otherwise.

(e) Determination of ability to pay and assignment of family cost share.

(1) Using the sliding scale developed by DARS, the program will determine the family's assigned monthly cost share. The sliding fee scale can be obtained from the Department.

(2) Families with a family income at or below 250 percent of the Federal Poverty Level will have a family cost share of $0 and are determine to have an inability to pay.

(3) Families enrolled in Medicaid who have private insurance and refuse to allow ECI to bill their private insurance, thereby preventing submission of Medicaid claims, will be assigned a monthly cost share of $10.

(f) IFSP services.

(1) Those services that must be provided at no cost to the family are:

(A) child find;

(B) evaluation and assessment;

(D) all services to children with auditory or visual disabilities eligible for a free and appropriate public education from birth under the Texas Education Code, §29.003(b)(1);

(E) service coordination;

(F) translation and interpreter services; and

(G) administrative and coordination activities related to the implementation of procedural safeguards and other components of the statewide system of early intervention services.

(2) The monthly family cost share is the maximum amount a family can be charged for all other services provided by ECI as part of an IFSP.

(3) The state respite program funded with state discretionary funds is not subject to the cost share system.

(4) A family will be responsible for the assigned monthly cost share unless no services, other than those listed in paragraph (1) of this subsection, were delivered in the month.

(5) The maximum monthly cost share for which the family will be responsible will be indicated on a Family Cost Share Agreement form that the family must sign.

(6) For a family with an ability to pay, services included on the IFSP which are subject to cost share shall not be provided until the family signs the Family Cost Share Agreement.

(7) Services included on the IFSP which are not subject to cost share shall begin immediately after the IFSP is developed.

(g) Review of family cost share.

(1) The family's ability to pay and cost share amount will be reviewed at the six month review and annual IFSP meeting, or at any time the family requests a review, including immediately following initial assessment of ability to pay. Programs may provide for a streamline review without completing a new Family Cost Share Agreement when there has been no change in family income or size since the previous review.

(2) ECI programs must develop a local process for a family to request reconsideration or adjustment of their assigned family cost share and/or to request a waiver of their cost share obligation, amounts currently due or overdue based on extraordinary circumstances, including amounts due based on denial of claims by a third-party payor as per subsection (h)(1)(A) of this section. Adjustments for allowable expenses should be made prior to the consideration of extraordinary expenses. The program may initiate the review process when staff members become aware that the family is experiencing extraordinary circumstances that impact the family's ability to pay their cost share obligations.

(A) The review should be conducted by the program director or designated administrator.

(B) Examples of circumstances that could justify a reconsideration or change of a family's assigned cost share, or that could justify a temporary waiver from their monthly cost share obligation or amounts currently due or overdue, could include but are not limited to:

(i) increase or decrease in income, including loss of job or temporary unpaid leave from employment;

(ii) short-term medical expenses not deducted during determination of adjusted income;

(iii) extraordinary child care or respite expenses not deducted during the determination of adjusted income;

(iv) additional dependants or change in family size;

(v) catastrophic loss such as fire, flood or tornado;

(vi) short-term financial hardship such as major repair to the family home or car; or

(vii) other extenuating circumstances or financial obligations which the family feels are not adequately considered in the assessment of adjusted income, assigned monthly cost share, or their ability to meet their cost share in any particular month(s).

(C) Families may be asked to submit verification of such circumstances. Refusal to do so may result in denial of the cost share adjustment.

(3) If the program determines that adjustments to the cost share are warranted, the revised cost share will take effect at the beginning of the next month. The Family Cost Share Agreement must be amended for any revision of the family cost share, and family signature must be obtained for the revised Family Cost Share Agreement.

(4) Families must be informed of the program's process for reviewing their family cost share amount before they are asked to sign the Family Cost Share Agreement.

(5) The family's last signed IFSP and Family Cost Share Agreement will remain in effect during any review process. For families without a signed Cost Share Agreement, the services included on the IFSP which are not subject to cost share shall begin or continue during any period of review.

(h) Children with Insurance.

(1) Third-party payors.

(A) With parental consent, programs must bill Medicaid, CHIP, TriCare and private insurance or other third-party payors for covered services delivered according to the IFSP. To allow the local program to establish insurance billing, in the initial six months of service, family cost share shall be set at $0 as long as the child maintains insurance coverage and the parent continues to provide the program with consent to bill the insurance for ECI services. After the initial six months, third-party reimbursement of any IFSP service(s) will satisfy the family's cost share obligation for the month the service(s) was delivered. If the third-party payor completely denies coverage for IFSP services subject to fees, the family will be responsible for the assigned cost share.

(B) Any applicable insurance co-payments for services may be paid with ECI federal funds.

(2) Billing families for services.

(A) Programs must bill the family for the assigned cost share.

(B) The assigned family cost share is the maximum amount to be billed to the family regardless of the number of children in the family receiving services from ECI.

(3) Payment and non-payment of fees.

(A) Families will have 30 days from the billing date to pay their family cost share. All unpaid balances due from the family after 30 days will be considered delinquent unless the delay in payment is due to a delay in third-party reimbursement or notice of denial of a claim from a private or public third-party payor.

(B) Services subject to cost share will be suspended after 90 days for non-payment of family cost share. For families consenting to payment by third-party payors, the 90-day time period will begin when notice is first received that the third-party payor has denied all claims for reimbursement and all appeals are exhausted, if applicable. Partial reimbursement by a third-party payor will satisfy the family's cost share obligation for the month, as per paragraph (1)(A) of this subsection.

(C) Families must be notified that failure to maintain their cost share account in good standing will, after 90 days, result in the suspension of IFSP services that are subject to family cost share, and that if services are later reinstated, the program cannot guarantee that they will be reinstated on the same schedule or with the same individual service provider as prior to suspension.

(D) Service coordination and other services not subject to family cost share must be continued during any period of suspension, except that respite vouchers may be denied for payment during a period of suspension.

(E) A notation must be made on the Family Cost Share Agreement that services subject to family cost share have been suspended due to non-payment. If a family transfers between Texas ECI programs, the Family Cost Share Agreement will be transferred to the receiving ECI program along with the IFSP.

(F) Services that have been suspended will be reinstated when the family's account is paid in full or the family negotiates an acceptable payment plan with the local program. If more than six months have transpired since suspension, the IFSP team must reassess the appropriateness of the IFSP before reinstating services. The IFSP and the Family Cost Share Agreement should reflect the date of the reinstatement of services.

(G) Programs must have a written local policy for collecting delinquent family cost share. Documentation must be kept of reasonable attempts to collect on unpaid balances. Reasonable attempts include multiple attempts at written notification, phone notification and/or e-mail. The Program Director or Administrator may modify a family's payment plan or cost share if circumstances warrant.

(i) Program fiscal and record-keeping policies.

(1) Revenue received from the family cost share may only be used for early intervention services within the ECI program and may not supplant any other local fund sources. Fees collected must be reported to the ECI state office as program income.

(2) The Family Cost Share Agreement and any financial records related to income, expenses, and payment history shall be kept separate from the child's other educational records, and should not be forwarded to a school district or other non-ECI service provider(s) at any time unless requested by the family. All financial records must be maintained in a manner consistent with the Family Educational Rights and Privacy Act.

(3) The Family Cost Share Agreement and financial records must be transferred to another ECI program in the state if the child and family transfer to another ECI program.

(4) The Family Cost Share Agreement and financial records are subject to subpoena, if applicable.

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

Filed with the Office of the Secretary of State on August 3, 2009.

TRD-200903302

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Effective date: September 1, 2009

Proposal publication date: March 20, 2009

For further information, please call: (512) 424-4050

SUBCHAPTER G. CONTRACT REQUIREMENTS

40 TAC §§108.701, 108.703, 108.705, 108.707, 108.709, 108.711

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

Filed with the Office of the Secretary of State on August 3, 2009.

TRD-200903303

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Effective date: September 1, 2009

Proposal publication date: March 20, 2009

For further information, please call: (512) 424-4050

PART 20. TEXAS WORKFORCE COMMISSION

CHAPTER 813. SUPPLEMENTAL NUTRITION ASSISTANCE PROGRAM EMPLOYMENT AND TRAINING

The Texas Workforce Commission (Commission) adopts amending the title of Chapter 813, Food Stamp Employment and Training, without changes, to Chapter 813, Supplemental Nutrition Assistance Program Employment and Training, as published in the May 8, 2009, issue of the Texas Register (34 TexReg 2753).

The Commission adopts amendments, without changes, to the following sections of Chapter 813, relating to Supplemental Nutrition Assistance Program Employment and Training, as published in the May 8, 2009, issue of the Texas Register (34 TexReg 2753):

Subchapter A, General Provisions, §§813.1 - 813.3

Subchapter B, Access to Employment and Training Activities and Support Services, §§813.11 - 813.14

Subchapter C, Expenditure of Funds, §813.22

Subchapter D, Allowable Activities, §813.31 and §813.32

Subchapter E, Support Services for Participants, §813.41

The Commission adopts the following new sections without changes, to Chapter 813, relating to Supplemental Nutrition Assistance Program Employment and Training, as published in the May 8, 2009, issue of the Texas Register (34 TexReg 2753):

Subchapter A, General Provisions, §813.4 and §813.5

Subchapter D, Allowable Activities, §813.33 and §813.34

PART I. PURPOSE, BACKGROUND, AND AUTHORITY

PART II. EXPLANATION OF INDIVIDUAL PROVISIONS WITH COMMENTS AND RESPONSES

PART I. PURPOSE, BACKGROUND, AND AUTHORITY

The purpose of the adopted Chapter 813 rule change is to:

--implement new job retention services and support services;

--detail the requirements for documentation, verification, and supervision of work activities to further align with Choices services;

--specify when good cause must be determined; and

--make necessary technical corrections and clarifications, including changing the name of Food Stamp Employment and Training (FSE&T) to Supplemental Nutrition Assistance Program Employment and Training (SNAP E&T).

The Food, Conservation, and Energy Act of 2008 (FCEA), enacted June 18, 2008, amended the Food Stamp Act of 1977, now named the Food and Nutrition Act of 2008. Among the changes, states have been given the option of providing job retention services and support services.

In accordance with 7 U.S.C. §2015(d)(4)(B)(vii) and 7 U.S.C. §2025(h)(3), the Commission has amended the Federal Fiscal Year 2009 (FFY'09) FSE&T State Plan to implement job retention services and support services effective FFY'09. The job retention policies outlined in the FFY'09 FSE&T State Plan amendment have been approved by the U.S. Department of Agriculture (USDA) Food and Nutrition Service (FNS).

Guidance received from FNS permits states to provide additional support services not allowed in prior years. Chapter 813 has been amended to include this change.

Because of the Commission's commitment to align Choices and SNAP E&T to the extent allowed under federal law, requirements for documentation, verification, and supervision of work activities are included in this chapter.

Also enacted under FCEA, the name of the Food Stamp Program was changed to the Supplemental Nutrition Assistance Program (SNAP). The Texas Health and Human Services Commission (HHSC), which administers the federal Food Stamp Program, has informed the Agency that effective April 1, 2009, it also will change the name of the state food stamp program to SNAP. To align with the federal and state name changes, the Commission will change the name FSE&T to SNAP E&T. This name change is made throughout the adopted rules in addition to other technical corrections and changes made to simplify and clarify rule language.

PART II. EXPLANATION OF INDIVIDUAL PROVISIONS WITH COMMENTS AND RESPONSES

(Note: Minor editorial changes are made that do not change the meaning of the rules and, therefore, are not discussed in the Explanation of Individual Provisions.)

SUBCHAPTER A. GENERAL PROVISIONS

The Commission adopts the following amendments to Subchapter A:

§813.4. Board Policies and Local Procedures.

New §813.4 sets forth the requirements for the development of Board policies and local procedures.

To ensure consistency of the methods and amounts of work-related and housing assistance disbursed to SNAP recipients, and assist Boards with the management of SNAP E&T 50/50 percent funds, new §813.4(a)(1) - (2) requires Boards to establish policies and procedures regarding the methods and limitations for the provision of support services, specifically work-related expenses and housing assistance.

New §813.4(b) incorporates the contents of removed §813.11(g), which provides that Boards may establish optional policies that require the use of Eligible Training Provider System (ETPS) and Individual Training Accounts (ITAs), as set forth in Chapter 841 of this title relating to the Workforce Investment Act, to provide SNAP E&T-funded services for SNAP E&T participants.

New §813.4(c) requires Boards that establish the optional policies described in §813.4(b) to develop corresponding procedures.

§813.5. Documentation, Verification, and Supervision of Work Activities.

New §813.5 aligns SNAP E&T with Choices requirements for the documentation, verification, and supervision of all SNAP E&T work activities.

Section 813.5(a) states that all required information related to the documentation and verification of participation in SNAP E&T work activities, as described in the section, must be documented in The Workforce Information System of Texas (TWIST).

Section 813.5(b) requires that all participation in SNAP E&T must be verified and documented and that self-attestation must not be allowed.

Section 813.5(c) requires that all participation in the activity described in §813.31(5) must be verified and documented in TWIST at least monthly.

Section 813.5(d)(1) - (2) requires that all participation in the activities described in §813.31(1) and (4) and §813.32(a)(4) must be supervised daily and verified and documented in TWIST at least monthly.

Section 813.5(e)(1) - (2) requires that for the activities described in §813.31(2) and (3):

--no more than one hour of unsupervised study or homework time per each hour of class time must be counted toward participation in SNAP E&T; and

--all study and homework time in excess of one hour per hour of class time must be directly monitored, supervised, verified, and documented.

Section 813.5(e)(3)(A) - (B) requires that study or homework time must only count toward participation in SNAP E&T if:

--the study or homework time is directly correlated to the demands of the coursework for out-of-class preparation as described by the educational institution; and

--the educational institution's policy requires a certain number of out-of-class preparation hours for the class.

Section 813.5(e)(4) requires that good or satisfactory progress, as determined by the educational institution, must be verified and documented in TWIST at least monthly.

Section 813.5(e)(5) requires that all participation in SNAP E&T must be supervised daily.

Section 813.5(e)(6) requires that all participation in SNAP E&T must be verified and documented in TWIST at least monthly.

Certain paragraphs in this subchapter have been renumbered to accommodate the name change to SNAP E&T.

SUBCHAPTER B. ACCESS TO EMPLOYMENT AND TRAINING ACTIVITIES AND SUPPORT SERVICES

The Commission adopts the following amendments to Subchapter B:

§813.11. Board Responsibilities Regarding Access to SNAP E&T Activities and Support Services.

Section 813.11(g), providing Boards the option to require the use of ETPS and ITAs, is removed and incorporated in §813.4(b).

§813.13. Good Cause for Mandatory Work Registrants and Exempt Recipients Who Voluntarily Participate in SNAP E&T Services.

During the policy concept phase of the rulemaking process, the Commission received a comment noting that SNAP Employment and Training: A Comprehensive Guide states that mandatory work registrants can claim good cause before or after a penalty has been initiated in TWIST, as long as the penalty has not been imposed by HHSC.

The Commission agrees and appreciates the comment. To ensure clarity of the Commission's intent that good cause be determined before SNAP benefits are denied, §813.13(a)(1) - (2) adds language to specify that good cause must be determined when:

--mandatory work registrants state that they have a legitimate reason for failing to respond to the outreach notification; and

--mandatory work registrants and exempt recipients who voluntarily participate in SNAP E&T services have legitimate reasons for failing to participate in SNAP E&T activities.

SUBCHAPTER C. EXPENDITURE OF FUNDS

The Commission adopts the following amendments to Subchapter C:

§813.22. Use of Funds.

Section 813.22(1)(A) - (B) is reorganized for better clarity and adds the phrase "exempt recipients who voluntarily participate" to specify that SNAP E&T funds also can be used to provide SNAP E&T services to volunteers. In March 2005, the Commission amended Chapter 813 to allow Boards the flexibility to expand SNAP E&T services statewide to include volunteers. However, the Commission postponed amending this section until certain 50/50 funding issues were resolved.

Section 813.22(2) clarifies that only SNAP E&T 50/50 funds can be used to provide SNAP E&T support services listed in §813.41.

New §813.22(3) provides that job retention services for SNAP recipients who participated in SNAP E&T activities and obtained full-time employment may be provided for no more than 90 days and must be funded with 100 percent funds or 50/50 funds, or both. USDA guidance allows states that elect to provide job retention services to use their 100 percent and 50/50 funds to administer these services.

New §813.22(4) provides that job retention support services for SNAP recipients who participated in SNAP E&T activities and obtained full-time or part-time employment may be provided for no more than 90 days and must be funded with 50/50 funds.

SUBCHAPTER D. ALLOWABLE ACTIVITIES

The Commission adopts the following amendments to Subchapter D:

§813.33. Job Retention Activities.

New §813.33(a)(1) - (3) allows Boards to provide job retention activities:

--similar to the SNAP E&T activities in §813.31(1) - (3), and as specified in the annual SNAP E&T state plan of operations, and any subsequent amendments, approved by USDA;

--for up to 90 days to SNAP recipients who participated in SNAP E&T activities and obtained full-time employment; and

--in full-service or minimum-service counties as funding permits.

New §813.33(b) requires Boards to ensure that SNAP eligibility is verified each month that job retention activities are provided.

§813.34. Job Retention Support Services.

New §813.34(1) - (2) allows Boards to provide job retention support services for up to 90 days to assist:

--mandatory work registrants who obtain part-time employment while participating, or after successfully participating, in SNAP E&T activities; and

--exempt recipients who participated in SNAP E&T activities and obtained full-time employment.

SUBCHAPTER E. SUPPORT SERVICES FOR PARTICIPANTS

The Commission adopts the following amendments to Subchapter E:

§813.41. Provision of SNAP E&T Support Services.

Section 813.41(a)(1)(B), prohibiting the provision of support services to mandatory work registrants for the purpose of retaining employment, is removed. As provided in new §813.34(a)(1), Boards may provide job retention support services for up to 90 days to assist mandatory work registrants with retaining employment.

Section 813.41(a)(2)(B), prohibiting the provision of support services to exempt recipients for the purpose of retaining employment, is removed. As provided in new §813.34(a)(2), Boards may provide job retention support services for up to 90 days to assist exempt recipients with retaining employment.

Section 813.41(b)(3) removes the term "work" and incorporates it into new §813.41(b)(4).

New §813.41(b)(4)(A) - (B) adds that support services include payment or reimbursement for work-related expenses that are:

--reasonable, necessary, and directly related to accepting or retaining employment; and

--paid for based on methods and amounts established in Boards' local policies and procedures.

New §813.41(b)(5) adds that support services include payment or reimbursement for housing expenses that are:

--reasonable, necessary, and directly related to SNAP E&T participation or retaining employment; and

--paid for based on methods and amounts established in Boards' local policies and procedures.

Certain subparagraphs in this subchapter have been renumbered to accommodate additions or deletions.

SUBCHAPTER F. COMPLAINTS AND APPEALS

The Commission adopts the following amendment to Subchapter F:

A technical correction is made to the title of Subchapter F, which is changed from "Complaints and Appeals" to "Complaints." Requirements related to appeals previously contained in Chapter 813 were removed in 2007 and moved to new Chapter 823, Integrated, Complaints, Hearings, and Appeals.

NO COMMENTS WERE RECEIVED.

The Agency hereby certifies that the adoption has been reviewed by legal counsel and found to be within the Agency's legal authority to adopt.

SUBCHAPTER A. GENERAL PROVISIONS

40 TAC §§813.1 - 813.5

The rules are adopted under Texas Labor Code §301.0015 and §302.002(d), which provide the Texas Workforce Commission with the authority to adopt, amend, or repeal such rules as it deems necessary for the effective administration of Agency services and activities, and Texas Human Resources Code §44.002, regarding Administrative Rules.

The adopted rules affect Texas Labor Code, Title 4, particularly Chapters 301 and 302, as well as Texas Government Code, Chapter 2308.

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

Filed with the Office of the Secretary of State on July 28, 2009.

TRD-200903185

Reagan Miller

Deputy Division Director, Workforce Policy and Service Delivery

Texas Workforce Commission

Effective date: August 17, 2009

Proposal publication date: May 8, 2009

For further information, please call: (512) 475-0829

SUBCHAPTER B. ACCESS TO EMPLOYMENT AND TRAINING ACTIVITIES AND SUPPORT SERVICES

40 TAC §§813.11 - 813.14

The adopted rules affect Texas Labor Code, Title 4, particularly Chapters 301 and 302, as well as Texas Government Code, Chapter 2308.

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

Filed with the Office of the Secretary of State on July 28, 2009.

TRD-200903186

Reagan Miller

Deputy Division Director, Workforce Policy and Service Delivery

Texas Workforce Commission

Effective date: August 17, 2009

Proposal publication date: May 8, 2009

For further information, please call: (512) 475-0829

SUBCHAPTER C. EXPENDITURE OF FUNDS

40 TAC §813.22

The rule is adopted under Texas Labor Code §301.0015 and §302.002(d), which provide the Texas Workforce Commission with the authority to adopt, amend, or repeal such rules as it deems necessary for the effective administration of Agency services and activities, and Texas Human Resources Code §44.002, regarding Administrative Rules.

The adopted rule affects Texas Labor Code, Title 4, particularly Chapters 301 and 302, as well as Texas Government Code, Chapter 2308.

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

Filed with the Office of the Secretary of State on July 28, 2009.

TRD-200903187

Reagan Miller

Deputy Division Director, Workforce Policy and Service Delivery

Texas Workforce Commission

Effective date: August 17, 2009

Proposal publication date: May 8, 2009

For further information, please call: (512) 475-0829

SUBCHAPTER D. ALLOWABLE ACTIVITIES

40 TAC §§813.31 - 813.34

The adopted rules affect Texas Labor Code, Title 4, particularly Chapters 301 and 302, as well as Texas Government Code, Chapter 2308.

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

Filed with the Office of the Secretary of State on July 28, 2009.

TRD-200903188

Reagan Miller

Deputy Division Director, Workforce Policy and Service Delivery

Texas Workforce Commission

Effective date: August 17, 2009

Proposal publication date: May 8, 2009

For further information, please call: (512) 475-0829

SUBCHAPTER E. SUPPORT SERVICES FOR PARTICIPANTS

40 TAC §813.41

The adopted rule affects Texas Labor Code, Title 4, particularly Chapters 301 and 302, as well as Texas Government Code, Chapter 2308.

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

Filed with the Office of the Secretary of State on July 28, 2009.

TRD-200903189

Reagan Miller

Deputy Division Director, Workforce Policy and Service Delivery

Texas Workforce Commission

Effective date: August 17, 2009

Proposal publication date: May 8, 2009

For further information, please call: (512) 475-0829