Adopted Sections An agency may take final action on a section 30 days after a proposal has been published in the Texas Register. The section becomes effective 20 days after the agency files the correct document with the Texas Register, unless a later date is specified or unless a federal statute or regulation requires implementation of the action on shorter notice. If an agency adopts the section without any changes to the proposed text, only the preamble of the notice and statement of legal authority will be published. If an agency adopts the section with changes to the proposed text, the proposal will be republished with the changes. TITLE 16. ECONOMIC REGULATION Part II. Public Utility Commission of Texas Chapter 23. Substantive Rules Customer Service and Protection 16 TAC sec.23.45 The Public Utility Commission of Texas adopts an amendment to sec.23.45, concerning billing, with changes to the proposed text as published in the September 25, 1992, issue of the Texas Register (17 TexReg 6590). The purpose of the amendment is to prohibit a telecommunications utility providing any service to the state from charging a fee, penalty, interest, or other charge for delinquent payment of a bill for that service. The amendment is adopted to conform with Texas Civil Statutes, Article 1446c, sec.48A. Because this amendment, as adopted, is mandated by statute, most of the comments received discussed the published amendment which provided that electric companies and cooperatives would also be prohibited from charging late payment penalties to the state. During the 30-day comment period specified in the September 25, 1992, issue of the Texas Register , comments in favor of the proposed amendment were received from the State of Texas. Comments against the proposed amendment were received from El Paso Electric Company, Southwestern Public Service Company, Lamb County Electric Cooperative, Inc., Brazos Electric Cooperative, Inc., Texas Industrial Energy Consumers, Bailey County Electric Cooperative Association, Central Power and Light Company, The Association of Texas Electric Cooperatives, Inc., Houston Light & Power Company, Midwest Electric Cooperative, Inc., and Karnes Electric Cooperative, Inc. Comments offering an alternative to the proposal were received from the Comptroller. Comments containing information regarding the late payment of electric bills were received from Johnson County Electric Cooperative, DeWitt County Electric Cooperative, Inc., Lea County Electric Cooperative, Inc., Rusk County Cooperative, Inc., New Era Electric Cooperative, Inc., Deep East Texas Electric Cooperative, Inc., Coleman County Electric Cooperative, Fort Belknap Electric Cooperative, Lighthouse Electric Cooperative, Inc., Medina Electric Cooperative, Inc., and Navarro County Electric Cooperative, Inc. The United States Marine Corps filed comments requesting that the amendment include federal agencies as well as state agencies. The State of Texas makes several arguments why state agencies should be exempt from late payment penalties by both telecommunications and electric utilities. It states that the purpose of late payment penalties is to encourage prompt payment of bills. The State believes that this purpose makes no sense with regard to the State of Texas because the State may expend appropriated funds only on a warrant drawn by the Comptroller pursuant to Texas Civil Statutes, Article 6252-31, sec.2 (Vernon Supplement 1992). However, the Comptroller of Public Accounts commented that the average time for processing utility payments is 72 hours, including weekends and holidays. In addition, Texas Electric Cooperatives, Inc. (TEC) pointed out that if the statutory payment process was the true obstacle to on-time payment, then all state agency bills would be late. That is not the case. In fact, TEC surveyed its members and found that 28% of the state agency accounts regularly pay on time. The Comptroller indicated that it is the internal procedures of other agencies that prevents bills from being paid on time. To improve the payment process, the Comptroller suggests the expanded use of direct deposits and average monthly billings. In addition, the Uniform Statewide Accounting System is being developed and should be implemented in September of 1993. The State of Texas also makes the argument that state agencies should not be treated inconsistently with regard to whether it is telephone or electric utility service at issue. It is the State's position that neither electric nor telephone utilities should be permitted to charge a late payment penalty to the state because Public Utility Regulatory Act, (PURA) sec.48A prohibits telecommunications utilities from charging a late payment penalty to state agencies. The State believes it is discriminatory for electric utilities to be allowed to impose such penalties, while telecommunications utilities can not. The Commission disagrees. By specifying that telecommunications utilities may not impose a late charge, the Legislature intentionally excluded electric utilities from such a prohibition. The State correctly states that the Commission has a duty to insure that every public utility rate shall be just and reasonable and that rates shall not be unreasonably preferential, prejudicial, or discriminatory, but shall be sufficient, equitable, and consistent in application to each class of consumers, PURA sec.38 and sec.45. However, the State misstates the impact of these provisions by characterizing the statutory difference in treatment by telephone and electric utilities as being unreasonably preferential, prejudicial, and discriminatory to state agencies. It is the Commission's position that there shall be no unreasonable difference as to rates or service between classes of service, unless otherwise mandated by statute. Thus, the State shall be treated in the same manner as other commercial customers. All electric utility customers shall be treated consistently and all telephone utility customers shall be treated consistently, with one statutory exception. The State of Texas should be exempt from late payment penalties charged by telecommunications utilities, as mandated by PURA, sec.48A. The State of Texas commented that the penalty amounts and due dates are not consistent among utilities, and that the penalty amounts are not related to direct costs incurred as a result of late payment. This rulemaking concerns exemption of the State from paying late payment penalties, not the amounts of such penalties or the due dates. Commission rules specify a maximum penalty amount and billing due dates. The State does not complain that these rules are being violated. The State of Texas proposes that sec.23.45 be amended to conform with the due dates specified in the Prompt Payment Act, Texas Civil Statutes Article 601f. The Commission does not find this request persuasive. The Prompt Payment Act does not apply to payments made by a governmental entity in the event the terms of a contract specify other times and methods of payment or methods of resolving disputes or interest owed on delinquent payments. Docket Number 6200 recognized Commission-approved utility tariffs as the type of contracts included in this exception. Thus, the Commission denies the State of Texas' proposal. Comments against the proposed rule stated that the State should not receive preferential treatment over other customers who likewise may find it difficult to pay their bills on time. The commenters believe it is unfair for other customers to bear the costs so that the State can avoid paying a penalty for late payment. TEC states that it is unjustified to single out state agencies from all other commercial consumers for special treatment regarding the delinquent payment penalty. The Commission agrees that all classes of customers should be treated equally, except as provided by statute. In its survey of its members, TEC noted that only four of the 39 cooperatives attempted to impose the delinquent payment penalty. According to TEC, many electric cooperatives have chosen not to assess state agencies for delinquent payment penalties because the state agencies usually refuse to pay. However, TEC believes that if the practice of imposing late payment penalties is abandoned, then delinquent payments will be encouraged. TEC states that a total of less than $2,000 was paid by the state agencies to the 39 cooperatives for delinquent payment penalties in the past 12 months. The State estimates that the late payment penalty issue for electric utilities involves approximately $500,000 to $1 million based on late payment penalties incurred in the Bluebonnet Electric Cooperative service area. Two commenters expressed concern that delinquent payments can increase the operating capital needs of the electric cooperative because it may have to borrow capital on a short-term basis in order to ensure an adequate cash flow. TEC asserts that the situation for electric distribution cooperatives is unique in that they have a large bill for purchased power that must be paid each month. Timely payment by the large customers is necessary to prevent serious strain on the cash flow of cooperatives. The Commission recognizes the importance of timely payment, and encourages all customers to promptly pay their bills. Of the 11 commenters which filed information concerning the application of late payment penalties to state agencies, only one attempted to impose the late payment penalty to a state agency. As of the date of comment, the State had not paid the penalty. The amendment as adopted specifies that a telecommunications utility providing any service to the state may not charge a fee, penalty, interest, or other charge for delinquent payment of a bill for that service. The published version would have exempted the state from paying late penalties to both electric and telecommunications utilities. The amendment is adopted under Texas Civil Statutes, Article 1446c, sec.16, which provide the Public Utility Commission of Texas with the authority to make and enforce rules reasonably required in the exercise of its powers and jurisdiction. sec.23.45. Billing. (a) (No change.) (b) Penalty on delinquent bills for retail service. A one-time penalty not to exceed 5.0% may be made on delinquent commercial or industrial bills; however, no such penalty shall apply to residential bills under this section. A telecommunications utility providing any service to the state, including service to an agency in any branch of government, shall not assess a fee, penalty, interest, or other charge to the state for delinquent payment of a bill for that service. The 5. 0% penalty on delinquent commercial and industrial bills may not be applied to any balance to which the penalty was applied in a previous billing. (c)-(n) (No change.) This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 11, 1993. TRD-9320232 John M. Renfrow Secretary of the Commission Public Utility Commission of Texas Effective date: April 2, 1993 Proposal publication date: September 25, 1992 For further information, please call: (512) 458-0100 Part IV. Texas Department of Licensing and Regulation Chapter 60. Texas Commission of Licensing and Regulation Subchapter C. Fees 16 TAC sec.60.67 The Texas Department of Licensing and Regulation adopts an amendment to sec.60.67, concerning the auctioneer exam fee, without changes to the proposed text as published in the February 9, 1993, issue of the Texas Register (18 TexReg 799). The amendment will allow the department to recover the costs of development and administration of the auctioneer exam. The amendment will function the same. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 9100, which provide the Texas Department of Licensing and Regulation with the authority to set fees to cover the cost of administering programs regulated by the department. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 10, 1993. TRD-9320180 Jack W. Garison Executive Director Texas Department of Licensing and Regulation Effective date: April 2, 1993 Proposal publication date: February 9, 1993 For further information, please call: (512) 463-3127 Chapter 67. Auctioneers 16 TAC sec.67.83 The Texas Department of Licensing and Regulation adopts an amendment to sec.67.83, concerning the auctioneer exam fee, without changes to the proposed text as published in the February 9, 1993, issue of the Texas Register (18 TexReg 800). The amendment will allow the department to recover the costs of development and administration of the auctioneer exam. The amendment will function the same. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 8700, which provide the Texas Department of Licensing and Regulation with the authority to promulgate and enforce a code of rules to assure compliance with the Act. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 10, 1993. TRD-9320179 Jack W. Garison Executive Director Texas Department of Licensing and Regulation Effective date: April 2, 1993 Proposal publication date: February 9, 1993 For further information, please call: (512) 463-3127 TITLE 25. HEALTH SERVICES Part II. Texas Department of Mental Health and Mental Retardation Chapter 401. Client Assignment and Continuity of Services Subchapter E. Preadmission Screening and Annual Resident Review (PASARR) and Alternate Placement 25 TAC sec.sec.402.151-402.153, 402. 158-402.161 The Texas Department of Mental Health and Mental Retardation adopts amendments to sec.sec.402.151-402.153 and new sec. sec.402.158-402.161. Section 402. 153 and sec.sec.402.158-402.160 are adopted with changes to the text as proposed in the September 22, 1992, issue of the Texas Register (17 TexReg 6536). Sections 402.151-402.152 and sec.402.161 are adopted without changes and will not be republished. The repeal of existing sec.sec.401.158-402.159 is contemporaneously adopted in this issue of the Texas Register. The purpose of the amendments and new sections is to implement policies and procedures for compliance with the Alternative Disposition Plan approved by the Health Care Financing Administration (HCFA) in compliance with federal laws and regulations. Section 402.153 is revised to include definitions for the terms "basic needs," "consensus," "legally adequate consent," and "support services." Section 402.158 is revised to clarify the type of assistance the applicant/resident or legal representative may request from the mental health and mental retardation authority (MHMRA) in regard to alternate placement. In addition, the department has clarified in the section that the MHMRA must locate alternative services and place residents who need specialized services and are inappropriately placed in a nursing facility. Section 402.159 is revised to clarify the process followed in the event the resident does not have a legal representative and the IDT determines that the resident is not capable of providing legally adequate consent to alternate placement activities. Section 402.160 is revised to include additional references. Section 402.158(d)(3) is revised to specify that the case manager must submit a request for a placement waiver if requested by the resident or legal representative. Language has been added to clarify the basis on which such a waiver may be granted. In subsection (d)(5) of the same section, language is added to clarify the conditions which must be met before alternate placement may proceed without the agreement of the resident or legal representative. A public hearing was held on October 8, 1992, and testimony was received from three parents of minor nursing facility residents; Advocacy, Inc.; United Cerebral Palsy Association of Texas; Association for Retarded Citizens of Texas; and a provider in the Intermediate Care Facilities for the Mentally Retarded Program. Written comments were received from the Texas Council Risk Management Fund, a private physician, United Cerebral Palsy Association, two community mental health and mental retardation centers, San Antonio Alliance for the Mentally Ill, and Advocacy, Inc. One commenter suggested that the subchapter include a provision requiring compliance with Titles II and IV of the Americans with Disabilities Act. The department responds that the federal legislation requires compliance and that it would be redundant to include such a provision. Situations in which there is non-compliance can be brought to the attention of the department's OBRA PASARR Determination Office. Several commenters stated that the rules reflect a lack of emphasis on input from the personal physician of the nursing facility resident or applicant. The department responds that the issue is beyond the scope of this subchapter since the assessment process is regulated by the Texas Department of Health (TDH). However, the department notes it has worked with TDH which has oversight over the assessment process, to increase input from personal physicians in the assessment and determination processes through modifications of agency procedures and the assessment instrument. A commenter had questions regarding how and to what degree the Texas Education Agency (TEA) was involved in the provision of services to school-age residents of nursing facilities. The department replies that the issue is discussed in the OBRA PASARR Determination Program Policy and Procedure Manual for Specialized Services and Alternate Placement. TXMHMR and TEA have integrated the individualized education plan and the specialized services plan to ensure there is no duplication of services. Several commenters noted that there is no acknowledgement in the proposal of differences between the pediatric and geriatric populations served by nursing facilities. The department responds that federal law and Medicaid regulations prohibit discrimination in assessment process or in the services provided based on differences in age. Information about individual's particular needs is gathered in assessment process and is considered in the services delivered. The assessment instrument has been revised to increase the amount of medical information that is collected. Several commenters complained that the assessment and determination processes fail to place adequate emphasis on parent involvement. The department responds that TDH has modified the assessment procedures to notify parents in advance of PASARR assessment and to solicit their participation in the assessment process. The revisions are already in effect. The department further notes that consideration is given by TXMHMR to information provided by parents in the determination process. A commenter questioned why the 30-month provision is not included in proposal. The department responds that discussion of the 30-month provision is included in rules of the Texas Department of Human Services (TDHS), the state's Medicaid agency, which is responsible for determining Medicaid eligibility. Several commenters questioned the proposal's lack of detail regarding the qualifications of MHMRA case managers responsible for nursing facility residents who are receiving specialized services or who have been determined to require alternate placement. The department responds that qualifications for case managers are described in detail in the department's operating instruction (OI 401-2 related to Case Management), a document which deals with internal procedures of the agency. Language has been added in sec.402.159(e) to require MHMRA staff to comply with the operating instruction, which includes a description of educational requirements and other qualifications, including training, for case managers. Several commenters charged that the provision requiring only three alternatives to be offered to residents recommended for alternate placement is unfair. The department responds that this issue has been debated by an inclusive OBRA/PASARR Task Force comprising representatives of parent and consumer organizations, advocacy organizations, MHMRAs, nursing facility industry, and four state agencies: Texas Department on Aging, TDH, TDHS, and TXMHMR as well as physicians. The consensus of the task force was that in order for the state to comply with the federal OBRA/PASARR legislation, which requires some people to be alternately placed from nursing facilities, there must be some standard regarding the number of placement options that would be offered and the time span in which residents had to select one of those options. One commenter suggested that nursing facility residents with a related condition would not be served by MHMRAs because such people are not included as a category in TXMHMR's "priority population." The department responds that nursing facility residents with a related condition will receive identified services from MHMRAs without being included in the department's "priority population." Situations in which assistance is denied to persons with a related condition can be brought to the attention of the department's OBRA PASARR Determination Office. A commenter questioned whether the state was making any progress in developing alternate settings. The department responds that available resources are being used to the fullest extent to encourage the private and public sector to develop alternate settings for nursing facility residents required to be alternately placed. The state has received approval from HCFA to establish an OBRA Targeted Waiver Program to provide residential, treatment, and training services to identified nursing facility residents with mental retardation or related conditions. Providers are currently being certified in this program and former nursing facility residents are being enrolled. Federal OBRA legislation requires that this program be available only for former nursing facility residents; it is designated as the primary alternate placement resource for this population. Increases in the intermediate care facility for mental retardation (ICF/MR) program have been requested and approved to provide another placement resource for identified nursing facility residents. The class waiver program is also being utilized to provide residential treatment and training program to people with related conditions. The OBRA budget contains funding to provide residential and mental health services to former nursing facility residents with a mental illness. However, the program has not been funded the program at the level of need by the legislature. Several commenters asked that the criteria for appropriate placements be specified. The department responds that the criteria is specified in sec.402. 158(d)(2), but that a definition of "basic needs" has been added for clarification at the request of another commenter. The department further notes that the language of that provision was a consensus of the OBRA PASARR Task Force mentioned earlier. A definition of "support services" also is added because the term is utilized in the definition of basic needs. Several commenters requested that a provision be added ensuring that residents who elect to be alternately placed but who are not required to be are given a complete explanation of the full consequences, i.e., loss of right to specialized services. The department responds that language in sec.402.159(a) has been modified to clarify that all possible consequences of various placement alternatives for which resident may be eligible must be explained. In addition, language has been added to require that copies of the case manager's written monthly reports to the nursing facility must be provided to the resident or legal representative upon receipt of a written request. One commenter asked that the sections specify that communication techniques and devices necessary to enable a resident to communicate be used to assure the resident full participation in all aspects of service planning, not just alternate placement. The department agrees and has modified the language as requested in sec.402.159(a). One commenter requested that a resident who has been alternately placed be permitted to move from one alternate setting to another after leaving nursing facility. Another commenter requested that individuals who already have left the nursing facility should be permitted access to the OBRA Targeted Waiver Program. The department responds that HCFA has determined that former nursing facility residents may lose their eligibility for the waiver should they select another alternate setting after they initially have been placed. The department has no choice but to follow the HCFA guidelines. One commenter questioned what should happen if a resident who has been determined to require alternate placement refuses to leave nursing facility. The department responds that the nursing facility is responsible for discharging the resident, but that language has been modified in sec.402.158(d) (5) to clarify the issue. A commenter recommended that professional evaluations be obtained to ensure that a nursing facility resident can participate in making decisions. The department responds that evaluations by professionals are already included in the requirements for service provision and that this issue is the subject of current litigation and possible action by the legislature. One commenter requested that a timeframe be specified in the subchapter during which "follow-up services" are to be provided by the MHMRA case manager. The department responds that its policy and procedure manual requires the IDT to specify a timeframe for follow up based on the individual's needs. One commenter expressed concern that individuals in nursing facilities who are diagnosed as having a mental illness but who are not experiencing an acute episode will not receive specialized services. The commenter further stated that the definition of specialized services for individuals with a mental illness is vague and general when compared to the definition for individuals with mental retardation or a related condition. The commenter suggested that this was discriminatory but acknowledged that those provisions of the subchapter were not being considered for revision. The department responds that no amendments to those provisions had been proposed because the definitions are taken from federal rules. Also, the nursing facility and not the department is responsible for providing mental health services to residents. A commenter expressed concern that few appropriate alternatives in the community exist for persons with a mental illness. The commenter recommended state funding for personal care homes, Medicaid waivers and matching funds for persons with a mental illness, and the designation by the department of residential services as a core service. The department responds that the recommendations are beyond the scope of this subchapter, but noted that funds for residential and mental health services have been established for former nursing facility residents. A commenter requested clarification concerning who is to provide written notification to nursing facility residents identified as needing alternate placement that their Medicaid benefits may be terminated. The commenter further requested that the MHMRA case manager be required to ensure receipt of the notification. The department agrees and has revised the appropriate provisions in sec.402.158(d)(1). One commenter suggested that nursing facility residents may lose some placement options if they leave the nursing facility. The department responds that sec.402.159(a) requires the case manager to identify all possible consequences of various placement alternatives to all nursing facility residents seeking alternate placement. Another commenter suggested that "communication accessibility" be defined and several commenters suggested that each section of the subchapter include statements requiring that communication techniques and devices be used with nursing facility residents. The department responds that neither recommendation is necessary since a statement included in sec.402.159(a) has been modified to clarify that appropriate communication techniques and devices should be used to facilitate residents' participation in all aspects of service planning. Another commenter requested clarification concerning which discussions with the resident or legal representative are to be documented by the case manager. The department agrees and has revised sec.402.159(a) to indicate that discussions regarding placement preferences are to be documented. Two commenters recommended clarification concerning the right of the nursing facility resident to refuse to allow an interdisciplinary team (IDT) member to attend meetings at which alternate placement is discussed. The department has incorporated this provision in sec.402.159(b). Two commenters requested clarification regarding the responsibilities of the MHMRA for adult nursing facility residents who allegedly may be incompetent. The department responds that sec.402.159(c) has been revised to describe a process by which the IDT is to determine by consensus whether or not a resident who has no legal representative is capable of providing legally adequate consent to alternate placement activities. If the consensus is that the resident cannot provide such consent, the case manager must provide information to the resident's family or an interested party concerning how to obtain a legal guardian. Alternate placement activities are to continue when a guardian is named. Definitions of consensus and legally adequate consent have been added to sec.402.153. Two commenters requested that certain detailed procedures now included in the department's policy and procedures manual be incorporated into the subchapter. The department responds that a provision has been added in sec.402. 159 requiring MHMRAs to comply with all provisions described in manual. The manual is included as a reference in sec.402.159. Two commenters provided draft documents containing detailed procedures and requested their inclusion in the subchapter. The department responds that applicable sections of the draft procedures were previously incorporated; most provisions in the draft documents are contrary to Medicaid regulations and, therefore, may not be incorporated into the subchapter. Several commenters submitted remarks concerning sections in the current subchapter for which amendments were not proposed. One commenter recommended that specialized services for people with mental illness be modified to also include people with chronic mental illness and that all people with a mental illness diagnosis be assessed. These recommendations exceed the requirements of the Omnibus Reconciliation Act of 1987 and proposed regulations from the Health Care Financing Administration. This recommendation would also duplicate services to be provided by the nursing facility as required by the applicable certification and licensure regulations. Two commenters suggested that the eligibility criteria for the Home and Community-based Services Program-OBRA (HCS-O) be modified to allow a former nursing facility resident who is alternately placed into another program to enter the HCS-O Program if they later choose to do so. This issue has been raised with the Health Care Financing Administration but no response has been received to date. The amendments and new sections are adopted under the Health and Safety Code, Title 7, sec.532.015, which provides the Texas Board of Mental Health and Mental Retardation with rulemaking powers. sec.402.153. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. Advanced years -A chronological age of greater than 64 years of age or a chronological age of greater than 50 years along with a chronic or acute medical condition that is likely to significantly diminish life expectancy as certified by a physician. Basic needs-The provision or acquisition of adequate food, clothing, safe and sanitary shelter, support services, and medical services to sustain life. Case manager-Staff member designated by the MHMRA to ensure that a person receives needed resources and services. Comatose state -A condition of profound unconsciousness caused by disease, trauma, or toxic substance. Consensus-A negotiated agreement that all IDT members can and will support in implementation. The negotiation process involves the open discussion of ideas with all parties encouraged to express opinions. Convalescent care -Care provided after a person's release from an acute care hospital that is part of a medically prescribed period of recovery which does not exceed 120 days. Dementia-A degenerative disease of the central nervous system as diagnosed by a physician in accordance with the International Classification of Diseases, 9th Revision, Clinical Modification (ICD-9-CM). Function at the brain stem level-A significantly impaired state of consciousness characterized by normal respirations but minimal (mostly reflexive) response to environmental stimuli as certified by a physician. Legally adequate consent-As determined by the IDT, the ability of a nursing facility resident to give consent when each of the following conditions has been met: (A) legal capacity: the individual giving the consent is of the minimum legal age and has not been adjudicated incompetent to manage personal affairs by an appropriate court of law; (B) comprehension of information: the resident has been informed of and comprehends the nature, purpose, consequences, risks, and benefits of accepting or rejecting the specific alternative placement; and (C) voluntariness: the consent has been given voluntarily and free from coercion and undue influence. A determination that the resident is inappropriately placed in a nursing facility and must be alternately placed as required by Federal OBRA PASARR legislation and HCFA regulations does not constitute coercion or undue influence. Legal representative -The parent of a minor or legal guardian of the applicant to a nursing facility or the resident of a nursing facility.) Mental health and mental retardation authority (MHMRA)-A local services provider selected by the Texas Department of Mental Health and Mental Retardation to plan, facilitate, coordinate, or provide services in a local services area to persons with mental illness, mental retardation, and/or a related condition; this includes designated providers and departmental facility community services programs. Mental illness -A current primary or secondary diagnosis of mental disorder (as defined in the Diagnostic and Statistical Manual of Mental Disorders, 3rd Edition, Revised (DSM-III-R) and limited to schizophrenic, paranoid, major affective, schizoaffective disorder, and atypical psychosis) existing in the absence of a primary diagnosis of dementia (including Alzheimer's disease or a related disorder). Mental retardation -A diagnosis of mental retardation (mild, moderate, severe, or profound) as described in Classification in Mental Retardation, American Association on Mental Deficiency, 1983 Revision, i.e., mental retardation is significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the developmental period. Nursing facility -A Texas Medicaid-certified institution providing nursing services. It does not include a non-Medicaid certified facility, or non-Medicaid certified distinct part of a facility, or a facility certified as an intermediate care facility for the mentally retarded or for people with related conditions. Preadmission Screening and Annual Resident Review (PASARR) -The process of evaluating, reviewing, and establishing a person's need for nursing facility services in contrast to other services and for specialized services for mental illness or for mental retardation and/or a related condition. Related condition -A severe, chronic disability as defined in 42 Code of Federal Regulations sec.43.1009, that: (A) is attributable to: (i) cerebral palsy or epilepsy; or (ii) any other condition including autism, but excluding mental illness, found to be closely related to mental retardation because this condition results in impairment of general intellectual functioning or adaptive behavior similar to that of persons with mental retardation, and requires treatment or services similar to those required for these persons; (B) is manifested before the person reaches age 22; (C) is likely to continue indefinitely; and (D) results in substantial functional limitations in three or more of the following areas of major life activity: (i) self-care; (ii) understanding and use of language; (iii) learning; (iv) mobility; (v) self-direction; or (vi) capacity for independent living. Responsible party -A person as defined in rules of the Texas Department of Human Services (TDHS) in 40 TAC sec.19.101 (relating to Definitions for Nursing Facility Standards). Specialized services - (A) For individuals with mental illness, the implementation of an individualized plan of care developed under and supervised by a physician or other qualified mental health professionals that prescribes specific therapies and activities for a person who is experiencing an acute episode of severe mental illness which necessitates supervision by trained mental health personnel. (B) For individuals with mental retardation and/or a related condition, the implementation of an aggressive, continuous, and individualized program of specialized and generic training, treatment, health services, and related services that is directed toward the behaviors necessary for the person to function with as much self-determination and independence as possible and the prevention or deceleration of regression or loss of current optimal functional status. It does not include services to maintain generally independent people who are able to function with little supervision or in the absence of a continuous program of specialized services. Substantial risk of serious harm to self or others-As determined by a court of law, a condition demonstrated either by a person's behavior or by evidence of severe emotional distress and deterioration in mental condition to the extent that the person cannot remain at liberty. Support services -Services which may include social, psychological, habilitative, rehabilitative, or other assistance appropriate to the person's needs as determined by the IDT. Terminal illness -As documented by a physician, a condition that results in a life expectancy of six months or less and requires continuous nursing care and/or medical supervision and treatment to address the person's physical condition. Ventilator dependent -Reliance upon a respirator or respiratory ventilator as a life support system to assist with breathing because of a respiratory condition. sec.402.158. Roles of Nursing Facility and MHMRA in Seeking Alternate Placement for Applicants and Residents. (a) Applicants denied nursing facility admission as determined by PASARR. (1) The applicant or legal representative may request that the MHMRA provide assistance to the applicant or legal representative in locating and moving to a setting other than a nursing facility. (2) The MHMRA shall provide the same placement assistance to the applicant as it would to any other person seeking such services. (b) Appropriately placed nursing facility residents needing specialized services as determined by PASARR. (1) The resident or legal representative may request that the MHMRA provide assistance to the resident or legal representative in locating and moving to a setting other than a nursing facility. (2) The MHMRA shall provide the same placement assistance to the resident as it would to any other person seeking such services. (3) If alternate placement is requested, then the MHMRA case manager, in consultation with the resident or legal representative, may facilitate location of alternative services and placement of the resident in a setting other than a nursing facility. (c) Inappropriately placed nursing facility residents needing specialized services who can choose placement as determined by PASARR. (1) The resident or legal representative may request the MHMRA to assist the individual in locating and moving to a setting other than a nursing facility. (2) If alternate placement is requested, the MHMRA case manager, in consultation with the resident or legal representative, must locate alternative services and place the individual in a setting other than a nursing facility. (d) Inappropriately placed nursing facility residents needing specialized services who are required to be alternately placed as determined by PASARR. (1) The nursing facility resident shall be notified in writing by TXMHMR and TDHS that Medicaid benefits may be terminated six months from the date of the notification in accordance with 40 TAC sec.19.604(f)(7) (relating to OBRA PASARR Alternate Placement). The MHMRA case manager must ensure receipt of the letter and explain the consequences upon the resident's continued residence in a nursing facility to the resident or legal representative (as appropriate). (2) Prior to termination of Medicaid benefits, the MHMRA case manager must present to the resident or legal representative up to three specific placement alternatives appropriate to the resident's basic needs, overall functioning, diagnosis(es), and for which the resident may be eligible. The MHMRA case manager must document all alternative resources and services presented, as well as, if applicable, the basis for refusal of services offered. (3) A placement waiver for six months may be requested by the MHMRA case manager from the OBRA PASARR Determination Program Office based upon the unavailability of specific alternatives, the inability of specific alternatives to meet the resident's basic needs, or at the request of the resident or legal representative. The placement waiver may be granted based upon a review of the ability of the alternatives for which the resident may be eligible to meet the resident's basic needs, as well as requirements for treatment, training, overall functioning and geographic preference. Any resident or legal representative not in agreement with the decision may appeal the decision to the TXMHMR OBRA PASARR Determination Program Office to receive a TDHS fair hearing according to 40 TAC Chapter 79, Subchapters L, M, and N (relating to Fair Hearings, Appeals Processes, and Hearing Procedures). (4) If the resident or legal representative selects a placement, then the MHMRA case manager must assist the resident in moving. (5) If the resident or legal representative refuses the three placement alternatives described in paragraph (2) of this subsection, all waiver periods granted have been exhausted, and/or the fair hearing results sustain the decision that an appropriate alternate placement had been offered, then the MHMRA case manager must assist the resident in locating a placement in an alternative setting that meets the resident's overall treatment and training needs. The resident's or legal representative's agreement is not required for the alternate placement. The resident must be discharged in accordance with 40 TAC sec.19.302 (relating to Transfer and Discharge). After the resident or legal representative has refused three placement alternatives and/or the fair hearing results sustain the decision that an appropriate alternate placement has been offered, the resident or legal representative may not appeal the subsequent alternate placement to the TXMHMR OBRA PASARR Determination Program Office to receive TDHS's fair hearing according to 40 TAC Chapter 79, Subchapters L, M, and N. sec.402.159. Services and Documentation Provided by the MHMRA and Nursing Facility for Nursing Facility Residents Seeking Alternate Placement. (a) The MHMRA case manager must document all discussions to obtain placement preferences with the resident or legal representative, as appropriate, in the resident's record and provide a monthly written report to the nursing facility as described in 40 TAC sec.19.604(f)(4) (relating to Preadmission Screening and Annual Resident Review). Upon receipt of a written request from the resident or legal representative, the case manager shall provide a copy of the monthly written report to the resident or legal representative. The copies shall be provided monthly until and unless the request is withdrawn in writing. The case manager shall identify specific placement resources, treatment services, and the possible consequences of various placement alternatives for which the resident may be eligible. Communication techniques and devices should be utilized, as appropriate, to facilitate the resident's participation in all aspects of service planning. (b) The MHMRA case manager shall invite the resident, legal representative(s), responsible party, family members, nursing facility representative(s), and attending physician to participate in interdisciplinary team meetings(s) to discuss alternate placement resources and develop a discharge plan outlining team member responsibilities for placement. The resident or legal representative(s) may identify individuals to be invited to the meeting and indicate that certain members may not attend. However, written information will be received and reviewed from all interdisciplinary team members. (c) The MHMRA case manager shall obtain written agreement for the specific placement from the resident or legal representative(s), except as noted in sec.402.158(d)(5) of this title (relating to Roles of Nursing Facility and MHMRA in Seeking Alternate Placement for Applicants and Residents). If the resident does not have a legal representative and the interdisciplinary team (IDT), as defined in 40 TAC sec.19.604(e)(3) (relating to Specialized Services and Alternate Placement) determines by consensus that the resident is not capable of providing legally adequate consent to alternate placement activities, then the IDT shall direct the case manager to provide information to the family or other interested parties, as appropriate, regarding processes for securing a legal guardian. When the issue of legally adequate consent has been resolved and, if necessary, a legal guardian has been named, alternate placement activities shall continue. (d) The MHMRA case manager must document implementation of the nursing facility resident's discharge plan in the resident's record and provide copies to the nursing facility. (e) Staff of the MHMRA must comply with: (1) TXMHMR OBRA PASARR Determination Program Policy and Procedure Manual for Specialized Services and Alternate Placement; and (2) TXMHMR Operating Instruction (OI) 401-2 concerning Case Management. sec.402.160. References. Reference is made in this subchapter to the following laws and standards: (1) Omnibus Budget Reconciliation Act of 1987, Public Law 100-203, Title IV, Subtitle C, Nursing Home Reform, Part C, Medicaid; (2) Omnibus Budget Reconciliation Act of 1990, Public Law 101-508, Title IV, Part E, sec.4801b; (3) 42 Code of Federal Regulations sec.43.1009; (4) International Classification of Diseases, 9th Revision, Clinical Modification (ICD-9-CM); (5) Diagnostic and Statistical Manual of Mental Disorders, 3rd Edition (DSM- III-R); (6) Classification in Mental Retardation, American Association on Mental Deficiency, 1983 Revision; (7) 40 TAC sec.sec.19. 101, 19.218, 19.219, and 19.604 (rules of the Texas Department of Human Services); (8) TXMHMR Operating Instruction (OI) 401-2 concerning Case Management; (9) TXMHMR OBRA PASARR Determination Program Policy and Procedure Manual for Specialized Services and Alternate Placement. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 15, 1993. TRD-9320249 Ann K. Utley Chairman Texas Department of Mental Health and Mental Retardation Effective date: April 5, 1993 Proposal publication date: September 22, 1992 For further information, please call: (512) 465-4670 Subchapter E. Determination Criteria for Preadmission Screening and Annual Resident Review (PASARR) 25 TAC sec.402.158, sec.402.159 The Texas Department of Mental Health and Mental Retardation (TXMHMR) adopts the repeal of sec.401.158, sec.402.159, concerning references and distribution, in Chapter 402, Subchapter E concerning determination criteria for preadmission screening and annual resident review (PASARR), without changes to the proposed text as published in the September 22, 1992, issue of the Texas Register. The information in the sections is contemporaneously adopted, with revisions, in this issue of the Texas Register as sec.sec.402.160-402.161. The repeal allows for the reorganization of sections in the subchapter and permits the inclusion of provisions related to alternate placement of nursing facility residents identified through PASARR as being inappropriately placed in a nursing facility and as needing specialized services for mental illness or for mental retardation and/or a related condition. No comments were received regarding adoption of the repeals. The repeals are adopted under Texas Civil Statutes, Article 5547-202, which provide the Texas Board of Mental Health and Mental Retardation with rulemaking powers. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 15, 1993. TRD-9320254 Ann K. Utley Chairman Texas Department of Mental Health and Mental Retardation Effective date: April 5, 1993 Proposal publication date: September 22, 1992 For further information, please call: (512) 465-4670 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part I. Texas Department of Human Services Chapter 15. Medicaid Eligibility Subchapter B. Medicare and Third-party Resources The Texas Department of Human Services (DHS) adopts amendments to sec.15. 201 and sec.15.305. The amendment to sec.15.305 is adopted with changes to the proposed text as published in the February 5, 1993, issue of the Texas Register (18 TexReg 736). The amendment to sec.15.201 is adopted without changes to the proposed text, and will not be republished. The justification for the amendment to sec.15.201 is to clarify the income limit for coverage of Medicare premiums, deductibles, and coinsurance charges paid by DHS for clients who have income equal to or less than 100% of the federal poverty level. The justification for the amendment to sec.15.305 is to delete a rule concerning three months prior Medicaid coverage that is located in another section in greater detail. The amendments will function by expanding the eligibility requirements for the Qualified Medicare Beneficiary program to allow more individuals to qualify for that program and by removing a duplicate rule. No comments were received regarding adoption of the amendments. DHS, however, is adopting the amendment to sec.15.305 with a minor editorial change to correct the reference made to another subsection. In sec.15.305(i), DHS has changed the reference made to subsection (i) to that of subsection (h) to clarify the location of referenced program requirements. 40 TAC sec.15.201 amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs and under Texas Civil Statutes, Article 4413 (502), sec.16, which provides the Health and Human Services Commission with the authority to administer federal medical assistance funds. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 15, 1993. TRD-9320251 Nancy Murphy Agency Liaison, Policy and Document Support Texas Department of Human Services Effective date: May 1, 1993 Proposal publication date: February 5, 1993 For further information, please call: (512) 450-3765 Subchapter C. Basic Program Requirements 40 TAC sec.15.305 The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs and under Texas Civil Statutes, Article 4413 (502), sec.16, which provides the Health and Human Services Commission with the authority to administer federal medical assistance funds. sec.15.305. Eligibility Requirements for the Aged, Blind, or Disabled. (a)-(c) (No change.) (d) As a condition of eligibility, the client must furnish the department with a Social Security number (SSN). If the client is married, he must also provide his spouse's Social Security number. Failure of the client or his representative to follow through and secure an SSN is grounds for denial at the first periodic review. (e) To be eligible, a client must file: (1)-(2) (No change.) (f) According to Public Law 96-272 a client who draws VA pension benefits grandfathered from December 31, 1978, is not required to apply for aid and attendance or any additional benefits under the 1979 VA pension plan. Clients who have changed to the 1979 pension plan or who initially obtain entitlement to a VA pension after January 1, 1979, are required to apply for aid and attendance or other potentially available benefits as a condition of eligibility. (g) A disabled individual under 65 must accept vocational rehabilitation services available to him. If he refuses to accept these services without good cause, he is ineligible for Medicaid benefits. This provision does not apply to clients whose eligibility is because of blindness. (h) An SSI client eligible because of disability and who is medically determined to be a drug addict or alcoholic must: (1)-(2) (No change.) (i) If the client does not comply with the requirements in subsection (h) of this section, he is ineligible for benefits. This provision does not apply to SSI clients whose eligibility is because of age or blindness. (j) According to Public Law 101-508, a client is not required to accept, as a condition of eligibility, payments that a state may make as compensation to victims of crime. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 15, 1993. TRD-9320250 Nancy Murphy Agency Liaison, Policy and Document Support Texas Department of Human Services Effective date: May 1, 1993 Proposal publication date: February 5, 1993 For further information, please call: (512) 450-3765 Part IX. Texas Department on Aging Chapter 251. Support Documents Statutes and Regulations 40 TAC sec.251.7 The Texas Department on Aging adopts the repeal of 40 TAC sec.251.7 concerning carryover policy, without changes to the proposed text as published in the January 1, 1993, issue of the Texas Register (18 TexReg 37). Section 251.7 has been revised in its entirety and resubmitted for proposed adoption under this chapter. Without adoption of this repeal, duplication of rules will occur. No comments were received regarding adoption of the repeal. The repeal is adopted under the Human Resources Code, sec.101, which provides the Texas Department on Aging with the authority to promulgate rules governing the operation of the department. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 11, 1993. TRD-9320121 Mary Sapp Executive Director Texas Department on Aging Effective date: October 1, 1993 Proposal publication date: January 1, 1993 For further information, please call: (512) 444-2727 The Texas Department on Aging adopts new sec.251.7 concerning carryover policies to be followed by the Department regarding unexpended funds awarded to area agencies on aging, with changes to the proposed text as published in the January 1, 1993, issue of the Texas Register (18 TexReg 37). The new section has been revised in its entirety and provides procedures to be followed regarding unexpended funds awarded to area agencies on aging. It implements new methods for determining the validity of carryover for each area agency and establishes a new process for distributing funds identified in the carryover process. The new section will function to improved understanding of the processes used by the Department to accomplish the carryover process. During the public comment period, comments were received form the Texas Association of Area Agencies on Aging (T4A), Houston Galveston Area Agency on Aging, South Plains Association of Governments, Region VI, Administration on Aging (DHHS), and the Operations Committee of the Texas Board on Aging. Comment: One commenter recommended deletion of all references to "5.0%" in Section (d) and insert "6.0%". The commenter also commented that, "it is unclear how an AAA could qualify for the additional 1.0% carryover-moving from 5.0%- 6.0%. Recommend changing all occurrences of 5.0% to 6.0% to eliminate this disparity." Response: The purpose of the two rates was clarified to the satisfaction of all persons in attendance at the public hearing. Therefore, no change to the standard, as published, was approved by the Board on Aging. One commenter recommended deletion from (d): "In no case shall the total carryover exceed 5.0% of total Title III funding." Response: Deletion was not appropriate after the explanation of the difference in the two rates. The phrase could have been removed had only one rate been used. Therefore, no change to the standard, as published, was recommended or made by the Board on Aging. Comment: One commenter stated that subsection (e) would penalize the elderly, since most carryover is service money. Response: While it is true that most carryover funds are derived from non- expenditure of service funds, it is the responsibility of the area agency to properly obligate those service funds to minimize carryover. Carryover funds derived from a particular service provider may indicate that the area agency has not adequately distributed funds within the planning and service area. Contrary to the comment, forcing the area agency to better analyze its funds allocations may cause improved service delivery to the elderly within each current year. Therefore, no change to the standards, as published, was recommended or made by the Board on Aging. Comment: One commenter expressed concern regarding the obligation authority related to the carryover pool. Response: The carryover pool is actually generated from current year funding. All prior year carryover is reobligated back to the source agency. Therefore, because there is no problem with obligation authority of funds in the pool, no change to the standard, as published, was made by the Board on Aging. Comment: In addition to the public comment, the Board on Aging and the Department staff recommended that some minor changes be made to wording of the adopted text to improved clarity. Response: Minor changes to the text have been incorporated as suggested. The repeal is adopted under the Human Resources Code, sec.101, which provides the Texas Department on Aging with the authority to promulgate rules governing the operation of the department. sec.251.7. Carryover policy -Older Americans Act, Title III. (a) Background and purpose. The Texas Department on Aging has revised the policy regarding the carryover of unexpended funds awarded in the prior fiscal year. The new policy establishes the criteria under which a subgrantee agency may request authorization to expend Older Americans Act, Title III, funds during the fiscal year immediately following the fiscal year for which the funds were initially awarded. (b) Carryover. Carryover is defined as any funds awarded for which no goods or services have been received, financial obligation encumbered, or services performed by employees, contractors, subgrantees, or other payees. (c) Notification of grant award. The notification of grant award issued by the Department authorizes the use of Title III funds for the specific federal fiscal year during which the award is issued (October 1-September 30). At the end of each federal fiscal year, grantees are provided a 90-day closeout period to determine the balance of unexpended funds. At the end of the closeout period, an end-of-year report is completed indicating the unexpended balance. Funds contracted, obligated, or awarded beyond the Department's grant period are considered unexpended. Accrued expenditures would include items or services contracted or purchased within the grant period, but where delivery is not made until a subsequent period. Conclusion of the obligation, including receipt of the goods or services and full and final payment, must be not later than 15 days prior to the due date of the end-of-year report. The request for use of carryover funds shall be an integral part of the grantee's annual area plan submission or as otherwise directed by the Department. (d) Policy for approval. It is the policy of the Department to approve the carryover, with adequate justification, of up to 5.0% of funds awarded during the first three quarters of the grant period. Approval shall be based upon timely submission of adequate justification. Any funds awarded during the last quarter of the grant period will be allowed as carryover in addition to the 5.0% awarded, if any, through adequate justification. No agency will be automatically guaranteed any carryover, except for those grant awards made during the last quarter of the grant period. The allowable carryover shall be computed by determining 5.0% of all Title III funds awarded during the first three quarters of the fiscal year and adding the amount of those grant awards made during the last quarter of the grant period. An exception to this policy may be considered as a grant or contract provision for projects which cause reasonable and necessary encumbered Title III funds to remain unspent. In no case shall the total carryover exceed 6.0% of the total Title III funding. In no case shall disallowed costs be permitted as carryover. Additionally, unexpended adequate proportion and maintenance of effort funds shall not be permitted as carryover, unless the grantee has received a waiver from the requirements of adequate proportion in accordance with sec.268.7 of this title (relating to Waiver of the Requirement to Provide an Adequate Proportion of Funding for Priority Services). (e) Justification required. Adequate justification shall be defined as meeting those performance measures and financial standards outlined in the sec.255.35 of this title (relating to Staffing of Area Agency on Aging) Operations standards as established by the Department. Such standards shall be an integral part of the area plan and assurance of compliance shall be required by all grantees. (f) Funds not approved. All funds not approved for carryover shall become part of a reallocation pool. Notifications of grant award for all reallocated funds shall be issued by the Department not later than February 15 of each fiscal year. Eligibility for participation in the funds reallocation shall be limited to grantee agencies that meet the following criteria: (1) the agency did not have unexpended Title III funds in excess of 5.0% of the overall Title III funds awarded during the first three quarters of the grant period; (2) grantee agencies eligible for reallocated funds must have met all of the performance measures and financial standards outlined in the sec.255.35 of this title as established by the Department; (3) the grantee agency did not have any unresolved costs during the fiscal year related to aging funds; and (4) the grantee agency met all adequate proportion and maintenance of effort requirements or obtained waiver from adequate proportion requirements in accordance with sec.268.7 of this title. (g) Allocation formula. In accordance with the Human Resources Code, sec.101. 029(d), the Department, by rule, shall adopt a reallocation formula that includes performance as a criterion, in addition to other criteria adopted by the department. Therefore, the funds in the reallocation pool shall be distributed using the Department's published funding formula, exclusive of consideration for any service and administration bases and phase-in after removal of all grantee agencies not meeting all the performance measures as outlined in subsection (f) of this section. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 11, 1993. TRD-9320120 Mary Sapp Executive Director Texas Department on Aging Effective date: October 1, 1993 Proposal publication date: January 1, 1993 For further information, please call: (512) 444-2727