ADOPTED RULES 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 1. ADMINISTRATION PART IV. Office of the Secretary of State CHAPTER 71.Office of the Secretary of State Practice and Procedure 1 TAC sec.71.8 The Office of the Secretary of State adopts amendments to sec.71.8, concerning Fees for Copies of Open Records, without changes to the proposed text published in the December 6, 1996, issue of the Texas Register (21 TexReg 11683). The amendments are needed to keep the Secretary of State's fee schedule consistent with fee guidelines of the General Services Commission. The fees implement the provisions of Government Code, Chapter 552, with respect to the cost of providing pubic information, and the charges that state agencies may set to recover costs. No comments were received regarding adoption of the amendments. The amendments are adopted under Texas Government Code, sec.552.261 which provides the Office of the Secretary of State with the authority to adopt rules which specify the charges for copies of public records and to establish charges equal to the full cost of providing the copy. 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. Issued in Austin, Texas, on January 7, 1997. TRD-9700301 Clark Kent Ervin Assistance Secretary of State Office of the Secretary of State Effective date: January 29, 1997 Proposal publication date: December 6, 1996 For further information, please call: (512) 463-5586 TITLE 16. ECONOMIC REGULATION PART I. Railroad Commission of Texas CHAPTER 9.Liquefied Petroleum Gas Division SUBCHAPTER A.General Applicability and Requirements 16 TAC sec.9.31 The Railroad Commission of Texas adopts amendments to sec.9.31, relating to LP- gas regional supply emergency response, without changes to the proposed version published in the December 6, 1996, issue of the Texas Register (21 TexReg 11689). The amendments streamline the procedure previously in place in order to allow the commission to respond in a more timely manner to and to take actions that might alleviate an LP-gas regional supply emergency. The amendments eliminate the previous requirement that there be notice and hearing before the commission can determine whether there is an LP-gas regional supply emergency. Under the Administrative Procedure Act and commission rules for conducting a contested case, there must be ten days notice; opportunity to intervene and participate as a party in an evidentiary hearing; circulation of a proposal for decision with adequate time for parties to submit exceptions and replies; and deliberation and decision by the commission at an open meeting. That process does not permit the commission to respond in a timely manner to an LP-gas regional supply emergency that may be of only a few days' duration. The amendments allow the commission to receive information from those sources, among others, listed in sec.9.31(b); to determine whether there is an LP-gas regional supply emergency, and if so, the counties of its location and its likely duration; and to request that certain LP-gas loading rack operators give loading priority to transports whose cargoes are bound for the county or counties of the regional supply emergency. The commission believes that encouraging the industry voluntarily to take steps to avoid potential LP-gas shortages or to alleviate actual shortages is the best way to ensure adequate regional supplies of LP-gas for Texas consumers. The commission received no comments on the proposed amendments. The amendments is adopted under Texas Natural Resources Code, sec.113.243(c)(3), which authorizes the commission to develop conservation and distribution plans to minimize the frequency and severity of disruptions in the supply of alternative fuels. The Texas Natural Resources Code, sec.113.243(c)(3), is affected by the proposed amendments. 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. Issued in Austin, Texas, on January 2, 1997. TRD-9700207 Mary Ross McDonald Deputy General Counsel, Office of the General Counsel Railroad Commission of Texas Effective date: January 28, 1997 Proposal publication date: December 6, 1996 For further information, please call: (512) 463-7008 TITLE 25. HEALTH SERVICES PART II. Texas Department of Mental Health and Mental Retardation CHAPTER 406.ICF/MR Programs SUBCHAPTER E.Eligibility and Review 25 TAC sec.sec.406.201-406.204, sec.406.214, sec.406.216, 406.217 The Texas Department of Mental Health and Mental Retardation (TDMHMR) adopts amendments to sec.sec.406.201-406.204, 406.214, 406.216, and 406.217, of Chapter 406, Subchapter E, governing eligibility and review. Sections 406.202, 406.204, 406.214, and 406.216 are adopted with changes to the proposed text as published in the August 23, 1996, issue of the Texas Register (21 TexReg 7935-7938). Sections 406.201, 406.203, and 406.217 are adopted without changes. The adopted amendments incorporate methodology which identifies the level of service needed by an individual as determined by the Inventory for Client and Agency Planning (ICAP) assessment instrument (available for inspection by contacting the Medicaid section of TDMHMR Central Office); establish payment classifications that are consistent with the Home and Community-based Services (HCS) program; incorporate several new definitions; and improve the organization and readability of the text. Language in sec.406.202 was modified to add several new definitions and revise two definitions. The proposed language of sec.406.204(a)(2) and sec.406.204(b)(3) was deleted. Language in sec.406.204(b)(4)(B)(i), regarding persons with challenging behavior, was modified to include classifications for serious behavior. Language in sec.406.204(b)(4)(B)(ii), regarding the definition of persons eligible for the pervasive plus category, was modified to specifically state that the 1:1 coverage must be available all hours that the individual is awake. Language in sec.406.204 (b)(4)(B)(iii), regarding the eligibility for a level of need for persons with serious medical problems, was modified to specify the amount of nursing time an individual requires, rather than having a study done by the utilization review team. This specificity will ensure greater reliability by measuring staff time to provide care to the person rather than judging by the individual's medical condition. Language in sec.406.214, regarding utilization review, was modified to add new sec.406.214(e) and new sec.406.214(f) to accommodate comments by delineating provider's appeal rights in the assignment of the level of need. Oral testimony was received at the public hearing, held on September 9, 1996. Written comments were received from six respondents regarding adoption of the rule, with several commenters offering recommendations for revision. Those respondents offering comment on the rule include: Educare Community Living Corporation, Austin; New Adventures of Hope, El Paso; Concho Residential Services, Inc., San Angelo; Concept Six, Austin; State-operated Mental Retardation Facilities; and, Parent Association for the Retarded of Texas, Inc., Austin. Concerning proposed sec.406.204(b)(5)(B)(ii), one commenter stated that Items 70 and 72 cannot be scored "7", since "7" applies to aggressive behavior only. The department responds that the commenter is mistaken. The scoring described by the commenter is not used in the new instructions. Concerning proposed sec.406.204(a)(3), one commenter asked why the level-of-care system is still needed, given that the new level-of-need system is in place. The department responds that the level-of-care criteria are used to determine eligibility for programs outside the scope of TDMHMR. The department will retain the level-of-care system for eligibility purposes only. Concerning proposed sec.406.204(a)(3), one commenter asked if the level-of-care system remains in place, will providers' licenses still be limited to a certain level (e.g., a Level V home), rather than allowing for various levels of care in the same home. The department responds that the license category will not restrict providers from mixing levels of care after January 1, 1997. Concerning proposed sec.406.204(b)(4)(B)(iii), one commenter asked what type of study will be conducted to determine appropriate alterations to the payment for the individual in need of extensive medical services, and who will conduct it. The department responds that the text has been modified to eliminate the need for a study. Concerning proposed sec.406.204(b)(4)(B), one commenter stated that the department must address the issue of individuals with extensive medical needs very clearly. The commenter stated that although an individual with substantial nursing needs will generally fall into a higher need category simply because of the pervasiveness of his/her disabilities, there are exceptions. The department responds that it will continue to closely follow this issue. Concerning proposed Chapter 406, Subchapter E, in general, one commenter stated that the current proposal does not include sec.406.211 of this title, which was proposed earlier in the year. The commenter stated that the"piece-meal" revision of this subchapter makes it very difficult to review or understand this policy and provide comments. The department responds that sec.406.211 was adopted at the October 1996 meeting of the Texas MHMR Board, to ensure that the modifications to the therapeutic leave and extended therapeutic leave requirements were in place for the holiday season. Concerning proposed referenced information in general, one commenter stated that several referenced forms and documents were not included in the distribution of the proposal, which required the commenter to obtain copies of these references elsewhere in order to review and comment on the proposed amendments. The department responds that referenced forms and documents which are not germane to the proposed amendments are not routinely included in field distribution versions of proposed rules. Interested parties may obtain copies of all such forms and documents by contacting the department's Medicaid office. Concerning proposed sec.406.202, one commenter asked that the department replace language regarding an individual's "legally authorized representative" with language such as "someone legally empowered to act on his behalf." The department responds that the language is consistent with the language used in other department rules. Concerning proposed sec.406.203(a), one commenter requested that the department delete the phrase "the developmental disability of." The commenter stated that the proposed rule is for the ICF/MR program, not ICF/DD program. The department responds that the term "mental retardation' refers to a subcategory of the more broadly utilized term "developmental disabilities." Other subcategories of developmental disabilities are included in the ICF/MR program under the term "related conditions" (RC). Concerning sec.406.203(a)(1), one commenter asks why the intelligence quotient (IQ) for related conditions is fixed at an IQ of 75 and the IQ for mental retardation is set at 69. The department responds the IQ criteria for mental retardation is set in state law. A higher limit has been established for the wide range of developmental disabilities contained in the RC program. Concerning sec.406.204, this section does not show what ICF/MR/RC Level VIII is based on. The department responds that the definition of "person with related conditions" in sec.406.202 describes Level VIII. Concerning the proposal in general, one commenter stated that sec.sec.406.205- 406.208 were not included in the proposal. The department responds that sec.sec.406.205-406.208 were not amended. Concerning sec.406.216, one commenter stated that definitions for "Interdisciplinary team" (IDT) and "Qualified mental retardation professional" (QMRP) need to be added. The department responds by adding the definitions to sec.406.202. Concerning the proposed role of mental retardation authorities, one commenter stated that mental retardation authorities should not be given the role of performing utilization reviews or continued-stay reviews of level-of-care or level-of-need assignments at ICF/MR facilities. The commenter stated that a state agency should perform these functions. The department responds that the role of a mental retardation authority is not addressed in the sections. One commenter stated that the proposed four levels of need will replace the four levels of mental retardation. The commenter noted that the proposed levels of need are a more subjective system of assessment than the current system and will likely result in significantly more individuals becoming eligible for services. The department responds that the basic eligibility criteria for ICF/MR program levels of care have not been changed. Concerning the Inventory for Client and Agency Planning (ICAP), one commenter requested information concerning the validity and reliability of the instrument. The department responds that the instrument is a nationally tested psychometric assessment instrument. Validity and reliability data are published in the examiner's manual for the ICAP. Concerning sec.406.204, one commenter asked if there were differences between level-of-care and level-of-need determinations. The department responds that there is a difference between level-of-care and level-of-need. Level-of-care relates to eligibility and is determined by adaptive behavior level (ABL) and intellectual functioning. Level-of-need is a payment category. The level-of-care criteria have not been changed. Concerning proposed sec.406.204(b)(B)(i), one commenter stated that the scores mentioned pertain to frequency counts of problem behavior, with no attention to severity or intensity. The commenter noted that many of the individuals served have low frequency but high intensity problem behaviors. The department responds that the ICAP measures both frequency and intensity. Further, the Texas Department Human Services (TDHS) Form 3650 measures additional staffing needs associated with challenging behaviors. Concerning sec.406.216(a), one commenter asked if the ICAP has to be administered every six months. The department responds that the ICAP service levels must be administered annually. However, a change which involves an increase in the level-of-need score must have prior approval by TDMHMR. Concerning sec.406.216(a), one commenter asked why the ICAP has to be administered annually. The department responds that it agreed with an advisory panel recommendation that the appropriate interval for such a review is annually. One commenter asked if six hours of active treatment are required for individuals who exhibit continuous aggression. The department responds that "active treatment" is a federal term. There has been no interpretation of a required number of hours. Active treatment must be delivered whenever the consumer requires it. A definition for "active treatment" has been added. Concerning proposed sec.406.204(a)(6)(B), one commenter asked why an individual who does not respond to his environment, but needs continuous care for medical reasons, is not eligible for the ICF/MR Program. The department responds the eligibility criteria reflects the federal requirement that persons who cannot benefit from active treatment are not eligible for ICF/MR funding. Concerning sec.406.204(b), one commenter inquired about appeal procedures regarding the level-of-need assignment. The commenter expressed concern that only the individual or someone legally empowered to represent the individual could appeal the level-of-need assignment. The department responds that level-of-need appeal procedures will be addressed in modifications to sec.406.214, regarding Utilization Review, which will be proposed in the near future. Concerning proposed sec.406.204(b)(5)(B)(ii), one commenter asked whether a different level of supervision can be instituted after the level-of-need has been initially established. The department responds when the person no longer needs a continuous one-on-one staffing level, a new level-of-need should be submitted to TDMHMR by the facility. Concerning the level-of-need assessment, one commenter asked how the level-of- need assessment information will be documented. The department responds that the level-of-need will be documented on TDHS Form 3650, in Item #10 (recommended by the provider) and Item #85 (assigned by TDHS or TDMHMR). One commenter asked who will be responsible for administering the ICAP. The department responds that each provider is responsible for having trained staff assess individuals for whom it provides services. The department has provided training to facility staff regarding the administration of the ICAP Concerning the ICAP, one commenter asked whether the pervasive category equates to the TDMHMR facility funding formula. The department responds that the level-of-need is not the same as TDMHMR facility funding formulas. State schools and state-operated ICFs/MR have their own reimbursement methodology. One commenter stated that the cost of the ICAP would be prohibitively expensive for the commenter's facility. The department responds that the $103.00 cost for a single test kit includes the examiner's manual and 25 response booklets. The cost of the Compuscore disk is $185. Additional sets of 25 booklets can be obtained for $30.40 each. Small providers may choose to share costs with other small providers to keep costs low. Concerning the ICAP, one commenter stated there was not sufficient time to train staff for implementation by January 1, 1997. The department responds that although the time frame is limited, there has been an adequate period for preparation. There is no mechanism for reimbursement for persons living in non-state operated ICFs/MR who do not have a level-of-need score after January 1, 1997. Concerning sec.406.216(d), one commenter stated the time line of 10 working days for the completion of the level-of-care assessment form is less realistic than the current 20 calendar day time line. The department responds that the time line has been modified to reflect 20 working days. Concerning the rule in general, one commenter asked whether there is a duplication of the information currently reported to CARE and therefore a duplication of resources. The department responds that CARE reporting is not used for Medicaid funding. One commenter asked who will administer the ICAP and what type of training will be offered. The department responds that each provider is responsible for having trained staff assess individuals for whom it provides services. Six training sessions have been offered and related training tapes are available for purchase from the publisher of the ICAP. The amendents are adopted under the Texas Health and Safety Code, sec.532.015, which provides the Texas Mental Health and Mental Retardation Board with broad rulemaking authority, and under the provisions of Texas Government Code, sec.531.021, which provides the Texas Health and Human Services Commission with the authority to administer federal medical assistance funds. The sections affects Texas Human Resources Code, sec.sec.32.001-32.040, and Texas Government Code, Chapter 531, sec.531.021. sec.406.202.Definitions for Level-of-care and Level-of-need Criteria. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise: Active treatment-Continuous aggressive, consistent implementation of a program of habilitation, specialized and generic training, treatment, health services, and related services. The program must be directed toward: (A) the acquisition or maintenance of the behaviors necessary for the individual to function with as much self-determination and independence as possible, and (B) the prevention or deceleration of regression or loss of current optimal functional status. Active treatment does not include services to maintain generally independent individuals who are able to function with little supervision or in the absence of a continuous active treatment program. Adaptive behavior level (ABL)-The effectiveness or degree to which the individual meets the standards of personal independence and social responsibility expected of the person's age and cultural group. The assessment should be conducted with a standardized assessment instrument. Cerebral palsy-A group of disabling conditions that results from nonprogressive damage to the central nervous system which usually occurs before, during, or shortly after birth. The disability is characterized by an inability to fully control motor functions. Continued-stay review-The individual review conducted by the Texas Department of Human Services (TDHS) no later than six months following the individual's admission to an ICF/MR facility and at least every six months thereafter. The purpose of each review is to determine if the individual continues to need the care and services provided by the ICF/MR Program and if the level-of-care determination and level-of-need assignment are appropriate. The Texas Department of Human Services may determine that the individual no longer needs the care and services provided by the ICF/MR Program or that the level-of-care determination and level-of-need assignment is not appropriate. In this case, TDHS staff members make a new level-of-care determination and level-of-need assignment. Epilepsy-A paroxysmal transient disturbance of brain function that may be manifested as episodic impairment or loss of consciousness, abnormal motor phenomena, psychic or sensory disturbances, and perturbation of the autonomic nervous system. Symptoms are the result of paroxysmal disturbance of the electrical activity of the brain. ICAP service level-The ICAP service level identifies the level of services needed by an individual as determined by the Inventory for Client and Agency Planning (ICAP) assessment instrument. Interdisciplinary team (IDT)-Those individuals (professionals, paraprofessionals and non-professionals) who possess the knowledge, skills and expertise necessary to accurately identify the comprehensive array of an individual's needs and design a program which is responsive to those needs. LON-Level-of-need is the state classification system that incorporates either the actual or adjusted ICAP service level and selected items on the TDHS 3650 form. Medical care plan-A plan developed by a physician, in cooperation with licensed nursing personnel, for an individual who requires 24-hour supervision by licensed nurses. Mental retardation-Significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and originating during the developmental period. Persons with related conditions-Individuals who have a severe, chronic disability that: (A) is attributed to: (i) cerebral palsy or epilepsy; or (ii) any other condition, other than mental illness, found to be closely related to mental retardation because the condition results in impairment of general intellectual functioning or adaptive behavior similar to that of persons with mental retardation, and requires treatment or services similar to those required for mentally retarded persons; (B) is manifested before the person reaches age 22; (C) is likely to continue indefinitely; and (D) results in substantial functional limitations in at least three of the following areas of major life activity; (i) self-care; (ii) understanding and use of language; (iii) learning; (iv) mobility; (v) self-direction; (vi) capacity for independent living. TDHS-The Texas Department of Human Services. TDMHMR-The Texas Department of Mental Health and Mental Retardation. Qualified mental retardation professional -A person who has at least one year of experience working directly with individuals with mental retardation or other developmental disabilities and who integrates, coordinates and monitors each individual's active treatment program; and is: (A) a doctor of medicine or osteopathy; (B) a registered nurses; or (C) an individual who holds at least a bachelor's degree in one of the following professional categories: (i) occupational therapist or occupational therapist assistant; (ii) physical therapist or physical therapist assistant; (iii) psychologist, with at least a masters degree; (iv) social worker; (v) speech-language pathologist; (vi) professional recreation staff; (vii) dietitian; or viii) human services professional. sec.406.204.Level-of-Care Determination and Level-of-Need Assignment. (a) Level-of-Care Determination. (1) The level-of-care determination is performed by the Texas Department of Human Services according to the level-of-care criteria in this subchapter. Information submitted to the Texas Department of Human Services must be based on current data obtained from standardized evaluations and formal assessments which include physical, emotional, social, and cognitive factors. (2) The ICF/MR Program has four levels of care: ICF/MR I, ICF/MR V, ICF/MR VI, and ICF-MR/RC VIII. Level-of-care determinations for the ICF/MR I, ICF/MR V, and ICF/MR VI levels of care are based on the individual's intellectual functioning. Level-of-care VIII determinations are based on the following variables regarding the developmental needs of each individual: (A) adaptive behavior and (B) health status. (3) A single, specific deficit or developmental need does not necessarily indicate a need for active treatment. (4) If an I.Q. score cannot be obtained for a person with severe or profound deficits in intellectual functioning, a social composite score (S.C.) obtained on the Vineland Adaptive Behavior Scale or other professionally accepted scale must be submitted. Documentation must be available that an assessment of intelligence with a standardized instrument was attempted. (5) An individual is not eligible for the ICF/MR Program if he: (A) Has been medically diagnosed as having "brain death," which includes no evidence of sensory receptivity or sensory responsiveness on a permanent basis; or (B) Does not respond in any way to his environment, but needs continuous care for medical reasons. (6) Some individuals may have special health care needs that necessitate placement in a facility which meets provisions of the National Fire Protection Association's Life Safety Code, 1985 edition, for accommodating special health care needs. When this occurs, placement in a facility that meets appropriate Life Safety Code requirements takes precedence over placement in a facility that matches the individual's level-of-care. Regardless of his level-of care determination, an individual who requires a 24 hour medical care plan is eligible for residence only in a facility that meets the provisions of either chapter 12 or chapter 13 of the 1985 Life Safety Code. (7) If the Texas Department of Human Services determines that information submitted for a level-of-care was not correct, the level-of-care determination is reevaluated. If information originally submitted has changed, the level-of- care determination is also re-evaluated. (8) If an individual's I.Q., adaptive behavior level, and/or health status are such that he does not meet all the criteria for any one level-of-care, TDHS conducts a special review of his application for a level-of-care. TDHS may ask him to submit current psychological, social, medical, and/or other evaluations. (9) The criteria for each level-of-care include a profile of typical developmental needs for that level-of-care. Based on I.Q., adaptive behavior level, and health status, an individual may meet the criteria for two levels of care. In this situation, application is made for the level-of-care that best meets the individual's developmental needs. This determination is based on the profile that most closely describes the individual. A single deficit in any of the categories of skills noted in a profile does not necessarily make the individual ineligible for that level-of-care. (b) Level-of-Need Assignment. (1) A level-of-need(LON) assignment is required for the ICF/MR and HCS programs. (2) The LON assignment is performed by the Texas Department of Human Services according to the LON criteria in this subchapter. Information submitted to the Texas Department of Human Services must be based on the initial data obtained from the Inventory for Client and Agency Planning(ICAP) and selected items on the TDHS Form 3650. (3) The ICF/MR Program has five levels of need: Intermittent, Limited, Extensive, and Pervasive. (4) LON assignments are based on the following variables regarding the developmental needs of each individual: (A) The ICAP service level score are categorized as levels of need when the score range is as follows: (i) A score is considered to be an Intermittent LON (1) if the ICAP Service Level equals 7, 8, or 9; (ii) A score is considered to be a Limited LON (5) if the ICAP Service Level equals 4, 5, or 6; (iii) A score is considered to be an Extensive LON (8) if the ICAP Service Level equals 2 or 3; (iv) A score is considered to be a Pervasive LON (6) if the ICAP Service Level equals 1. (v) A score is considered to be a Pervasive LON (9) if TDHS Form 3650 is scored with a least one Item 70 -73 = 2. (B) The Level-of-need can be modified to take into account extraordinary service needs that result from unusual behavioral or medical challenges. The level-of- need for these individuals combines ICAP Service Level Scores and needs identified on selected items on the TDHS Form 3650. A LON that does not directly correspond to the ICAP service level will be subject to utilization review by TDHS and TDMHMR. (i) Persons who have challenging behaviors that require a behavior program that requires constant preventive actions by additional staff will be classified to the next level-of-need from the original level. Normal staffing ratios are exceeded, although additional staff may assist in the supervision of other individuals. If an individual is already in the pervasive category due to an ICAP score, the person will retain the pervasive level-of-need. Very serious problems have the following classification: (I) The behavior(s) presents a danger to self or others. (II) The behavior(s) warrants individualized objectives and includes written procedures. (III) The frequency of the behavior(s) is reduced only with constant staffing and a highly structured environment. (IV) The behavior(s) is difficult or impossible for a single staff person to control when it occurs. (V) The behavior(s) precludes some activities/environments that cannot be structured. The interventions used to control the behavior will require regular documentation, monitoring, and revisions as needed to meet the needs of the individual. Form 3650 is scored with at least one of Items 70-73 = 1. The ICAP service level is moved to the next higher level-of-need. (ii) Persons who are at risk of hurting themselves or others and require a constant daily ratio of 1:1, consisting of an average of 16 hours a day that the individual is awake, will be categorized under a special service level-of-need for constant 1:1 surveillance. The behavior(s) is considered extremely serious, or a critical problem whenever: (I) The behavior(s) may be life-threatening; (II) The behavior(s) warrant the highest priority of individualized objectives and include a written record of every occurrence of the behavior; (III) The frequency of the behavior(s) is difficult to reduce; or (IV) The consequences of the behavior(s) are difficult to minimize. Form 3650 is scored with at least one of Items 70-73 = 2. The LON is Pervasive + (LON = 9) moved to the highest level-of-need. (iii) Persons who have extensive medical needs that require frequent nursing intervention will be classified at the next higher level-of-need (e.g., extensive will be classified as pervasive). If an individual is already in the pervasive category due to an ICAP score, the person will retain the pervasive level of service: Form 3650 is scored with Item #39 = 6 (frequency code) and 15 or 16 (service code). (5) If the Texas Department of Human Services determines that information submitted for a LON was not correct, the LON assignment is reevaluated. If information originally submitted has changed, the LON assignment may also be re- evaluated. sec.406.214.Utilization Review. (a) Utilization review (UR) plans and procedures must conform with policies of the Department of Health and Human Services, as required by 42 Code of Federal Regulations sec.456.401. The Texas State Plan for Title XIX requires a UR process for ICF/MR facilities participating in the Texas Medical Assistance Program. (b) ICF/MR Program teams of the TDMHMR, or its designee perform the UR functions for Title XIX clients in the facility. (c) The Texas Department of Mental Health and Mental Retardation (TDMHMR) is responsible for developing and maintaining level-of-care and level-of-need criteria to evaluate the necessity for each individual's continued stay. These level-of-care and level-of-need criteria are specified in sec.sec.406.205- 406.208 of this title. (d) UR-plan objectives are to: (1) promote quality care and to promote training that meets individual needs; (2) determine whether needed services are available and are provided on a continuing basis; (3) determine that the individual's are classified in the correct payment category; (4) ensure that the services provided are necessary; and (5) review the individual program plan. (e) The provider may request a reconsideration of the assignment of level-of- need made by TDMHMR or its designee by completing the Reconsideration Notice and sending it to the Utilization Review Section of Medicaid Administration at TDMHMR by certified mail within ten days of the date notification of the level- of-need assignment. Additional clinical and supporting documents must be sent by the provider. The Utilization Review Department will review all reconsiderations and notify the provider verbally within five working days of the receipt of the reconsideration form as to the decision of the department. Written confirmation will follow within five working days of the verbal notification. Prior approval is not a guarantee of payment. (f) The utilization review section of the TDMHMR office of Medicaid Administration, or its designee, will conduct periodic retrospective reviews. Based on such reviews, TDMHMR may recoup or deny payments to a provider. sec.406.216. Preadmission and Admission Process. (a) The Texas Department of Human Services (TDHS) reviews Preadmission and admission level-of-care and level-of-need assessments when a contracted facility has requested vendor assistance for care for a Medicaid applicant or consumer. ICF/MR I, ICF/MR V, and ICF/MR VI Preadmission level-of-care and level-of-need assessments are valid for 30 days or until the individual assessed is admitted to an ICF/MR facility, whichever is sooner. ICF/MR/RC VIII Preadmission level- of-care and level-of-need assessments are valid for 90 days or until the individual assessed is admitted to an ICF/MR/RC facility, whichever is sooner. Admission level-of-care and level-of-need assessments are valid for 180 days after the date of admission or TDHS stamp-in date. (b) Before an individual's admission, an interdisciplinary team of health care professionals, including a QMRP, must conduct a comprehensive medical, nutritional, social, and psychological review of the individual's status and need for ICF/MR care. If the evaluation indicates that the individual's needs could be met by alternative services, facility staff must enter this fact in the individual's record and document attempts to locate the services. (c) A physician must certify that each applicant or Medicaid client needs ICF/MR services at the time of admission to the Medicaid program and every six months thereafter. This certification is documented on the level-of-care assessment form for each individual. TDHS processes only those level-of-care assessment forms that include physicians' signatures. This physician certification is part of each individual's record and is reviewed annually as part of the inspection- of-care process. Facility staff must ensure that the recertification states: "I hereby certify that this individual continues to require ICF/MR care." (d) The facility must submit the person's level-of-care and level-of-need (as described in sec.406.204 of this subchapter) to TDHS ICF/MR/RC Regional Office within 20 working days of admission to the facility. 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. Issued in Austin, Texas, on January 17, 1997. TRD-9700220 Ann K. Utley Chairman, Texas MHMR Board Texas Mental Health and Mental Retardation Effective date: January 28, 1997 Proposal publication date: August 23, 1996 For further information, please call: (512) 206-4516 TITLE 40. SOCIAL SERVICES AND ASSISTANCE PART I. Texas Department of Human Services CHAPTER 48.Community Care for Aged and Disabled Case Management 40 TAC sec.48.3904 Texas Department of Human Services (DHS) adopts an amendment to sec.48.3904, without changes to the proposed text published in the December 6, 1996, issue of the Texas Register (21 TexReg 11753). The justification for the amendment is to reflect the rate increase approved for adult foster care providers. The amendment will function by providing additional reimbursement for providers of adult foster care. No comments were received regarding adoption of the amendment. The amendment is adopted under the Human Resources Code, Title 2, Chapter 22, which provides the department with the authority to administer public assistance programs. The amendment implements sec.sec.22.001-22.030 of the Human Resources Code. 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. Issued in Austin, Texas, on January 7, 1997. TRD-9700214 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: February 1, 1997 Proposal publication date: December 6, 1996 For further information, please call: (512) 438-3765