Texas Administrative Code Title 40

Social Services and Assistance: As effective August 6, 2010

Chapter 9

Subchapter B

§9.31: Application

This subchapter applies to all Medicaid programs administered by the Texas Department of Mental Health and Mental Retardation.

Comments

Source Note: The provisions of this §9.31 adopted to be effective June 13, 1995, 20 TexReg 3987; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841

§9.32: Definitions

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

(1) Administrative law judge--The attorney designated or appointed by the commissioner to conduct and preside over the administrative hearing.

(2) Adverse action--Any action taken or proposed by the department against a provider in which the provider may request an administrative hearing under Chapter 406 of this title (relating to ICF/MR Programs) or this chapter, concerning Medicaid Programs.

(3) Commissioner--The commissioner of the Texas Department of Mental Health and Mental Retardation.

(4) Days--Calendar days, unless otherwise specified.

(5) Department--The Texas Department of Mental Health and Mental Retardation (TXMHMR) or its designee.

(6) Person--An individual, partnership, corporation, association, governmental subdivision or agency, or a public or private organization of any character.

(7) Provider--Any person with whom the department has a provider agreement.

(8) Provider agreement--Any written agreement that obligates the department to pay money to a person for goods or services under the Title XIX Medical Assistance Program.

Comments

Source Note: The provisions of this §9.32 adopted to be effective June 13, 1995, 20 TexReg 3987; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841

§9.33: Notice of Adverse Action

(a) The commissioner or designee is authorized to make decisions concerning adverse action.

(b) The commissioner or designee must send a provider a notice advising the provider of any adverse action. The notice is sent by certified mail, return receipt requested, unless the department determines that a more immediate form of notice is required. The notice includes a description of the basis for the adverse action, including citation of the specific rule section(s) or portion of the provider agreement with which the provider in is noncompliance and informs the provider of the provider's right to an administrative hearing to contest the adverse action. If the adverse action proposed by the department is termination of the provider agreement, then the notice must also specify the dates that the department intends to begin withholding payment and to terminate the provider agreement in accordance with §409.35 of this title (relating to Withholding Provider Agreement Payments).

(c) The department does not have to give a notice of adverse action with each billing transaction for areas of the department that have a large volume of bills or which routinely post debit and credit entries. The department must give a provider a notice of appeal rights any time the provider informs the department in writing of the provider's dissatisfaction with a claim transaction which is an adverse action.

Comments

Source Note: The provisions of this §9.33 adopted to be effective June 13, 1995, 20 TexReg 3987; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841

§9.34: Request for an Administrative Hearing

(a) A provider must send to the department a written request for an administrative hearing within 15 days after receiving the department's official notice of adverse action. The request for an administrative hearing:

(1) may be in the form of a petition or a letter;

(2) must state the reasons the provider considers it is not subject to the adverse action; and

(3) must be addressed to: Hearings Office, TXMHMR, P.O. Box 12668, Austin, Texas 78911-2668.

(b) After the department receives the written request for an administrative hearing, the matter shall be referred to an administrative law judge for disposition according to Chapter 403, Subchapter O of this title (relating to Administrative Hearings of the Department in Contested Cases).

Comments

Source Note: The provisions of this §9.34 adopted to be effective June 13, 1995, 20 TexReg 3987; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841

§9.35: Withholding Provider Agreement Payments

If the department proposes to terminate a provider agreement and the provider requests an administrative hearing in accordance with §409.34 of this title (relating to Request for an Administrative Hearing), then the department may not terminate the provider agreement before the completion of the administrative hearing. If the department intends to terminate a provider agreement, then payments to the provider may be withheld by the department pending an administrative hearing appealing the proposed termination of the provider agreement. If the final decision of the administrative hearing is favorable to the department or the provider does not make a timely request for an administrative hearing, then payments withheld will not be made by the department to the provider. If the final decision is favorable to the provider, then payments withheld will be made by the department to the provider and provider agreement payments will be resumed by the department.

Comments

Source Note: The provisions of this §9.35 adopted to be effective June 13, 1995, 20 TexReg 3987; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841

Subchapter D

§9.151: Purpose

The purpose of this subchapter is to describe:

(1) the HCS Program eligibility criteria for applicants and individuals;

(2) the process for enrollment of applicants in the HCS Program;

(3) requirements for reimbursement of a program provider;

(4) the responsibilities of a program provider;

(5) the process for certifying and sanctioning a program provider in the HCS Program; and

(6) the responsibilities of an MRA in providing service coordination.

Comments

Source Note: The provisions of this §9.151 adopted to be effective March 1, 2000, 25 TexReg 1649; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841; amended to be effective June 1, 2006, 31 TexReg 4442; amended to be effective June 1, 2010, 35 TexReg 4441

§9.152: Application

This subchapter applies to all MRAs and HCS Program providers.

Comments

Source Note: The provisions of this §9.152 adopted to be effective March 1, 2000, 25 TexReg 1649; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841; amended to be effective June 1, 2006, 31 TexReg 4442; amended to be effective June 1, 2010, 35 TexReg 4441

§9.153: Definitions

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

(1) Actively involved--Significant, ongoing, and supportive involvement with the applicant or individual by a person, as determined by the applicant's or individual's service planning team or program provider, based on the person's:

(A) interactions with the applicant or individual;

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

(C) knowledge of, sensitivity to, and advocacy for the applicant's or individual's needs, preferences, values, and beliefs.

(2) Applicant--A Texas resident seeking services in the HCS Program.

(3) Behavioral emergency--A situation in which severely aggressive, destructive, violent, or self-injurious behavior exhibited by an individual:

(A) poses a substantial risk of imminent probable death of, or substantial bodily harm to, the individual or others;

(B) has not abated in response to attempted preventive de-escalatory or redirection techniques;

(C) is not addressed in a written behavior support plan; and

(D) does not occur during a medical or dental procedure.

(4) Business day--A day when a program provider's administrative offices are open.

(5) CARE--DADS' Client Assignment and Registration System, a database with demographic and other data about an individual who is receiving services and supports or on whose behalf services and supports have been requested.

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

(7) CDSA--Consumer directed service agency. An entity, as defined in §41.103 of this title, that provides financial management services and, at the request of an individual or LAR, support consultation to the individual participating in CDS.

(8) CDS service provider--An employee or contractor of a CDS employer.

(9) CRCG (Community Resource Coordination Group)--A local interagency group composed of public and private agencies that develops service plans for individuals whose needs can be met only through interagency coordination and cooperation. The group's role and responsibilities are described in the Memorandum of Understanding on Coordinated Services to Persons Needing Services from More Than One Agency, available on the HHSC website at www.hhsc.state.tx.us.

(10) Critical incident data--Information a program provider enters in CARE as defined in the CARE User Guide found at http://www2.mhmr.state.tx.us/655/cis/training/WAIVER.html.

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

(12) DARS--The Department of Assistive and Rehabilitative Services.

(13) DFPS--The Department of Family and Protective Services.

(14) Emergency--An unexpected situation in which the absence of an immediate response could reasonably be expected to result in risk to the health and safety of an individual or another person.

(15) Emergency situation--An unexpected situation involving an individual's health, safety, or welfare, of which a person of ordinary prudence would determine that the LAR should be informed, such as:

(A) an individual needing emergency medical care;

(B) an individual being removed from his residence by law enforcement;

(C) an individual leaving his residence without notifying a staff member or service provider and not being located; and

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

(16) Family-based alternative--A family setting in which the family provider or providers are specially trained to provide support and in-home care for children with disabilities or children who are medically fragile.

(17) Financial management services--A service, as defined in §41.103 of this title, that is provided to an individual who chooses to participate in CDS.

(18) Four-person residence--A residence:

(A) that a program provider leases or owns;

(B) in which at least one person but no more than four persons receive:

(i) residential support;

(ii) supervised living;

(iii) a non-HCS Program service similar to residential support or supervised living (for example, services funded by DFPS or by a person's own resources); or

(iv) respite;

(C) that, if it is the residence of four persons, at least one of those persons receives residential support;

(D) that is not the residence of any persons other than those described in subparagraph (B) of this paragraph; and

(E) that is not a dwelling described in §9.155(a)(5)(H) of this subchapter (relating to Eligibility Criteria and Suspension of HCS Program Services).

(19) HCS Program--The Home and Community-based Services Program operated by DADS as authorized by the Centers for Medicare and Medicaid Services in accordance with §1915(c) of the Social Security Act.

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

(21) ICAP--Inventory for Client and Agency Planning.

(22) ICF/MR--Intermediate care facility for persons with mental retardation or related conditions.

(23) Implementation Plan--A written document developed by the program provider for an individual that, for each HCS Program service on the individual's IPC not provided through the CDS option, includes:

(A) a list of outcomes identified in the PDP that will be addressed using HCS Program services;

(B) specific objectives to address the outcomes required by subparagraph (A) of this paragraph that are:

(i) observable, measurable, and outcome-oriented; and

(ii) derived from assessments of the individual's strengths, personal goals, and needs;

(C) a target date for completion of each objective;

(D) the number of HCS Program units of service needed to complete each objective;

(E) the frequency and duration of HCS Program services needed to complete each objective; and

(F) the signature and date of the individual, LAR, and the program provider.

(24) Individual--A person enrolled in the HCS Program.

(25) Initial IPC--The first IPC for an individual developed before the individual's enrollment into the HCS Program.

(26) IPC (individual plan of care)--A written plan that:

(A) states:

(i) the type and amount of each HCS Program service to be provided to the individual during an IPC year; and

(ii) the services and supports to be provided to the individual through non-HCS Program resources, including natural supports, medical services, and educational services; and

(B) is authorized by DADS.

(27) IPC cost--Estimated annual cost of HCS Program services included on an IPC.

(28) IPC year--A 12-month period of time starting on the date an initial or renewal IPC begins. A revised IPC does not change the begin or end date of an IPC year.

(29) Large ICF/MR--A non-state operated ICF/MR with a Medicaid certified capacity of 14 or more.

(30) LAR (legally authorized representative)--A person authorized by law to act on behalf of a person with regard to a matter described in this subchapter, and may include a parent, guardian, or managing conservator of a minor, or the guardian of an adult.

(31) LOC (level of care)--A determination given to an individual as part of the eligibility determination process based on data submitted on the MR/RC Assessment.

(32) LON (level of need)--An assignment given by DADS to an individual upon which reimbursement for foster/companion care, supervised living, residential support, and day habilitation is based.

(33) LVN--Licensed vocational nurse.

(34) MRA (mental retardation authority)--In accordance with Texas Health and Safety Code, §533.035(a), an entity designated as a local mental retardation authority by the executive commissioner of HHSC to which the executive commissioner delegates HHSC's authority and responsibility within a specified region for planning, policy development, coordination, and resource development and allocation and for supervising and ensuring the provision of mental retardation services to persons with mental retardation in one or more local service areas.

(35) MR/RC (Mental Retardation/Related Condition) Assessment--A form used by DADS for LOC determination and LON assignment.

(36) Natural supports--Unpaid persons, including family members, volunteers, neighbors, and friends, who assist and sustain an individual.

(37) PDP (person-directed plan)--A written plan, based on person-directed planning and developed with an applicant or individual in accordance with the HCS Person-Directed Plan form and discovery tool found at www.dads.state.tx.us., that describes the supports and services necessary to achieve the desired outcomes identified by the applicant or individual (and LAR on the applicant's or individual's behalf) and ensure the applicant's or individual's health and safety.

(38) Person-directed planning--An ongoing process that empowers the applicant or individual (and the LAR on the applicant's or individual's behalf) to direct the development of a PDP. The process:

(A) identifies supports and services necessary to achieve the applicant's or individual's outcomes;

(B) identifies existing supports, including natural supports and other supports available to the applicant or individual and negotiates needed services system supports;

(C) occurs with the support of a group of people chosen by the applicant or individual (and the LAR on the applicant's or individual's behalf); and

(D) accommodates the applicant's or individual's style of interaction and preferences.

(39) Permanency planning--A philosophy and planning process that focuses on the outcome of family support for an applicant or individual under 22 years of age by facilitating a permanent living arrangement in which the primary feature is an enduring and nurturing parental relationship.

(40) Permanency Planning Review Screen--A screen in CARE, completed by an MRA, that identifies community supports needed to achieve an applicant's or individual's permanency planning outcomes and provides information necessary for approval to provide supervised living or residential support to the applicant or individual.

(41) Primary correspondent--A person who may request, in accordance with the Mental Retardation Interest List Manual, that an MRA place an applicant's name on the HCS Program interest list.

(42) Program provider--An entity that provides HCS Program services under a waiver program provider agreement with DADS as defined in Subchapter Q of this chapter (relating to Enrollment of Medicaid Waiver Program Providers).

(43) Renewal IPC--An IPC developed for an individual in accordance with §9.166(a) of this subchapter (relating to Renewal and Revision of an IPC).

(44) Restraint--

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

(i) the free movement or normal functioning of all or a portion of an individual's body; or

(ii) normal access by an individual to a portion of the individual's body.

(B) Physical guidance or prompting of brief duration becomes a restraint if the individual resists the physical guidance or prompting.

(45) RN--Registered nurse.

(46) Revised IPC--An initial IPC or a renewal IPC that is revised during an IPC year in accordance with §9.166(b) or (d) of this subchapter or §9.168(h) of this subchapter (relating to CDS) to add a new HCS Program service or change the amount of an existing service.

(47) Seclusion--The involuntary separation of an individual away from other individuals and the placement of the individual alone in an area from which the individual is prevented from leaving.

(48) Service back-up plan--A plan, as defined in §41.103 of this title, that ensures continuity of critical program services if service delivery is interrupted.

(49) Service coordination--A service as defined in Chapter 2, Subchapter L of this title (relating to Service Coordination with Individuals for Mental Retardation).

(50) Service coordinator--An employee of an MRA who provides service coordination to an individual.

(51) Service planning team--A planning team consisting of an applicant or individual, LAR, service coordinator, and other persons chosen by the applicant or individual or LAR on behalf of the applicant or individual (for example, a program provider representative, family member, friend, or teacher).

(52) Service provider--A person, who may be a staff member, who directly provides an HCS Program service to an individual.

(53) SSI--Supplemental Security Income.

(54) Staff member--An employee or contractor of an HCS Program provider.

(55) State supported living center--A state-supported and structured residential facility operated by DADS to provide to persons with mental retardation a variety of services, including medical treatment, specialized therapy, and training in the acquisition of personal, social, and vocational skills, but does not include a community-based facility owned by DADS.

(56) Support consultation--A service, as defined in §41.103 of this title, that is provided by a support advisor employed by, or contracted through, a CDSA or retained as a contractor by an employer in the CDS option.

(57) TANF--Temporary Assistance for Needy Families.

(58) Three-person residence--A residence:

(A) that a program provider leases or owns;

(B) in which at least one person but no more than three persons receive:

(i) residential support;

(ii) supervised living;

(iii) a non-HCS Program service similar to residential support or supervised living (for example, services funded by DFPS or by a person's own resources); or

(iv) respite;

(C) that is not the residence of any person other than a service provider, the service provider's spouse or person with whom the service provider has a spousal relationship, or a person described in subparagraph (B) of this paragraph; and

(D) that is not a dwelling described in §9.155(a)(5)(H) of this subchapter.

§9.154: Description of the Hcs Program

(a) The HCS Program is a Medicaid waiver program approved by the Centers for Medicare and Medicaid Services (CMS) pursuant to §1915(c) of the Social Security Act. It provides community-based services and supports to eligible individuals as an alternative to the ICF/MR Program. The HCS Program is operated by DADS under the authority of HHSC.

(b) Enrollment in the HCS Program is limited to the number of individuals in specified target groups and to the geographic areas approved by CMS.

(c) HCS Program service components listed in this subsection are selected for inclusion in an individual's IPC to ensure the individual's health, safety, and welfare in the community, supplement rather than replace that individual's natural supports and other community services for which the individual may be eligible, and prevent the individual's admission to institutional services. The following service components are defined in Appendix C of the HCS Program waiver application approved by CMS and found at www.dads.state.tx.us. Service components available under the HCS Program are:

(1) specialized therapies provided by appropriately licensed or certified professionals, including:

(A) physical therapy;

(B) occupational therapy;

(C) speech and language pathology;

(D) audiology;

(E) social work;

(F) behavioral support; and

(G) dietary services;

(2) nursing provided by licensed nurses;

(3) residential assistance, excluding room and board, provided in one of the following three ways:

(A) foster/companion care;

(B) supervised living; or

(C) residential support;

(4) supported home living, which is not a reimbursable service for individuals receiving foster/companion care, supervised living, or residential support;

(5) respite, which includes room and board when provided in a setting other than the individual's home, but is not a reimbursable service for individuals receiving foster/companion care, supervised living, or residential support;

(6) day habilitation, provided exclusive of any other separately funded service, including public school services, rehabilitative services for persons with mental illness, other programs funded by DADS, or programs funded by DARS;

(7) supported employment, which may be provided if the service has been denied or is otherwise unavailable to an individual through a program operated by a state rehabilitation agency or the public school system;

(8) adaptive aids;

(9) minor home modifications;

(10) dental treatment;

(11) financial management services, if the individual is participating in CDS; and

(12) support consultation, if the individual is participating in CDS.

(d) DADS has grouped the counties of the state of Texas into geographical areas, referred to as "local service areas," each of which is served by an MRA. DADS has further grouped the local service areas into "waiver contract areas." A list of the counties included in each local service area and waiver contract area is found at www.dads.state.tx.us.

(1) A program provider may provide HCS Program services only to persons residing in the counties specified for the program provider in DADS' automated enrollment and billing system.

(2) A program provider must have a separate program provider agreement for each waiver contract area served by the program provider.

(3) A program provider may have a program provider agreement to serve one or more local service areas within a waiver contract area, but the program provider must serve all of the counties within each local service area covered by the program provider agreement.

(4) A program provider may not have more than one program provider agreement per waiver contract area.

(e) A program provider must comply with:

(1) all applicable state and federal laws, rules, and regulations; and

(2) DADS Information Letters regarding the HCS Program found at www.dads.state.tx.us.

(f) CDS is a service delivery option, described in Chapter 41 of this title (relating to Consumer Directed Services Option), in which an individual or LAR employs and retains CDS service providers and directs the delivery of supported home living, respite, or both.

Comments

Source Note: The provisions of this §9.154 adopted to be effective March 1, 2000, 25 TexReg 1649; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841; amended to be effective June 1, 2006, 31 TexReg 4442; amended to be effective March 1, 2007, 32 TexReg 537; amended to be effective June 1, 2008, 33 TexReg 4334; amended to be effective June 1, 2010, 35 TexReg 4441

§9.155: Eligibility Criteria and Suspension of Hcs Program Services

(a) An applicant or individual is eligible for HCS Program services if he or she:

(1) meets the financial eligibility criteria as defined in subsection (b) of this section;

(2) meets one of the following criteria:

(A) qualifies for the ICF/MR LOC I as defined in §9.238 of this chapter (relating to Level of Care I Criteria), as determined by DADS according to §9.161 of this subchapter (relating to LOC Determination); and

(i) has had a determination of mental retardation performed in accordance with state law (Texas Health and Safety Code, Chapter 593, Admission and Commitment to Mental Retardation Services, Subchapter A); or

(ii) has been diagnosed by a licensed physician as having a related condition as defined in §9.203 of this chapter (relating to Definitions) before enrollment in the HCS Program; or

(B) qualifies for the ICF/MR LOC I as defined in §9.238 of this chapter or ICF/MR LOC VIII as defined in §9.239 of this chapter (relating to ICF/MR Level of Care VIII Criteria), as determined by DADS according to §9.161 of this subchapter, and has been determined by DADS:

(i) to have mental retardation or a related condition;

(ii) to need specialized services; and

(iii) to be inappropriately placed in a Medicaid certified nursing facility based on an annual resident review conducted in accordance with the requirements of §19.2500 of this title (relating to Preadmission Screening and Resident Review (PASARR);

(3) has an authorized IPC for which the IPC cost does not exceed 200% of the annual ICF/MR reimbursement rate paid to a small ICF/MR, as defined in 1 TAC §355.456 (relating to Reimbursement Methodology) for the individual's level of need as it would be assigned under §9.240 of this chapter (relating to Level of Need) or 200% of the estimated annualized per capita cost for ICF/MR services, whichever is greater;

(4) is not enrolled in another waiver program under §1915(b) or (c) of the Social Security Act; and

(5) does not reside in:

(A) an ICF/MR licensed or subject to being licensed in accordance with Texas Health and Safety Code, Chapter 252, or certified by DADS;

(B) a nursing facility licensed or subject to being licensed in accordance with Texas Health and Safety Code, Chapter 242;

(C) an assisted living facility licensed or subject to being licensed in accordance with Texas Health and Safety Code, Chapter 247;

(D) a residential child-care operation licensed or subject to being licensed by DFPS unless it is a foster family home or a foster group home;

(E) a facility licensed or subject to being licensed by the Department of State Health Services (DSHS);

(F) a facility operated by DARS;

(G) a residential facility operated by the Texas Youth Commission, a jail, or a prison; or

(H) a setting in which two or more dwellings, including units in a duplex or apartment complex, single family homes, or facilities listed in subparagraphs (A) - (G) of this paragraph, excluding supportive housing under Section 811 of the National Affordable Housing Act of 1990, meet all of the following criteria:

(i) the dwellings create a residential area distinguishable from other areas primarily occupied by persons who do not require routine support services because of a disability;

(ii) most of the residents of the dwellings are persons with mental retardation; and

(iii) the residents of the dwellings are provided routine support services through personnel, equipment, or service facilities shared with the residents of the other dwellings.

(b) An applicant or individual is financially eligible for the HCS Program if he or she:

(1) is categorically eligible for SSI benefits;

(2) has once been eligible for and received SSI benefits and continues to be eligible for Medicaid as a result of protective coverage mandated by federal law;

(3) is under 18 years of age and:

(A) resides with a parent or spouse;

(B) is eligible for Medicaid benefits only, if institutionalized;

(C) meets the SSI criteria for disability;

(D) meets the SSI criteria for institutional deeming; and

(E) has income and resources that meet the requirements of the SSI program;

(4) is under 20 years of age and:

(A) is financially the responsibility of DFPS in whole or in part; and

(B) is being cared for in a foster home or group home:

(i) that is licensed or certified and supervised by DFPS or a licensed public or private nonprofit child placing agency; and

(ii) in which a foster parent is the primary caregiver residing in the home;

(5) is a member of a family who receives full Medicaid benefits as a result of qualifying for TANF; or

(6) is eligible for SSI benefits in the community, except on the basis of income, and meets the special institutional income limit for Medicaid benefits in Texas without regard to spousal income.

(c) For applicants or individuals with spouses who live in the community, the income and resource eligibility requirements are determined according to the spousal impoverishment provisions in §1924 of the Social Security Act and as specified in the Medicaid State Plan.

(d) If an individual is temporarily admitted to one of the following settings, the individual's HCS Program services are suspended during that admission:

(1) a hospital;

(2) an ICF/MR licensed or subject to being licensed in accordance with Texas Health and Safety Code, Chapter 252 or certified by DADS;

(3) a nursing facility licensed or subject to being licensed in accordance with Texas Health and Safety Code, Chapter 242;

(4) a residential child-care operation licensed or subject to being licensed by DFPS;

(5) a facility licensed or subject to being licensed by the DSHS;

(6) a facility operated by DARS; or

(7) a residential facility operated by the Texas Youth Commission, a jail, or a prison.

Comments

Source Note: The provisions of this §9.155 adopted to be effective March 1, 2000, 25 TexReg 1649; amended to be effective September 1, 2001, 26 TexReg 5823; amended to be effective September 1, 2003, 28 TexReg 6885; amended to be effective August 31, 2004, 29 TexReg 8333; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841; amended to be effective June 1, 2006, 31 TexReg 4442; amended to be effective June 1, 2008, 33 TexReg 4334; amended to be effective June 1, 2010, 35TexReg 4441

§9.156: Calculation of Co-payment

(a) Individuals and eligible couples determined to be financially eligible based on the special institutional income limit may be required to share in the cost of HCS Program services. The method for determining the individual's or couple's co-payment is described in subsections (b) and (c) of this section and documented on the HHSC Waiver Program Co-Pay Worksheet.

(b) The co-payment amount as determined by HHSC is the individual's or couple's remaining income after all allowable expenses have been deducted. The co-payment amount is applied only to the cost of home and community-based services funded through the HCS Program and specified on each individual's IPC. The co-payment must not exceed the cost of services actually delivered. The co-payment must be paid by the individual or couple, authorized representative, or trustee directly to the program provider in accordance with the HHSC determination. When calculating the co-payment amount for an individual or a couple whose income exceeds the maximum personal needs allowance, the following are deducted:

(1) the cost of the individual's or couple's maintenance needs, which must be equivalent to the special institutional income limit for eligibility under the Texas Medicaid program;

(2) the cost of the maintenance needs of the individual's or couple's dependent children, which is an amount equivalent to the TANF basic monthly grant for children or a spouse with children, using the recognizable needs amounts in the TANF Budgetary Allowances Chart; and

(3) the costs incurred for medical or remedial care that are necessary but are not subject to payment by Medicare, Medicaid, or any other third party, which include the costs of health insurance premiums, deductibles, and co-insurance.

(c) When calculating the co-payment amount for individuals with community spouses, HHSC determines the amount of the recipient's income applicable to payment in accordance with §1924 of the Social Security Act and 42 CFR §435.726.

Comments

Source Note: The provisions of this §9.156 adopted to be effective March 1, 2000, 25 TexReg 1649; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841; amended to be effective June 1, 2006, 31 TexReg 4442

§9.157: Maintenance of Hcs Program Interest List

(a) An MRA must maintain an up-to-date interest list of applicants waiting to receive HCS Program services for whom the MRA is the designated MRA in CARE.

(1) If an applicant's name is placed on the HCS Program interest list, the MRA must assign the applicant a registration date that is:

(A) the date of receipt by an MRA of a written or oral request for HCS Program services;

(B) the date of receipt of notification given to the MRA in accordance with Texas Government Code, §531.154, that an individual under 22 years of age has been admitted to one of the following institutions, as defined in Texas Government Code, §531.151:

(i) an ICF/MR;

(ii) a nursing home;

(iii) an institution for the mentally retarded licensed by DFPS;

(iv) a foster group home licensed by DFPS; or

(v) another residential arrangement that provides care to four or more individuals under 22 years of age who are unrelated to each other; or

(C) the date of an MRA's notification to an applicant under 22 years of age as described in §9.158(g)(1) of this subchapter (relating to Process for Enrollment of Applicants).

(2) The MRA must provide written notification to program providers in its local service area of the process that program providers should use to refer applicants who express a desire to be placed on the HCS Program interest list.

(3) Except as specified in paragraph (4) of this subsection, the MRA must remove an applicant's name from the HCS Program interest list if it is documented that:

(A) written permission has been obtained from the applicant or the primary correspondent to remove the applicant's name from the waiting list;

(B) the applicant is deceased;

(C) the applicant has moved out of Texas;

(D) the applicant's name has been added to another MRA's interest list in accordance with paragraph (6) of this subsection;

(E) the applicant or LAR has not responded to the MRA's notification of a program vacancy within 30 calendar days after the date of the MRA's notification;

(F) the applicant or LAR has declined HCS Program services;

(G) the applicant or LAR has not responded to the MRA's attempts to contact the applicant or LAR during its annual update of the interest list;

(H) the applicant or LAR has not documented the choice of HCS Program services over the ICF/MR Program using the Verification of Freedom of Choice, Waiver Program form within the time frames described in §9.158(f)(2) of this subchapter; or

(I) the applicant or LAR has not documented the choice of a program provider using the Documentation of Provider Choice form within the time frames described in §9.158(f)(3) of this subchapter.

(4) For an applicant under 22 years of age whose name was placed on the HCS Program interest list in accordance with Texas Government Code, §531.157, an MRA may remove the applicant's name from the interest list only if the applicant is deceased or the applicant's name has been transferred in accordance with paragraph (6) of this subsection.

(5) If an applicant's name is removed from an interest list in accordance with paragraph (3) or (4) of this subsection, and if the applicant, LAR, or the MRA wants the name reinstated to the interest list, the applicant, LAR, or MRA may request that DADS review the circumstances under which the applicant's name was removed from the MRA's interest list. At its discretion, DADS may reinstate the applicant's name to the interest list using the previously assigned registration date.

(6) At the request of an applicant or LAR who moves to the local service area of a different MRA, the original MRA must provide the applicant's name and date of request for HCS Program services to the MRA in the local service area where the applicant has moved. The MRA receiving the information must add the applicant's name to its interest list using the date of the request for HCS Program services provided by the original MRA.

(b) DADS removes an applicant's name from the HCS Program interest list if DADS has denied the applicant enrollment and the applicant or LAR has had an opportunity to exercise the applicant's right to appeal the decision in accordance with §9.169 of this subchapter (relating to Fair Hearing) and did not appeal the decision, or appealed and did not prevail.

Comments

Source Note: The provisions of this §9.157 adopted to be effective June 1, 2010, 35 TexReg 4441

§9.158: Process for Enrollment of Applicants

(a) DADS notifies an MRA, in writing, of an HCS Program vacancy in the MRA's local service area and directs the MRA to offer the program vacancy to an applicant:

(1) whose registration date, assigned in accordance with §9.157(a)(1) of this subchapter (relating to Maintenance of HCS Program Interest list), is earliest on the statewide interest list for the HCS Program as maintained by DADS;

(2) whose registration date, assigned in accordance with §9.157(a)(1) of this subchapter is earliest on the local service area interest list for the HCS Program as maintained by the MRA, in accordance with §9.157 of this subchapter;

(3) for whom DADS has proposed to terminate or has terminated TxHmL Program services because the applicant no longer meets the eligibility criteria described in §9.556(a)(5) and (8) of this chapter (relating to Eligibility Criteria); or

(4) who is a member of a target group identified in the approved HCS waiver application.

(b) Except as provided in subsection (c) of this section, the MRA must make the offer of program vacancy in writing and deliver it to the applicant or LAR by regular United States mail or by hand delivery.

(c) The MRA must make the offer of program vacancy to an applicant described in subsection (a)(4) of this section who is currently receiving services in a state supported living center or a state mental health facility as defined by §2.253 of this title (relating to Definitions) in accordance with DADS procedures.

(d) The MRA must include in a written offer that is made in accordance with subsection (a)(1), (2), or (3) of this section:

(1) a statement that:

(A) if the applicant or LAR does not respond to the offer of the program vacancy within 30 calendar days after the MRA's written offer, the MRA withdraws the offer of the program vacancy, and:

(i) for an applicant who is under 22 years of age and residing in an institution listed in §9.157(a)(1)(B)(i) - (v) of this subchapter, the MRA removes the applicant's name from the HCS Program interest list in accordance with §9.157(a)(3)(F) of this subchapter and places the applicant's name on the HCS Program interest list with a new registration date that is the date of the MRA's notification; or

(ii) for an applicant other than one described in clause (i) of this subparagraph, the MRA removes the applicant's name from the HCS Program interest list in accordance with §9.157(a)(3)(F) of this subchapter; and

(B) if the applicant is currently receiving services from the MRA that are funded by general revenue and the applicant or LAR declines the offer of the program vacancy, the MRA terminates those services that are similar to services provided under the HCS Program; and

(2) information relating to the time frame requirements described in subsection (f) of this section using the Deadline Notification form, which is found at www.dads.state.tx.us.

(e) If an applicant or LAR responds to an offer of program vacancy, the MRA must:

(1) provide the applicant, LAR, and, if the LAR is a not family member, at least one family member (if possible) both an oral and written explanation of the services and supports for which the applicant may be eligible, including the ICF/MR Program (both state supported living centers and community-based facilities), waiver programs under §1915(c) of the Social Security Act, and other community-based services and supports. The MRA must use the Explanation of Services and Supports document, which is found at www.dads.state.tx.us; and

(2) give the applicant or LAR the Verification of Freedom of Choice Form, Waiver Program which is found at www.dads.state.tx.us, to document the applicant's choice regarding the HCS Program and ICF/MR Program.

(f) The MRA must withdraw an offer of a program vacancy made to an applicant or LAR and remove the applicant's name from the HCS Program interest list if:

(1) within 30 calendar days after the MRA's offer made to the applicant or LAR in accordance with subsection (a)(1), (2), or (3) of this section, the applicant or LAR does not respond to the offer of the program vacancy;

(2) within seven calendar days after the applicant or LAR receives the Verification of Freedom of Choice, Waiver Program form from the MRA in accordance with subsection (e)(2) of this section, the applicant or LAR does not document the choice of HCS Program services over the ICF/MR Program using the Verification of Freedom of Choice, Waiver Program form; or

(3) within 30 calendar days after the applicant or LAR has received the contact information regarding all program providers in the MRA's local service area in accordance with subsection (l)(1) of this section, the applicant or LAR does not document the choice of a program provider using the Documentation of Provider Choice form.

(g) If the MRA withdraws an offer of a program vacancy made to an applicant and removes the applicant's name from the HCS Program interest list, the MRA must notify the applicant or LAR of such actions, in writing, by certified United States mail and:

(1) for an applicant who is under 22 years of age and residing in an institution listed in §9.157(a)(1)(B)(i) - (v) of this subchapter, include a statement that the applicant's name will be placed on the HCS Program interest list with a new registration date that is the date of the MRA's notification; or

(2) for an applicant other than one described in paragraph (1) of this subsection, include a statement that the applicant or the applicant's primary correspondent may request, orally or in writing, to have the applicant's name placed on the HCS Program interest list with a new registration date that is the date the applicant or LAR makes the request.

(h) If the applicant is currently receiving services from the MRA that are funded by general revenue and the applicant declines the offer of the program vacancy, the MRA must terminate those services that are similar to services provided under the HCS Program.

(i) If the MRA terminates an applicant's services in accordance with subsection (h) of this section, the MRA must notify the applicant or LAR of the termination, in writing, by certified United States mail and provide an opportunity for a review in accordance with §2.46 of this title (relating to Notification and Appeals Process).

(j) If the MRA notifies an applicant under 22 years of age or the applicant's LAR in accordance with subsection (g)(1) of this section, the MRA must coordinate with DADS to ensure the applicant's name is placed on the HCS Program interest list with a new registration date that is the date of the MRA's notification.

(k) If the applicant or LAR, on the applicant's behalf, chooses to enroll in the HCS Program the MRA must compile and maintain information necessary to process the request for enrollment in the HCS Program.

(1) If the applicant's financial eligibility for the HCS Program must be established, the MRA must initiate, monitor, and support the processes necessary to obtain a financial eligibility determination.

(2) The MRA must complete an MR/RC Assessment if an LOC determination is necessary in accordance with §9.161 and §9.163 of this subchapter (relating to LOC Determination and LON Assignment, respectively).

(A) The MRA must:

(i) perform or endorse a determination that the applicant has mental retardation in accordance with Chapter 5, Subchapter D of this title (relating to Diagnostic Eligibility for Services and Supports-Mental Retardation Priority Population and Related Conditions); or

(ii) verify that the applicant has been diagnosed by a licensed physician as having a related condition as defined in §9.203 of this chapter (relating to Definitions).

(B) The MRA must administer the ICAP and recommend an LON assignment to DADS in accordance with §9.163 and §9.164 of this subchapter (relating to DADS' Review of LON).

(C) The MRA must electronically transmit the completed MR/RC Assessment to DADS for approval in accordance with §9.161(a) and §9.163(a) of this subchapter and, if applicable, submit supporting documentation as required by §9.164(c) of this subchapter;

(3) The MRA must assign a service coordinator who, together with the applicant and LAR, must develop a PDP.

(4) The MRA must develop a proposed initial IPC with the applicant or LAR in accordance with §9.159(c) of this subchapter (relating to IPC).

(l) The service coordinator must:

(1) provide names and contact information to the applicant or LAR regarding available program providers in the MRA's local service area (i.e., program providers operating below their service capacity as identified in CARE);

(2) arrange for meetings and visits with potential program providers as requested by the applicant or LAR;

(3) review the proposed initial IPC with potential program providers as requested by the applicant or LAR;

(4) ensure that the applicant's or LAR's choice of a program provider is documented on the Documentation of Provider Choice Form and signed by the applicant or LAR;

(5) negotiate and finalize the proposed initial IPC and the date services will begin with the selected program provider, consulting with DADS if necessary to reach agreement with the selected program provider on the content of the proposed initial IPC and the date services will begin;

(6) ensure the individual or LAR signs and dates the proposed initial IPC;

(7) ensure the selected program provider signs and dates the proposed IPC, demonstrating agreement that the service components will be provided to the individual;

(8) sign and date the proposed initial IPC, which indicates that the service coordinator agrees that the requirements described in §9.159(c) of this subchapter have been met; and

(9) inform the applicant or LAR, orally and in writing, of the following reasons HCS Program services may be terminated:

(A) the individual no longer meets the eligibility criteria described in §9.155 of this subchapter (relating to Eligibility Criteria and Suspension of HCS Program Services); or

(B) the individual or LAR requests termination of HCS Program services.

(m) The MRA must:

(1) conduct permanency planning in accordance with §9.167(a) of this subchapter (relating to Permanency Planning); and

(2) discuss CDS with the applicant or LAR in accordance with §9.168(a) and (b) of this subchapter (relating to CDS).

(n) After the proposed initial IPC is finalized and signed in accordance with subsection (l)(5) - (8) of this section, the MRA must:

(1) electronically transmit the proposed initial IPC to DADS and:

(A) keep the original proposed initial IPC in the individual's record; and

(B) ensure the electronically transmitted proposed initial IPC contains information identical to that on the original proposed initial IPC; and

(2) submit other required enrollment information to DADS.

(o) DADS notifies the applicant or LAR, the selected program provider, the CDSA, if applicable, and the MRA of its approval or denial of the applicant's enrollment. When enrollment is approved, DADS authorizes the applicant's enrollment in the HCS Program through the automated enrollment and billing system and issues an enrollment letter that includes the effective date of the applicant's enrollment in the HCS Program.

(p) Prior to the individual's service begin date, the MRA must provide to the selected program provider and CDSA, if applicable, copies of all enrollment documentation and associated supporting documentation, including relevant assessment results and recommendations, the completed MR/RC Assessment, the proposed initial IPC, and the applicant's PDP.

(q) The selected program provider must not initiate services until notified of DADS' approval of the applicant's enrollment.

(r) The selected program provider must develop an implementation plan for HCS Program services that is based on the individual's PDP and authorized IPC.

(s) The MRA must retain in the applicant's record:

(1) the Verification of Freedom of Choice, Waiver Program form documenting the applicant's or LAR's choice of services;

(2) the Documentation of Provider Choice form documenting the applicant's or LAR's choice of a program provider, if applicable;

(3) the Deadline Notification form; and

(4) any other correspondence related to the offer of a program vacancy.

(t) Copies of the following forms and letters referenced in this section are available by contacting the Department of Aging and Disability Services, Provider Services Division, P.O. Box 149030, Mail Code W-521, Austin, Texas 78714-9030:

(1) Verification of Freedom of Choice, Waiver Program;

(2) Documentation of Provider Choice form; and

(3) Deadline Notification form.

Comments

Source Note: The provisions of this §9.158 adopted to be effective June 1, 2010, 35 TexReg 4441

§9.159: Ipc

(a) An MRA must initiate development of a proposed initial IPC for an applicant as required by §9.158(k)(4) of this subchapter (relating to Process for Enrollment of Applicants).

(b) A program provider must initiate development of a proposed renewal and proposed revised IPC for an individual as required by §9.166 of this subchapter (relating to Renewal and Revision of an IPC).

(c) An IPC must be based on the PDP and specify the type and amount of each service component to be provided to an individual, as well as services and supports to be provided by other sources during the IPC year. The type and amount of each service component must be supported by:

(1) documentation that other sources for the service component are unavailable and the service component does not replace existing supports, including natural supports or other sources for the service;

(2) assessments of the individual that identify specific service components necessary for the individual to live in the community, to ensure the individual's health, safety, and welfare in the community, and to prevent the need for institutional services; and

(3) documentation of deliberations and conclusions of the service planning team that the service components are based on the desired outcomes in the PDP and are necessary for the individual to live in the community, to ensure the individual's health, safety, and welfare in the community, and to prevent the need for institutional services.

(d) A program provider must provide HCS Program services in accordance with an individual's authorized IPC.

(e) A program provider must retain in an individual's record results and recommendations of individualized assessments that support the individual's current need for each service component included in the IPC.

Comments

Source Note: The provisions of this §9.159 adopted to be effective June 1, 2010, 35 TexReg 4441

§9.160: Dads' Review of a Proposed Ipc

(a) DADS reviews a proposed IPC to determine whether to authorize the IPC.

(b) The service coordinator's agreement or disagreement, as required by §9.166(e)(3) of this subchapter (relating to Renewal and Revision of an IPC), with the proposed renewal or revised IPC will be considered in DADS' review of the proposed IPC.

(c) DADS may review supporting documentation specified in §9.159(c) of this subchapter (relating to IPC) at any time to determine if the type and amount of HCS Program services specified in a proposed IPC are appropriate. If requested by DADS:

(1) the MRA must submit to DADS documentation supporting a proposed initial IPC; and

(2) the program provider must submit to DADS documentation supporting a proposed renewal or revised IPC.

(d) Before authorizing a proposed IPC that exceeds 100% of the estimated annualized average per capita cost for ICF/MR services, DADS reviews the IPC to determine if the type and amount of HCS Program services specified in the proposed IPC are appropriate and supported by documentation specified in §9.159(c) of this subchapter. A proposed IPC with such an IPC cost must be submitted to DADS with documentation supporting the IPC, as described in §9.159(c) of this subchapter, before the electronic transmission of the IPC. After reviewing the supporting documentation, DADS may request additional documentation. DADS reviews any additional documentation submitted in accordance with its request and, for an applicant or individual who is eligible for the HCS Program, electronically authorizes the proposed IPC or sends written notification that the proposed IPC has been authorized with modifications.

Comments

Source Note: The provisions of this §9.160 adopted to be effective June 1, 2010, 35 TexReg 4441

§9.161: Loc Determination

(a) An MRA must request an LOC from DADS for an applicant at the time the applicant is enrolled into the HCS Program. The LOC is requested by electronically transmitting a completed MR/RC Assessment to DADS, indicating the recommended LOC, signed and dated by the service coordinator. The electronically transmitted MR/RC Assessment must contain information identical to the information on the signed and dated MR/RC Assessment.

(b) A program provider must request an LOC for an individual from DADS in accordance with this subsection.

(1) Before the expiration of an MR/RC Assessment, the program provider must electronically transmit to DADS a completed MR/RC Assessment, indicating the recommended LOC, that is signed and dated by the program provider.

(2) The program provider must ensure the electronically transmitted MR/RC Assessment contains information that is identical to the information on the signed and dated MR/RC Assessment.

(3) The program provider must, within three calendar days after transmission, provide the service coordinator with a paper copy of the signed and dated MR/RC Assessment.

(c) For an LOC requested in accordance with subsection (b) of this section, within seven calendar days after the MR/RC Assessment is electronically transmitted by the program provider, the service coordinator must review the MR/RC Assessment in CARE and:

(1) enter the service coordinator's name and date in CARE;

(2) enter in CARE whether the service coordinator agrees or disagrees with the MR/RC Assessment; and

(3) if the service coordinator disagrees with the MR/RC Assessment, notify the individual, LAR, DADS, and the program provider of the service coordinator's disagreement in accordance with DADS instructions.

(d) The service coordinator's agreement or disagreement will be considered in DADS' review of an MR/RC Assessment transmitted in accordance with subsection (b) of this section.

(e) For an LOC requested under subsection (a) or (b) of this section, DADS makes an LOC determination in accordance with §9.238 of this chapter (relating to Level of Care I Criteria) and §9.239 of this chapter (relating to ICF/MR Level of Care VIII Criteria) based on DADS' review of information reported on the applicant's or individual's MR/RC Assessment.

(f) Information on the MR/RC Assessment must be supported by current data obtained from standardized evaluations and formal assessments that measure physical, emotional, social, and cognitive factors. The signed and dated MR/RC Assessment and documentation supporting the recommended LOC must be maintained in the individual's record.

(g) DADS approves the LOC or sends written notification:

(1) to the applicant or LAR that the applicant is not eligible for HCS Program services and provides the applicant or LAR with an opportunity to request a fair hearing in accordance with §9.169 of this subchapter (relating to Fair Hearing); and

(2) to the MRA and program provider that the LOC has been denied.

(h) An LOC determination is valid for 364 calendar days after the LOC effective date determined by DADS.

Comments

Source Note: The provisions of this §9.161 adopted to be effective June 1, 2010, 35 TexReg 4441

§9.162: Lapsed Loc

(a) DADS does not pay the program provider for HCS Program services provided during a period of time in which the individual's LOC has lapsed unless a reinstatement of the LOC determination is requested and granted in accordance with this section. DADS does not grant a request for reinstatement of an LOC determination to:

(1) establish program eligibility;

(2) renew an LOC determination;

(3) obtain an LOC determination for a period of time for which an LOC has been denied;

(4) revise an LON; or

(5) obtain an LON determination for a period of time for which an individual's IPC is not current.

(b) The program provider must request reinstatement of an LOC determination within 180 calendar days after the end of any month during which services were provided to the individual while the individual's LOC was lapsed.

(c) The program provider must request reinstatement of an LOC determination in accordance with this subsection.

(1) The program provider must electronically transmit to DADS a completed MR/RC Assessment that is signed and dated by the program provider that includes:

(A) a code "E" in the "Purpose" section; and

(B) the beginning and ending dates of the period of time for which the individual's LOC lapsed.

(2) The program provider must ensure that the electronically transmitted MR/RC Assessment contains information that is identical to the information on the signed and dated MR/RC Assessment.

(3) The program provider must, within three calendar days after submission, provide the service coordinator with a paper copy of the signed and dated MR/RC Assessment.

(d) Within seven calendar days after the MR/RC Assessment is electronically transmitted by the program provider, the service coordinator must review the MR/RC Assessment in CARE and:

(1) enter the service coordinator's name and date in CARE;

(2) enter in CARE whether the service coordinator agrees or disagrees with the MR/RC Assessment; and

(3) if the service coordinator disagrees with the MR/RC Assessment, notify the individual, LAR, DADS, and the program provider of the service coordinator's disagreement in accordance with DADS instructions.

(e) The service coordinator's agreement or disagreement is considered in DADS' review of an MR/RC Assessment transmitted in accordance with subsection (c) of this section.

(f) DADS notifies the program provider of its decision to grant or deny the request for reinstatement of an LOC determination within 45 calendar days after DADS' receipt of the program provider's request.

Comments

Source Note: The provisions of this §9.162 adopted to be effective June 1, 2010, 35 TexReg 4441

§9.163: Lon Assignment

(a) An MRA must request an LON for an applicant from DADS at the time an applicant is enrolled into the HCS Program. The LON is requested by electronically transmitting to DADS a completed MR/RC, indicating the recommended LON, is signed and dated by the service coordinator. The electronically transmitted MR/RC Assessment must contain information identical to the information on the signed and dated MR/RC.

(b) A program provider must request an LON for an individual from DADS in accordance with this subsection.

(1) Before the expiration of an MR/RC Assessment, the program provider must electronically transmit to DADS a completed MR/RC Assessment, indicating the recommended LON, that is signed and dated by the program provider.

(2) The program provider must ensure the electronically transmitted MR/RC Assessment contains information that is identical to the information on the signed and dated MR/RC Assessment.

(3) The program provider must, within three calendar days after submission, provide the service coordinator with a paper copy of the signed and dated MR/RC Assessment.

(4) If applicable, the program provider must submit supporting documentation to DADS as required by §9.164(c) of this subchapter (relating to DADS' Review of LON).

(c) For an LON requested in accordance with subsection (b) of this section, within seven calendar days after the MR/RC Assessment is electronically transmitted by the program provider, the service coordinator must review the MR/RC Assessment in CARE and:

(1) enter the service coordinator's name and date in CARE;

(2) enter in CARE whether the service coordinator agrees or disagrees with the MR/RC Assessment; and

(3) if the service coordinator disagrees with the MR/RC Assessment, notify the individual, LAR, DADS, and the program provider of the service coordinator's disagreement in accordance with DADS instructions.

(d) The service coordinator's agreement or disagreement is considered in DADS' review of an MR/RC Assessment transmitted in accordance with subsection (b) of this section.

(e) The program provider must maintain documentation supporting the recommended LON in the individual's record.

(f) DADS assigns an LON to an individual based on the individual's ICAP service level score, information reported on the individual's MR/RC Assessment, and required supporting documentation. Documentation supporting a recommended LON must be submitted to DADS in accordance with DADS' guidelines.

(g) DADS assigns one of five LONs as follows:

(1) an intermittent LON (LON 1) is assigned if the individual's ICAP service level score equals 7, 8, or 9;

(2) a limited LON (LON 5) is assigned if the individual's ICAP service level score equals 4, 5, or 6;

(3) an extensive LON (LON 8) is assigned if the individual's ICAP service level score equals 2 or 3;

(4) a pervasive LON (LON 6) is assigned if the individual's ICAP service level score equals 1; and

(5) regardless of an individual's ICAP service level score, a pervasive plus LON (LON 9) is assigned if the individual meets the criteria set forth in subsection (i) of this section.

(h) An LON 1, 5, or 8, determined in accordance with subsection (g) of this section, is increased to the next LON by DADS, due to an individual's dangerous behavior, if supporting documentation submitted to DADS proves that:

(1) the individual exhibits dangerous behavior that could cause serious physical injury to the individual or others;

(2) a written behavior support plan has been implemented that meets DADS guidelines and is based on ongoing written data, targets the dangerous behavior with individualized objectives, and specifies intervention procedures to be followed when the behavior occurs;

(3) more service providers are needed and available than would be needed if the individual did not exhibit dangerous behavior;

(4) service providers are constantly prepared to physically prevent the dangerous behavior or intervene when the behavior occurs; and

(5) the individual's MR/RC Assessment is correctly scored with a "1" in the "Behavior" section.

(i) DADS assigns an LON 9 if supporting documentation submitted to DADS proves that:

(1) the individual exhibits extremely dangerous behavior that could be life threatening to the individual or to others;

(2) a written behavior support plan has been implemented that meets DADS guidelines and is based on ongoing written data, targets the extremely dangerous behavior with individualized objectives, and specifies intervention procedures to be followed when the behavior occurs;

(3) management of the individual's behavior requires a service provider to exclusively and constantly supervise the individual during the individual's waking hours, which must be at least 16 hours per day;

(4) the service provider assigned to supervise the individual has no other duties during such assignment; and

(5) the individual's MR/RC Assessment is correctly scored with a "2" in the "Behavior" section.

(j) The program provider must re-administer the ICAP to an individual under a circumstance described in paragraphs (1) - (3) of this subsection and must submit a completed MR/RC Assessment to DADS recommending a revision of the individual's LON assignment if the ICAP results and the MR/RC Assessment indicate a revision of the individual's LON assignment may be appropriate. The ICAP must be re-administered:

(1) within three years after the individual's enrollment and every third year thereafter;

(2) if changes in the individual's functional skills or behavior occur that are not expected to be of short duration or cyclical in nature; or

(3) if the individual's skills and behavior are inconsistent with the individual's assigned LON.

Comments

Source Note: The provisions of this §9.163 adopted to be effective June 1, 2010, 35 TexReg 4441

§9.164: Dads' Review of Lon

(a) DADS may review a recommended or assigned LON at any time to determine if it is appropriate. If DADS reviews an LON, documentation supporting the LON must be submitted to DADS in accordance with DADS' request. DADS may modify an LON and recoup or deny payment based on its review.

(b) Before assigning an LON, DADS reviews documentation supporting the recommended LON if:

(1) an LON is requested that is an increase from the individual's current LON;

(2) an LON 9 is requested in accordance with §9.163(i) of this subchapter (relating to LON Assignment); or

(3) an LON is requested in accordance with §9.163(h) of this subchapter.

(c) Documentation supporting a recommended LON described in subsection (b) of this section must be submitted to DADS and received by DADS within seven calendar days after electronically transmitting the recommended LON.

(1) Within 21 calendar days after receiving the supporting documentation:

(A) DADS requests additional documentation;

(B) electronically approves the recommended LON; or

(C) sends written notification that the recommended LON has been denied.

(2) DADS reviews any additional documentation submitted in accordance with DADS' request and:

(A) electronically approves the recommended LON; or

(B) sends written notification that the recommended LON has been denied to the program provider, the service coordinator, and the individual or LAR.

Comments

Source Note: The provisions of this §9.164 adopted to be effective June 1, 2010, 35 TexReg 4441

§9.165: Reconsideration of Lon Assignment

(a) If the program provider disagrees with an LON assignment, the program provider may request that DADS reconsider the assignment.

(b) The program provider may receive reconsideration only if the program provider submitted documentation supporting the recommended LON as required by §9.164(c) of this subchapter (relating to DADS' Review of LON).

(c) To request reconsideration of an LON assignment, the program provider must submit a written request for reconsideration to DADS within 10 calendar days after receipt of the notice that the recommended LON was denied. A program provider may send DADS documentation, in addition to that required by §9.164(c) of this subchapter, to support the request for reconsideration of an LON assignment.

(d) Within 21 calendar days after receipt of a request for reconsideration, DADS electronically approves the recommended LON or sends written notification that the recommended LON has been denied to the program provider, the service coordinator, and the individual or LAR.

Comments

Source Note: The provisions of this §9.165 adopted to be effective June 1, 2010, 35 TexReg 4441

§9.166: Renewal and Revision of an Ipc

(a) Renewal of the IPC. At least annually and before the expiration of an individual's IPC, the individual's IPC must be renewed in accordance with this subsection and with DADS' instructions.

(1) At least 60 but no more than 90 calendar days before the expiration of an individual's IPC, a program provider must notify the service coordinator that the individual's IPC must be renewed.

(2) Upon notification in accordance with paragraph (1) of this subsection, the service planning team must review the individual's PDP and update it, if necessary. If the PDP is updated, the service coordinator must send a copy of the updated PDP to the program provider within 10 calendar days after the PDP is updated.

(3) At least 30 but no more than 60 calendar days before the expiration of the individual's IPC, the service planning team and the program provider must review the PDP and develop the proposed renewal IPC, including completion of the CDS portion of the proposed renewal IPC, if applicable, and the non-HCS Program services.

(4) The program provider must, before the effective date of the proposed renewal IPC, develop an implementation plan for HCS Program services that is based on the individual's PDP and proposed renewal IPC.

(5) Within seven calendar days after development of the proposed renewal IPC as required by paragraph (3) of this subsection, the program provider must comply with the requirements in subsection (e)(1) and (2) of this section.

(6) Within seven calendar days after the program provider electronically transmits the proposed renewal IPC to DADS as required by subsection (e)(2) of this section, the service coordinator must comply with the requirements in subsection (e)(3) of this section.

(7) The program provider must provide HCS Program services in accordance with an implementation plan that is based on the individual's PDP and authorized renewal IPC.

(b) Revisions to the IPC. The service coordinator or the program provider may determine whether an individual's IPC needs to be revised to add a new HCS Program service or change the amount of an existing service.

(1) The service coordinator must notify the program provider if the service coordinator determines that the IPC needs to be revised.

(2) The program provider must notify the service coordinator if the program provider determines that the IPC needs to be revised.

(3) Within 14 calendar days after the notification required by paragraph (1) or (2) of this subsection:

(A) the service planning team and the program provider must develop a proposed revised IPC;

(B) the service planning team must revise the PDP, if appropriate, and if the PDP is not revised, the service coordinator must document the reasons for the proposed IPC revision;

(C) the program provider must revise the implementation plan for HCS Program services that is based on the individual's PDP and proposed revised IPC; and

(D) the program provider must comply with the requirements in subsection (e)(1) and (2) of this section.

(4) Within seven calendar days after the program provider electronically transmits the proposed revised IPC to DADS as required by subsection (e)(2) of this section, the service coordinator must comply with the requirements in subsection (e)(3) of this section.

(5) The program provider must provide HCS Program services in accordance with an implementation plan that is based on the individual's PDP and the authorized revised IPC.

(c) Revision of IPC before delivery of services. Except as provided by subsection (d) of this section, if an individual's service planning team and program provider determine that the IPC must be revised to add a new HCS Program service or change the amount of an existing service, the program provider must revise the IPC in accordance with subsection (b) of this section before the delivery of a new or increased service.

(d) Emergency provision of services and revision of the IPC.

(1) If an emergency necessitates the provision of an HCS Program service to ensure the individual's health and safety and the service is not on the IPC or exceeds the amount on the IPC, the program provider may provide the service before revising the IPC. The program provider must, within one business day after providing the service:

(A) document:

(i) the circumstances that necessitated providing the new HCS Program service or the increase in the amount of the existing HCS Program service; and

(ii) the type and amount of the service provided;

(B) notify the service coordinator of the emergency provision of the service and that the IPC must be revised; and

(C) upon request, provide a copy of the documentation required by subparagraph (A) of this paragraph to the service coordinator.

(2) Within seven calendar days after providing the service:

(A) the service planning team and the program provider must develop a proposed revised IPC;

(B) the service planning team must revise the PDP, if appropriate;

(C) the program provider must revise the implementation plan for HCS Program services that is based on the individual's PDP and proposed revised IPC; and

(D) the program provider must comply with the requirements in subsection (e)(1) and (2) of this section.

(3) Within seven calendar days after the program provider electronically transmits the proposed revised IPC to DADS as required by subsection (e)(2) of this section, the service coordinator must comply with the requirements in subsection (e)(3) of this section.

(4) The program provider must provide HCS Program services in accordance with an implementation plan that is based on the individual's PDP and the authorized revised IPC.

(e) Submitting a proposed renewal and revised IPC to DADS. A proposed renewal or revised IPC must be submitted to DADS for authorization in accordance with this subsection.

(1) The program provider must:

(A) sign and date the proposed renewal or revised IPC demonstrating agreement that the service components will be provided to the individual; and

(B) ensure that a proposed renewal or revised IPC is signed and dated by the individual or LAR.

(2) The program provider must electronically transmit a proposed renewal or revised IPC to DADS. The program provider must keep the original proposed renewal or revised IPC in the individual's record and, within three calendar days after electronic transmission, ensure the service coordinator receives a paper copy of the signed proposed renewal or revised IPC. The program provider must ensure the electronically transmitted proposed renewal or revised IPC contains information identical to that on the original proposed renewal or revised IPC.

(3) The service coordinator must review the electronically transmitted proposed renewal or revised IPC and:

(A) enter the service coordinator's name and date in CARE;

(B) enter in CARE whether the service coordinator agrees or disagrees that the requirements described in §9.159(c) of this subchapter (relating to IPC) have been met; and

(C) if the service coordinator disagrees that the requirements described in §9.159(c) of this subchapter have been met, notify the individual or LAR, the program provider, and DADS of the service coordinator's disagreement in accordance with DADS' instructions.

Comments

Source Note: The provisions of this §9.166 adopted to be effective June 1, 2010, 35 TexReg 4441

§9.167: Permanency Planning

(a) Permanency planning at enrollment. The provisions contained in this subsection apply to an applicant under 22 years of age moving from a family setting and requesting supervised living or residential support.

(1) Information. The MRA must, before enrollment, inform the applicant and LAR:

(A) of the benefits of living in a family or community setting;

(B) that the placement of the applicant is considered temporary; and

(C) that an ongoing permanency planning process is required.

(2) Permanency planning activities.

(A) The MRA must convene a permanency planning meeting with the LAR and, if possible, the applicant, before enrollment.

(B) Before the permanency planning meeting, the MRA must review the applicant's records, and, if possible, meet the applicant.

(C) During the permanency planning meeting, the meeting participants must discuss and choose one of the following goals:

(i) for an applicant under 18 years of age:

(I) to live in the applicant's family home where the natural supports and strengths of the applicant's family are supplemented, as needed, by activities and supports provided or facilitated by the MRA or program provider; or

(II) to live in a family-based alternative in which a family other than the applicant's family:

(-a-) has received specialized training in the provision of support and in-home care for an individual under 18 years of age with mental retardation or a related condition;

(-b-) will provide a consistent and nurturing environment in a family home that supports a continued relationship with the applicant's family to the extent possible; and

(-c-) will provide an enduring, positive relationship with a specific adult who will be an advocate for the applicant; or

(ii) for an applicant 18-22 years of age to live in a setting chosen by the applicant or LAR in which the applicant's natural supports and strengths are supplemented by activities and supports provided or facilitated by the MRA or program provider, and to achieve a consistent and nurturing environment in the least restrictive setting, as defined by the applicant and LAR.

(D) To accomplish the goal chosen in accordance with subparagraph (C) of this paragraph, the meeting participants must discuss and identify:

(i) the problems or issues that led the applicant or LAR to request supervised living or residential support;

(ii) the applicant's daily support needs;

(iii) for the applicant under 18 years of age:

(I) barriers to having the applicant reside in the family home;

(II) supports that would be necessary for the applicant to remain in the family home; and

(III) actions that must be taken to overcome the barriers and provide the necessary supports;

(iv) for an applicant 18-22 years of age, the barriers to moving to a consistent and nurturing environment as defined by the applicant and LAR;

(v) the importance for the applicant to live in a long-term nurturing relationship with a family;

(vi) alternatives to the applicant living in an institutional setting;

(vii) the applicant's and LAR's need for information and preferences regarding those alternatives;

(viii) how, after the applicant's enrollment, to facilitate regular contact between the applicant and the applicant's family, and, if desired by the applicant and family, between the applicant and advocates and friends in the community to continue supportive and nurturing relationships;

(ix) natural supports and family strengths that will assist in accomplishing the identified permanency planning goal;

(x) activities and supports that can be provided by the family, MRA, or program provider to achieve the permanency planning goal;

(xi) assistance needed by the applicant's family:

(I) in maintaining a nurturing relationship with the applicant; and

(II) preparing the family for the applicant's eventual return to the family home or move to a family-based alternative; and

(xii) action steps, both immediate and long term, for achieving the permanency plan goal.

(E) The MRA must make reasonable accommodations to promote the participation of the LAR in a permanency planning meeting, including:

(i) conducting a meeting in person or by telephone, as mutually agreed upon by the MRA and LAR;

(ii) conducting a meeting at a time and, if the meeting is in person, at a location that is mutually agreed upon by the MRA and LAR;

(iii) if the LAR has a disability, providing reasonable accommodations in accordance with the Americans with Disabilities Act, including providing an accessible meeting location or a sign language interpreter, if appropriate; and

(iv) providing a language interpreter, if appropriate.

(F) The MRA must develop a permanency plan using, as appropriate:

(i) the Permanency Planning Instrument for Children Under 18 Years of Age, found at www.dads.state.tx.us; or

(ii) the Permanency Planning Instrument for Individuals 18-22 Years of Age, found at www.dads.state.tx.us.

(G) The MRA must:

(i) complete the Permanency Planning Review Screen in CARE before enrollment;

(ii) keep a copy of the Permanency Planning Review Approval Status View Screen from CARE in the applicant's record; and

(iii) provide a copy of the permanency plan to the program provider, the applicant, and the LAR.

(3) Volunteer advocate.

(A) The MRA must inform the applicant and LAR that they may request a volunteer advocate to assist in permanency planning. The applicant or LAR may:

(i) select a person who is not employed by or under contract with the MRA or a program provider; or

(ii) request the MRA to designate a volunteer advocate.

(B) If an applicant or LAR requests that the MRA designate a volunteer advocate or the MRA cannot locate the applicant's LAR, the MRA must attempt to designate a volunteer advocate to assist in permanency planning who is, in order of preference:

(i) an adult relative who is actively involved with the applicant;

(ii) a person who:

(I) is part of the applicant's natural supports; and

(II) is not employed by or under contract with the MRA or a provider; or

(iii) a person or a child advocacy organization representative who:

(I) is knowledgeable about community services and supports;

(II) is familiar with the permanency planning philosophy and processes; and

(III) is not employed by or under contract with the MRA or a provider.

(C) If the MRA is unable to locate a volunteer advocate locally, the MRA must request assistance from a statewide advocacy organization in identifying an available volunteer advocate who meets the requirements described in subparagraph (B)(iii) of this paragraph. If the statewide advocacy organization is unable to assist the MRA in identifying a volunteer advocate, the MRA must document all efforts to designate a volunteer advocate in accordance with subparagraph (B) of this paragraph.

(b) Permanency planning reviews. An MRA must, within six months after the initial permanency planning meeting and every six months thereafter until an individual either turns 22 years of age or is no longer receiving supervised living or residential support:

(1) provide written notice to the LAR of a meeting to conduct a review of the individual's permanency plan no later than 21 calendar days before the meeting date and include a request for a response from the LAR;

(2) convene a meeting to review the individual's current permanency plan in accordance with subsection (a)(2)(C) - (E) of this section, with an emphasis on changes or additional information gathered since the last permanency plan was developed;

(3) develop a permanency plan in accordance with subsection (a)(2)(F) of this section;

(4) perform actions regarding a volunteer advocate as described in subsection (a)(3) of this section;

(5) complete the Permanency Planning Review Screen in CARE within 10 calendar days after the meeting;

(6) ensure that approval for the individual to continue to reside in an institution is obtained every six months from the DADS commissioner and the HHSC executive commissioner;

(7) keep a copy of the Permanency Planning Review Approval Status View Screen from CARE in the individual's record;

(8) provide a copy of the permanency plan to the program provider, the individual, and the LAR; and

(9) if the MRA determines it is unable to locate the parent or LAR, notify the service coordinator of such determination.

(c) Provision of supervised living or residential support after enrollment. If an MRA receives information that an individual under 22 years of age who has been enrolled in the HCS Program moved from a family setting and started receiving supervised living or residential support, the MRA must, within the timeframes described in the performance contract between DADS and the MRA:

(1) provide an explanation of services and supports and other information in accordance with §9.158(e)(1) of this subchapter (relating to Process for Enrollment of Applicants); and

(2) take actions to conduct permanency planning as described in subsection (a) of this section.

Comments

Source Note: The provisions of this §9.167 adopted to be effective June 1, 2010, 35 TexReg 4441

§9.168: Cds

(a) If the supported home living service component or the respite service component is included in an applicant's PDP, the MRA must:

(1) inform the applicant or LAR of the applicant's right to participate in CDS or discontinue participation in CDS at any time, except as provided in §41.405(a) of this title (relating to Suspension of Participation in CDS);

(2) inform the applicant or LAR that the applicant or LAR may choose to have supported home living or respite, or both, provided through CDS;

(3) provide the applicant or LAR a copy of the Consumer Directed Services Option Overview, Consumer Directed Services Responsibilities, and Employee Qualification Requirements forms, which are found at www.dads.state.tx.us and which contain information about CDS, including a description of financial management services and support consultation;

(4) provide an oral explanation of the information contained in the Consumer Directed Services Option Overview, Consumer Directed Services Responsibilities, and Employee Qualification Requirements forms to the applicant or LAR; and

(5) provide the applicant or LAR the opportunity to choose to participate in CDS and document the applicant's or LAR's choice on the Consumer Participation Choice form, which is found at www.dads.state.tx.us.

(b) If an applicant or LAR chooses to participate in CDS, the service coordinator must:

(1) provide names and contact information to the applicant or LAR regarding all CDSAs providing services in the MRA's local service area;

(2) document the applicant's or LAR's choice of CDSA on the Consumer Participation Choice form;

(3) document, in the individual's PDP, a description of the service component provided through CDS; and

(4) document, in the individual's PDP, a description of the individual's service back-up plan, if a back-up plan is required by Chapter 41 of this title (relating to Consumer Directed Services Option).

(c) For an individual who is receiving supported home living or respite, the service coordinator must, at least annually:

(1) inform the individual or LAR of the individual's right to participate in CDS or discontinue participation in CDS at any time, except as provided in §41.405(a) of this title (relating to Suspension of Participation in CDS);

(2) provide the individual or LAR a copy of the Consumer Directed Services Option Overview, Consumer Directed Services Responsibilities, and Employee Qualification Requirements forms, which are found at www.dads.state.tx.us and which contain information about CDS, including financial management services and support consultation;

(3) provide an oral explanation of the information contained in the Consumer Directed Services Option Overview, Consumer Directed Services Responsibilities and Employee Qualification Requirements forms to the individual or LAR; and

(4) provide the individual or LAR the opportunity to choose to participate in CDS and document the individual's choice on the Consumer Participation Choice form, which is found at www.dads.state.tx.us.

(d) If an individual or LAR chooses to participate in CDS, the service coordinator must:

(1) provide names and contact information to the individual or LAR regarding all CDSAs providing services in the MRA's local service area;

(2) document the individual's or LAR's choice of CDSA on the Consumer Participation Choice form;

(3) document, in the individual's PDP, a description of the service component provided through CDS;

(4) document, in the individual's PDP, a description of the individual's service back-up plan, if a back-up plan is required by Chapter 41 of this title; and

(5) notify the program provider of the individual's or LAR's decision to participate in CDS.

(e) The service coordinator must document in the individual's PDP that the information described in subsections (c) and (d)(1) of this section was provided to the individual or LAR.

(f) For an individual participating in CDS, the service coordinator must recommend that DADS terminate the individual's participation in the CDS option (that is, terminate financial management services and support consultation) if the service coordinator determines that:

(1) the individual's continued participation in CDS poses a significant risk to the individual's health or safety; or

(2) the individual or LAR has not complied with Chapter 41, Subchapter B of this title (relating to Responsibilities of Employers and Designated Representatives).

(g) If the service coordinator makes a recommendation in accordance with subsection (f) of this section, the service coordinator must:

(1) document:

(A) a description of the service recommended for termination;

(B) the reasons why termination is recommended;

(C) a description of the attempts to resolve the issues before recommending termination;

(2) obtain other supporting documentation, as appropriate; and

(3) notify the program provider that the IPC needs to be revised.

(h) Within seven calendar days after notification in accordance with subsection (g)(3) of this section:

(1) the service coordinator and the program provider must comply with the requirements described in §9.166(d)(2)(A) - (D) of this subchapter (relating to Renewal and Revision of an IPC); and

(2) the service coordinator must send the documentation described in subsection (g)(1) of this section to DADS.

Comments

Source Note: The provisions of this §9.168 adopted to be effective June 1, 2010, 35 TexReg 4441

§9.169: Fair Hearing

(a) An applicant whose request for eligibility for the HCS Program is denied or is not acted upon with reasonable promptness, or an individual whose services have been terminated, suspended, denied, or reduced by DADS is entitled to a fair hearing in accordance with 1 TAC Chapter 357, Subchapter A (relating to Uniform Fair Hearing Rules).

(b) Only a service coordinator may request that DADS terminate an individual's HCS Program services.

Comments

Source Note: The provisions of this §9.169 adopted to be effective March 1, 2000, 25 TexReg 1649; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841; amended to be effective June 1, 2006, 31 TexReg 4442; amended to be effective June 1, 2010, 35 TexReg 4441

§9.170: Reimbursement

(a) Program provider reimbursement.

(1) DADS pays the program provider for service components as follows:

(A) Supported home living, specialized therapies, nursing, respite, and supported employment are paid for in accordance with the reimbursement rate for the specific service component.

(B) Foster/companion care, residential support, supervised living, and day habilitation are paid for in accordance with the individual's LON and the reimbursement rate for the specific service component.

(C) Adaptive aids, minor home modifications, and dental treatment are paid for based on the actual cost of the item and, if requested, a requisition fee in accordance with the HCS Program Billing Guidelines.

(2) The program provider must accept DADS' payment for a service component as payment in full for the service component.

(3) If the program provider disagrees with the enrollment date of an individual as determined by DADS, the program provider must notify DADS in writing of its disagreement, including the reasons for the disagreement, within 180 calendar days after the end of the month in which the program provider receives the enrollment letter. DADS reviews the information submitted by the program provider and notifies the program provider of its determination regarding the individual's enrollment date.

(4) The program provider must prepare and submit claims for service components in accordance with this subchapter, the HCS Program Provider Agreement and the HCS Program Billing Guidelines, which are found at www.dads.state.tx.us.

(5) The program provider must:

(A) submit a claim, electronically, to DADS for day habilitation, foster/companion care, supported home living, residential support, supervised living, respite, supported employment, specialized therapies, and nursing; and

(B) obtain an authorization for payment from DADS, in accordance with the HCS Program Billing Guidelines and paragraph (8) of this subsection, and submit a claim, electronically, to DADS for adaptive aids, minor home modifications, and dental treatment.

(6) For a service component listed in paragraph (5)(A) of this subsection, the program provider must:

(A) submit a claim to DADS by the latest of the following dates:

(i) 95 calendar days after the end of the month in which the service component was provided;

(ii) 45 calendar days after the date of the enrollment approval letter issued by DADS; or

(iii) 95 calendar days after the end of the month in which the program provider receives a dated response denying payment for the service component from a source other than the HCS Program to a correctly submitted request to that source for payment for the service component; and

(B) if DADS rejects a submitted claim, submit a corrected claim by one of the following dates, whichever is later:

(i) the 180th calendar day after the end of the month in which the service component or subcomponent was provided; or

(ii) the 45th calendar day after the date of the notification that the claim has been rejected.

(7) If an individual's HCS Program services are suspended or terminated:

(A) the program provider may submit a claim for day habilitation, supported home living, respite, supported employment, specialized therapies, and nursing for the day of the individual's suspension or termination; and

(B) the program provider must not submit a claim for foster/companion care, residential support, or supervised living for the day of the individual's suspension or termination.

(8) For a service component listed in paragraph (5)(B) of this subsection, the program provider must:

(A) submit a request for authorization for payment to DADS within 95 calendar days after the end of the month in which:

(i) the individual received the adaptive aid or dental treatment; or

(ii) the minor home modification was completed;

(B) if DADS rejects a request for authorization for payment, submit a corrected request for authorization for payment by one of the following dates, whichever is later:

(i) the 180th calendar day after the end of the month in which:

(I) the individual received the adaptive aid or dental treatment; or

(II) the minor home modification was completed; or

(ii) the 45th calendar day after the date of the notification that the authorization for payment has been rejected;

(C) after obtaining authorization for payment from DADS, submit a claim within 45 calendar days after authorization for payment is given by DADS; and

(D) if DADS rejects a submitted claim, submit a corrected claim by one of the following dates, whichever is later:

(i) the 180th calendar day after the end of the month in which:

(I) the individual received the adaptive aid or dental treatment; or

(II) the minor home modification was completed; or

(ii) the 45th calendar day after the date of the notification that the claim has been rejected.

(9) If the program provider submits a claim for an adaptive aid or dental treatment, the program provider must submit documentation that sources of payment other than the HCS Program for which the individual may be eligible, including Medicare, Medicaid (such as Texas Health Steps and Home Health), DARS, the public school system, and private insurance, denied the submitted claim. Such documentation includes evidence that a proper, complete, and timely request for payment was made to the other payment source and that payment was not made.

(10) If the program provider submits a claim for an adaptive aid that costs $500 or more or for a minor home modification that costs $1000 or more, the program provider must submit an individualized assessment conducted by a professional qualified to assess whether the aid or modification is necessary and appropriate to address the individual's specific needs.

(11) DADS does not pay the program provider for a service component or recoups any payments made to the program provider for a service component if:

(A) the individual receiving the service component is, at the time the service component was provided, ineligible for the HCS program or Medicaid benefits, or was an inpatient of a hospital, nursing facility, or ICF/MR;

(B) the service component is provided to an individual during a period of time for which there is not a signed, dated, and authorized IPC for the individual;

(C) the service component is not included on the signed, dated, and authorized IPC of the individual in effect at the time the service component was provided, except as permitted by §9.166(d) of this subchapter (relating to Renewal and Revision of an IPC);

(D) the service component provided does not meet the service definition or is not provided in accordance with the HCS Program Billing Guidelines;

(E) the program provider provides the supervised living or residential support service component in a residence in which four individuals or other person receiving similar services live without DADS' approval as required in §9.188 of this subchapter (relating to DADS' Approval of Residences);

(F) the service component is not documented in accordance with the HCS Program Billing Guidelines;

(G) the claim for the service component is not prepared and submitted in accordance with the HCS Program Billing Guidelines;

(H) an individualized assessment as required by paragraph (10) of this subsection is not submitted by the program provider;

(I) DADS determines that the service component would have been paid for by a source other than the HCS Program if the program provider had submitted to the other source a proper, complete, and timely request for payment for the service component;

(J) the service component is provided during a period of time for which there is not a signed and dated MR/RC Assessment for the individual;

(K) the service component is provided during a period of time for which the individual did not have an LOC determination;

(L) the service component is provided by a service provider who does not meet the qualifications to provide the service component as delineated in the HCS Program Billing Guidelines;

(M) the service component is not provided in accordance with a signed, dated, and authorized IPC meeting the requirements set forth in §9.159(c) of this subchapter (relating to IPC);

(N) the service component is not provided in accordance with the individual's PDP or implementation plan;

(O) the service component of foster/companion care, residential support, or supervised living is provided on the day of the individual's suspension or termination of HCS Program services;

(P) the service component is provided before the individual's enrollment date into the HCS Program; or

(Q) the service component was paid at an incorrect LON because the MR/RC Assessment electronically transmitted to DADS does not contain information identical to information on the signed and dated MR/RC Assessment.

(12) The program provider must keep any records necessary to disclose the extent of the service components provided by the program provider and, on request, provide DADS any such records and any information regarding claims filed by the program provider.

(13) The program provider must refund to DADS any overpayment made to the program provider within 60 calendar days after the program provider's discovery of the overpayment or receipt of a notice of such discovery from DADS, whichever is earlier.

(14) DADS conducts billing and payment reviews to monitor a program provider's compliance with this subchapter and the HCS Program Billing Guidelines. DADS conducts such reviews in accordance with the Billing and Payment Review Protocol set forth in the HCS Program Billing Guidelines. As a result of a billing and payment review, DADS may:

(A) recoup payments from a program provider; and

(B) based on the amount of unverified claims, require a program provider to develop and submit, in accordance with DADS instructions, a corrective action plan that improves the program provider's billing practices.

(15) A corrective action plan required by DADS in accordance with paragraph (14)(B) of this subsection must:

(A) include:

(i) the reason the corrective action plan is required;

(ii) the corrective action to be taken;

(iii) the person responsible for taking each corrective action; and

(iv) a date by which the corrective action will be completed that is no later than 90 calendar days after the date the program provider is notified the corrective action plan is required;

(B) be submitted to DADS within 30 calendar days after the date the program provider is notified the corrective action plan is required; and

(C) be approved by DADS before implementation.

(16) Within 30 calendar days after the corrective action plan is received by DADS, DADS notifies the program provider if a corrective action plan is approved or if changes to the plan are required.

(17) If DADS requires a program provider to develop and submit a corrective action plan in accordance with paragraph (14)(B) of this subsection and the program provider requests an administrative hearing for the recoupment in accordance with §9.186 of this subchapter (relating to Program Provider's Right to Administrative Hearing), the program provider is not required to develop or submit a corrective action plan while a hearing decision is pending. DADS notifies the program provider if the requirement to submit a corrective action plan or the content of such a plan changes based on the outcome of the hearing.

(18) If the program provider does not submit the corrective action plan or complete the required corrective action within the time frames described in paragraph (15) of this subsection, DADS may impose a vendor hold on payments due to the program provider under the program provider agreement until the program provider takes the corrective action.

(19) If the program provider does not submit the corrective action plan or complete the required corrective action within 30 calendar days after the date a vendor hold is imposed in accordance with paragraph (18) of this subsection, DADS may terminate the program provider agreement.

(b) CDSA reimbursement. For an individual participating in CDS, DADS pays the CDSA for the following service components in accordance with the reimbursement rate established by HHSC:

(1) financial management services;

(2) support consultation, if requested by the individual or LAR;

(3) supported home living, if the individual or LAR chooses it to be provided through CDS; and

(4) respite, if the individual or LAR chooses it to be provided through CDS.

Comments

Source Note: The provisions of this §9.170 adopted to be effective March 1, 2000, 25 TexReg 1649; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841; amended to be effective June 1, 2006, 31 TexReg 4442; amended to be effective March 1, 2007, 32 TexReg 537; amended to be effective June 1, 2010, 35 TexReg 4441

§9.171: Program Provider Certification Review and Residential Visit

(a) The program provider must be in continuous compliance with the HCS Program certification principles contained in §§9.172 - 9.174 and §§9.177 - 9.179 of this subchapter (relating to Certification Principles: Mission, Development, and Philosophy of Program Operations; Certification Principles: Rights of Individuals; Certification Principles: Service Delivery; Certification Principles: Staff Member and Service Provider Requirements; Certification Principles: Quality Assurance; and Certification Principles: Restraint).

(b) DADS conducts on-site certification reviews of the program provider to evaluate evidence of the program provider's compliance with certification principles. Based on a review, DADS takes action as described in §9.185 of this subchapter (relating to Certification Processes).

(c) Following the initial on-site certification review by DADS conducted in accordance with Subchapter Q of this chapter (relating to Enrollment of Medicaid Waiver Program Providers), DADS conducts an on-site certification review at least annually.

(d) DADS certifies a program provider for a period of no more than 365 calendar days after completion of an initial or annual certification review conducted in accordance with §9.185.

(e) DADS may conduct announced or unannounced reviews of the program provider at any time.

(f) During any review, including a follow-up review or a review in which corrective action from a previous review is being evaluated, DADS may review the HCS Program services provided to any individual to determine if the program provider is in compliance with the certification principles.

(g) DADS conducts an exit conference at the end of all on-site reviews, at a time and location determined by DADS, to inform the program provider of DADS' findings, determination, any proposed actions, and any actions required of the program provider.

(h) DADS conducts, at least annually, unannounced visits of each residence in which foster/companion care, residential support, or supervised living is provided to verify that the residence provides an environment that complies with DADS Waiver Survey and Certification Residential Checklist, which is found at www.dads.state.tx.us.

(i) Based on the information obtained from a visit described in subsection (h) of this section, DADS may:

(1) require the program provider to submit evidence of corrective action; or

(2) conduct a review of the program provider in accordance with this section.

Comments

Source Note: The provisions of this §9.171 adopted to be effective March 1, 2000, 25 TexReg 1649; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841; amended to be effective June 1, 2006, 31 TexReg 4442; amended to be effective June 1, 2010, 35 TexReg 4441

§9.172: Certification Principles: Mission, Development, and Philosophy of Program Operations

The program provider must:

(1) implement a teaching and training philosophy that emphasizes improved, independent functioning for each individual;

(2) ensure that each individual's humanity and dignity is respected;

(3) ensure that the rights of the individual, as exercised by the individual or the LAR on behalf of the individual, are protected;

(4) encourage the individual, the individual's LAR, and family members, with the consent of the individual or the individual's LAR, to participate in making choices about where the individual will live, attend school, work, and take part in leisure activities; and

(5) support the individual in person-directed planning and participate, upon request of the individual or LAR, in a meeting of the service planning team.

Comments

Source Note: The provisions of this §9.172 adopted to be effective March 1, 2000, 25 TexReg 1649; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841; amended to be effective June 1, 2010, 35 TexReg 4441

§9.173: Certification Principles: Rights of Individuals

(a) The program provider must assist the:

(1) individual, or the LAR on behalf of the individual, in exercising the same rights and responsibilities exercised by people without disabilities; and

(2) LAR or family members in encouraging the individual to exercise the same rights and responsibilities exercised by people without disabilities.

(b) The program provider must protect and promote the following rights of the individual:

(1) to manage, be trained to manage, or have assistance in managing financial affairs upon documentation of the individual's written request for assistance;

(2) to access public accommodations;

(3) to be informed of requirements for participation;

(4) to be informed both orally and in writing of all the HCS Program services available and rules pertaining to the individual's enrollment and participation in the program provider's program, including those related to the use of restraint, as well as any changes in these that occur;

(5) to be informed of the individual's IPC and implementation plan, including any restrictions affecting the individual's rights;

(6) to participate in decisions and be informed of the reasons for decisions regarding plans for enrollment, service termination, transfer, relocation, or denial of HCS Program services;

(7) to be informed about the individual's own health, mental condition, and related progress;

(8) to be informed of the name and qualifications of any person serving or treating the individual and to choose among various available service providers;

(9) to receive visitors without prior notice to the program provider unless such rights are contraindicated by the individual's rights or the rights of other individuals;

(10) to have privacy in visitation with family and other visitors;

(11) to make and receive telephone calls;

(12) to send and to receive sealed and uncensored mail;

(13) to attend religious activities of choice;

(14) to participate in developing a pre-discharge plan that addresses assistance for the individual after he or she leaves the program;

(15) to be free from the use of unauthorized restraints;

(16) to live in a normative residential living environment;

(17) to access free public schooling according to the Texas Education Code;

(18) to live where the individual is within proximity of and can access treatment and services that are best suited to meet the individual's needs and abilities and enhance that individual's strengths;

(19) to have a personalized IPC and implementation plan based on individualized assessments that meet the individual's needs and abilities and enhance that individual's strengths;

(20) to help decide what the implementation plan will be;

(21) to be informed as to the progress or lack of progress being made in the execution of the implementation plan;

(22) to choose from the same services that are available to all community members;

(23) to be evaluated as needed, but at least annually, to determine the individual's strengths, needs, preferences, and appropriateness of the implementation plan;

(24) to complain at any time to a staff member or service provider;

(25) to receive appropriate support and encouragement from a staff member or service provider if the individual dislikes or disagrees with the services being rendered or thinks that his or her rights are being violated;

(26) to live free from abuse, neglect or exploitation in a healthful, comfortable, and safe environment;

(27) to participate in decisions regarding the individual's living environment, including location, furnishings, other individuals residing in the residence, and moves to other residential locations;

(28) to have service providers who are responsive to the individual and, at the same time, are responsible for the overall functioning of the HCS Program;

(29) to have active personal assistance in exercising civil and self-advocacy rights attainment by provisions for:

(A) complaints;

(B) voter registration;

(C) citizenship information and education;

(D) advocacy services; and

(E) guardianship;

(30) to receive counseling concerning the use of money;

(31) to possess and to use money in personal and individualized ways or be learning to do so;

(32) to access all financial records regarding the individual's funds;

(33) to have privacy during treatment and care of personal needs;

(34) to have privacy during visits by his or her spouse if living apart;

(35) to share a room when both the husband and wife are living in the same residence;

(36) to be free from serving as a source of labor when residing with persons other than family members;

(37) to communicate, associate, and meet privately with individuals of his or her choice, unless this violates the rights of another individual;

(38) to participate in social, recreational, and community group activities;

(39) to have his or her LAR involved in activities, including:

(A) being informed of all rights and responsibilities when the individual is enrolled in the program provider's program, as well as any changes in rights or responsibilities before they become effective;

(B) participating in the planning for HCS Program services; and

(C) advocating for all rights of the individual;

(40) to be informed of the individual's option to transfer to other program providers as chosen by the individual or LAR as often as desired;

(41) to be informed orally and in writing of any charges assessed by the program provider against the individual's personal funds, the purpose of those charges, and effects of the charges in relation to the individual's financial status;

(42) to complain to DADS when the program provider's resolution of a complaint is unsatisfactory to the individual or LAR, and to be informed of the DADS Office of Consumer Rights and Services telephone number to initiate complaints (1-800-458-9858); and

(43) to be free from the use of seclusion.

Comments

Source Note: The provisions of this §9.173 adopted to be effective March 1, 2000, 25 TexReg 1649; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841; amended to be effective June 1, 2006, 31 TexReg 4442; amended to be effective June 1, 2010, 35 TexReg 4441

§9.174: Certification Principles: Service Delivery

(a) The program provider must:

(1) serve an eligible applicant who has selected the program provider unless the program provider's enrollment has reached its service capacity as identified in CARE;

(2) serve an eligible applicant without regard to age, sex, race, or level of disability;

(3) provide or obtain as needed and without delay all HCS Program services;

(4) ensure that each applicant or individual, or LAR on behalf of the applicant or individual, has chosen where the individual or applicant is to reside from available options consistent with the individual's needs;

(5) encourage involvement of the LAR or family members and friends in all aspects of the individual's life and provide as much assistance and support as is possible and constructive;

(6) request from and encourage the parent or LAR of an individual under 22 years of age receiving supervised living or residential support to provide the program provider with the following information:

(A) the parent's or LAR's:

(i) name;

(ii) address;

(iii) telephone number;

(iv) driver license number and state of issuance or personal identification card number issued by the Department of Public Safety; and

(v) place of employment and the employer's address and telephone number;

(B) name, address, and telephone number of a relative of the individual or other person whom DADS or the program provider may contact in an emergency situation, a statement indicating the relationship between that person and the individual, and at the parent's or LAR's option:

(i) that person's driver license number and state of issuance or personal identification card number issued by the Department of Public Safety; and

(ii) the name, address, and telephone number of that person's employer; and

(C) a signed acknowledgement of responsibility stating that the parent or LAR agrees to:

(i) notify the program provider of any changes to the contact information submitted; and

(ii) make reasonable efforts to participate in the individual's life and in planning activities for the individual;

(7) inform the parent or LAR that if the information described in paragraph (6) of this subsection is not provided or is not accurate and the service coordinator and DADS are unable to locate the parent or LAR as described in §9.190(e)(34) of this subchapter (relating to MRA Requirements for Providing Service Coordination in the HCS Program) and §9.189 of this subchapter (relating to Referral to DFPS), DADS refers the case to DFPS;

(8) for an individual under 22 years of age receiving supervised living or residential support:

(A) make reasonable accommodations to promote the participation of the LAR in all planning and decision-making regarding the individual's care, including participating in meetings conducted by the program provider;

(B) take the following actions to assist an MRA in conducting permanency planning:

(i) cooperate with the MRA responsible for conducting permanency planning by:

(I) allowing access to an individual's records or providing other information in a timely manner as requested by the MRA or HHSC;

(II) participating in meetings to review the individual's permanency plan; and

(III) identifying, in coordination with the individual's MRA, activities, supports, and services that can be provided by the family, LAR, program provider, or the MRA to prepare the individual for an alternative living arrangement;

(ii) encourage regular contact between the individual and the LAR and, if desired by the individual and LAR, between the individual and advocates and friends in the community to continue supportive and nurturing relationships;

(iii) keep a copy of the individual's current permanency plan in the individual's record; and

(iv) refrain from providing the LAR with inaccurate or misleading information regarding the risks of moving the individual to another institutional setting or to a community setting;

(C) if an emergency situation occurs, attempt to notify the parent or LAR and service coordinator as soon as the emergency situation allows and request a response from the parent or LAR; and

(D) if the program provider determines it is unable to locate the parent or LAR, notify the service coordinator of such determination;

(9) allow the individual's family members and friends access to an individual without arbitrary restrictions unless exceptional conditions are justified by the individual's service planning team and documented in the PDP;

(10) notify the service coordinator if changes in an individual's age, skills, attitudes, likes, dislikes, or conditions necessitate a change in residential, educational, or work settings;

(11) ensure that the individual who is living outside the family home is living in a residence that maximizes opportunities for interaction with community members to the greatest extent possible;

(12) ensure that the IPC for each individual is renewed, revised, and authorized by DADS in accordance with §9.166 of this subchapter (relating to Renewal and Revision of an IPC) and §9.160 of this subchapter (relating to DADS' Review of a Proposed IPC);

(13) ensure that HCS Program services identified in the individual's implementation plan are provided in an individualized manner and are based on the results of assessments of the individual's and the family's strengths, the individual's personal goals and the family's goals for the individual, and the individual's needs rather than which services are available;

(14) ensure that each individual's progress or lack of progress toward desired outcomes is documented in observable, measurable, or outcome-oriented terms;

(15) ensure that each individual has opportunities to develop relationships with peers with and without disabilities and receives support if the individual chooses to develop such relationships;

(16) ensure that individuals who perform work for the program provider are paid on the basis of their production or performance and at a wage level commensurate with that paid to persons who are without disabilities and who would otherwise perform that work, and that compensation is based on local, state, and federal regulations, including Department of Labor regulations, as applicable;

(17) ensure that individuals who produce marketable goods and services in habilitation training programs are paid at a wage level commensurate with that paid to persons who are without disabilities and who would otherwise perform that work. Compensation is based on requirements contained in the Fair Labor Standards Act, which include:

(A) accurate recordings of individual production or performance;

(B) valid and current time studies or monitoring as appropriate; and

(C) prevailing wage rates;

(18) ensure that individuals provide no training, supervision, or care to other individuals unless they are qualified and compensated in accordance with local, state, and federal regulations, including Department of Labor regulations;

(19) unless contraindications are documented with justification by the service planning team, ensure that an individual's routine provides opportunities for leisure time activities, vacation periods, religious observances, holidays, and days off, consistent with the individual's choice and the routines of other members of the community;

(20) unless contraindications are documented with justification by the service planning team, ensure that an individual of retirement age has opportunities to participate in day activities appropriate to individuals of the same age and consistent with the individual's or LAR's choice;

(21) unless contraindications are documented with justification by the service planning team, ensure that each individual is offered choices and opportunities for accessing and participating in community activities and experiences available to peers without disabilities;

(22) assist the individual to meet as many of the individual's needs as possible by using generic community services and resources in the same way and during the same hours as these generic services are used by the community at large;

(23) for an individual receiving foster/companion care, residential support, or supervised living;

(A) ensure that the individual lives in a home that is a typical residence within the community;

(B) ensure that the residence, neighborhood, and community meet the needs and choices of the individual and provide an environment that ensures the health, safety, comfort, and welfare of the individual;

(C) unless contraindications are documented with justification by the service planning team, assist the individual to live near family and friends and needed or desired community resources consistent with the individual's choice, if possible; and

(D) ensure that the individual or LAR is involved in planning the individual's residential relocation, except in the case of an emergency;

(24) ensure that adaptive aids are provided in accordance with the individual's PDP, IPC, implementation plan, and with Appendix C of the HCS Program waiver application approved by CMS and found at www.dads.state.tx.us and include the full range of lifts, mobility aids, control switches/pneumatic switches and devices, environmental control units, medically necessary supplies, and communication aids and repair and maintenance of the aids as determined by the individual's needs;

(25) together with an individual's service coordinator, ensure the coordination and compatibility of HCS Program services with non-HCS Program services;

(26) ensure that an individual has a current implementation plan;

(27) ensure that the following specialized therapy services are provided in accordance with the individual's PDP, IPC, implementation plan, and with Appendix C of the HCS Program waiver application approved by CMS and found at www.dads.state.tx.us:

(A) audiology services;

(B) speech/language pathology services;

(C) occupational therapy services;

(D) physical therapy services;

(E) dietary services;

(F) social work services; and

(G) behavioral support;

(28) ensure that day habilitation is provided in accordance with the individual's PDP, IPC, implementation plan, and with Appendix C of the HCS Program waiver application approved by CMS and found at www.dads.state.tx.us, including:

(A) assisting individuals in acquiring, retaining, and improving self-help, socialization, and adaptive skills necessary to reside successfully in the community;

(B) providing individuals with age-appropriate activities that enhance self-esteem and maximize functional level;

(C) complementing any specialized therapies listed in the IPC;

(D) reinforcing skills or lessons taught in school, therapy, or other settings;

(E) training and support activities that promote the individual's integration and participation in the community;

(F) providing assistance for the individual who cannot manage personal care needs during day habilitation activities; and

(G) providing transportation during day habilitation activities as necessary for the individual's participation in day habilitation activities;

(29) ensure that dental treatment is provided in accordance with the individual's PDP, IPC, implementation plan, and with Appendix C of the HCS Program waiver application approved by CMS and found at www.dads.state.tx.us, including:

(A) emergency dental treatment;

(B) preventive dental treatment;

(C) therapeutic dental treatment; and

(D) orthodontic dental treatment, excluding cosmetic orthodontia;

(30) ensure that minor home modifications are provided in accordance with the individual's PDP, IPC, implementation plan, and with Appendix C of the HCS Program waiver application approved by CMS and found at www.dads.state.tx.us, including:

(A) purchase and repair of wheelchair ramps;

(B) modifications to bathroom facilities;

(C) modifications to kitchen facilities; and

(D) specialized accessibility and safety adaptations or additions, including repair and maintenance;

(31) ensure that nursing is provided in accordance with the individual's PDP, IPC, implementation plan, and with Appendix C of the HCS Program waiver application approved by CMS and found at www.dads.state.tx.us and consists of performing health care procedures and monitoring the individual's health conditions, including:

(A) administering medication;

(B) monitoring the individual's use of medications;

(C) monitoring health data and information;

(D) assisting the individual to secure emergency medical services;

(E) making referrals for appropriate medical services;

(F) performing health care procedures ordered or prescribed by a physician or medical practitioner and required by standards of professional practice or law to be performed by a licensed nurse; and

(G) delegating and monitoring of tasks assigned to other service providers by an RN in accordance with state law;

(32) ensure that supported home living is available to an individual living in his or her own home or the home of his or her natural or adoptive family members, or to an individual receiving foster care services from DFPS;

(33) ensure that supported home living is provided in accordance with the individual's PDP, IPC, implementation plan, and with Appendix C of the HCS Program waiver application approved by CMS and found at www.dads.state.tx.us and includes the following elements:

(A) direct personal assistance with activities of daily living (grooming, eating, bathing, dressing, and personal hygiene);

(B) assistance with meal planning and preparation;

(C) securing and providing transportation;

(D) assistance with housekeeping;

(E) assistance with ambulation and mobility;

(F) reinforcement of specialized therapy activities;

(G) assistance with medications and the performance of tasks delegated by an RN;

(H) supervision of individuals' safety and security;

(I) facilitating inclusion in community activities, use of natural supports, social interaction, participation in leisure activities, and development of socially valued behaviors; and

(J) habilitation, exclusive of day habilitation;

(34) ensure that HCS foster/companion care is provided:

(A) by a foster/companion care provider who lives in the residence in which no more than three individuals or other persons receiving similar services are living at any one time; and

(B) in a residence in which the program provider does not hold a property interest;

(35) ensure that foster/companion care is provided in accordance with the individual's PDP, IPC, implementation plan, and with Appendix C of the HCS Program waiver application approved by CMS and found at www.dads.state.tx.us, and includes the following elements:

(A) direct personal assistance with activities of daily living (grooming, eating, bathing, dressing, and personal hygiene);

(B) assistance with meal planning and preparation;

(C) securing and providing transportation;

(D) assistance with housekeeping;

(E) assistance with ambulation and mobility;

(F) reinforcement of specialized therapy activities;

(G) assistance with medications and the performance of tasks delegated by an RN;

(H) supervision of individuals' safety and security;

(I) facilitating inclusion in community activities, use of natural supports, social interaction, participation in leisure activities, and development of socially valued behaviors; and

(J) habilitation, exclusive of day habilitation;

(36) ensure that supervised living is provided:

(A) in a four-person residence that is approved in accordance with §9.188 of this subchapter (relating to DADS' Approval of Residences) or a three-person residence;

(B) by a service provider who provides services and supports as needed by the individuals residing in the residence and is present in the residence and able to respond to the needs of the individuals during normal sleeping hours; and

(C) only with approval by the DADS commissioner or designee for the initial six months and one six-month extension and only with approval by the HHSC executive commissioner after such 12-month period, if provided to an individual under 22 years of age;

(37) ensure that supervised living is provided in accordance with the individual's PDP, IPC, implementation plan, and with Appendix C of the HCS Program waiver application approved by CMS and found at www.dads.state.tx.us, and includes the following elements:

(A) direct personal assistance with activities of daily living (grooming, eating, bathing, dressing, and personal hygiene);

(B) assistance with meal planning and preparation;

(C) securing and providing transportation;

(D) assistance with housekeeping;

(E) assistance with ambulation and mobility;

(F) reinforcement of specialized therapy activities;

(G) assistance with medications and the performance of tasks delegated by an RN;

(H) supervision of individuals' safety and security;

(I) facilitating inclusion in community activities, use of natural supports, social interaction, participation in leisure activities, and development of socially valued behaviors; and

(J) habilitation, exclusive of day habilitation;

(38) ensure that residential support is provided:

(A) in a four-person residence that is approved in accordance with §9.188 of this subchapter or a three-person residence;

(B) by a service provider who is present in the residence and awake whenever an individual is present in the residence;

(C) by service providers assigned on a daily shift schedule that includes at least one complete change of service providers each day; and

(D) only with approval by the DADS commissioner or designee for the initial six months and one six-month extension and only with approval by the HHSC executive commissioner after such 12-month period, if provided to an individual under 22 years of age;

(39) ensure that residential support is provided in accordance with the individual's PDP, IPC, implementation plan, and with Appendix C of the HCS Program waiver application approved by CMS and found at www.dads.state.tx.us, and includes the following elements:

(A) direct personal assistance with activities of daily living (grooming, eating, bathing, dressing, and personal hygiene);

(B) assistance with meal planning and preparation;

(C) securing and providing transportation;

(D) assistance with housekeeping;

(E) assistance with ambulation and mobility;

(F) reinforcement of specialized therapy activities;

(G) assistance with medications and the performance of tasks delegated by an RN;

(H) supervision of individuals' safety and security;

(I) facilitating inclusion in community activities, use of natural supports, social interaction, participation in leisure activities, and development of socially valued behaviors; and

(J) habilitation, exclusive of day habilitation;

(40) if making a recommendation to the service planning team that the individual receive residential support, document the reasons for the recommendation, which may include:

(A) the individual's medical condition;

(B) a behavior displayed by the individual that poses a danger to the individual or to others; or

(C) the individual's need for assistance with activities of daily living during normal sleeping hours;

(41) ensure that respite is available on a 24-hour increment or any part of that increment to individuals living in their family homes;

(42) ensure that respite is provided in accordance with the individual's PDP, IPC, implementation plan, and with Appendix C of the HCS Program waiver application approved by CMS and found at www.dads.state.tx.us and includes:

(A) training in self-help and independent living skills;

(B) provision of room and board when respite is provided in a setting other than the individual's normal residence;

(C) support for individuals who are eligible for respite and who are in need of emergency or planned short-term care;

(D) assistance with ongoing provision of needed waiver services, excluding supported home living; and

(E) assistance with securing and providing transportation;

(43) provide respite in the residence of an individual or in other locations, including residences in which foster/companion care, supervised living, or residential support is provided or in a respite facility, that meet HCS Program requirements and afford an environment that ensures the health, safety, comfort, and welfare of the individual.

(A) If respite is provided in the residence of another individual, the program provider must obtain permission from that individual or LAR and ensure that the respite visit will cause no threat to the health, safety, or welfare of that individual.

(B) If respite is provided in the residence of another individual, the program provider must ensure that:

(i) no more than three individuals receiving HCS Program services and persons receiving similar services for which the program provider is reimbursed are served in a residence in which foster/companion care is provided;

(ii) no more than three individuals receiving HCS Program services and persons receiving similar services for which the program provider is reimbursed are served in a residence in which only supervised living is provided; and

(iii) no more than four individuals receiving HCS Program services and persons receiving similar services for which the program provider is reimbursed are served in a residence in which residential support is provided.

(C) If respite is provided in a respite facility, the program provider must:

(i) ensure that the facility is not a residence;

(ii) ensure that no more than six individuals receive services in the facility at any one time; and

(iii) obtain written approval from the local fire authority having jurisdiction stating that the facility and its operation meet the local fire ordinances before initiating services in the facility if more than three individuals receive services in the facility at any one time.

(D) The program provider must not provide respite in an institution;

(44) ensure that supported employment (employment in an integrated work setting--generally a setting where no more than one employee or 3% of the work force members have disabilities) is provided in accordance with the individual's PDP, IPC, implementation plan, and with Appendix C of the HCS Program waiver application approved by CMS and found at www.dads.state.tx.us that is not the individual's residence and includes:

(A) ongoing individualized support services needed to sustain paid work by the individual, including supervision and training;

(B) compensation by the employer to the individual in accordance with the Fair Labor Standards Act; and

(C) provision of services not available or funded through the state education agency or a state rehabilitation agency;

(45) inform the service coordinator of changes related to an individual's residential setting that do not require a change to the individual's IPC;

(46) maintain a system of delivering HCS Program services that is continuously responsive to changes in the individual's personal goals, condition, abilities, and needs as identified by the service planning team;

(47) ensure that appropriate staff members, service providers, and the service coordinator are informed of a circumstance or event that occurs in an individual's life or a change to an individual's condition that may affect the provision of services to the individual;

(48) maintain current information in CARE about the individual and the individual's LAR, including:

(A) the individual's full name, address, location code, and phone number; and

(B) the LAR's full name, address, and phone number;

(49) maintain a single record related to HCS Program services provided to an individual for an IPC year that includes:

(A) the IPC;

(B) the PDP;

(C) the implementation plan;

(D) a behavior support plan, if one has been developed;

(E) documentation that describes the individual's progress or lack of progress on the implementation plan;

(F) documentation that describes any changes to an individual's personal goals, condition, abilities, or needs;

(G) the MR/RC Assessment;

(H) documentation supporting the recommended LON, including the ICAP booklet, assessments and interventions by qualified professionals, and time sheets of service providers;

(I) results and recommendations from individualized assessments;

(J) documentation concerning any use of restraint as described in §9.179(c)(2) and (3) of this subchapter (relating to Certification Principles: Restraint);

(K) documentation related to the individual's suspension from HCS Program services; and

(L) for an individual under 22 years of age, a copy of the permanency plan;

(50) upon request by the service coordinator:

(A) permit the service coordinator access to the record that is required by paragraph (49) of this subsection; and

(B) provide the service coordinator a legible copy of a document in the record at no charge to the service coordinator;

(51) provide a copy of the following documents to the service coordinator:

(A) an individual's IPC; and

(B) an individual's MR/RC Assessment; and

(52) notify the service coordinator if the program provider has reason to believe that an individual is no longer eligible for HCS Program services or an individual or LAR has requested termination of all HCS Program services.

(b) A program provider may suspend HCS Program services because an individual is temporarily admitted to a setting described in §9.155(d) of this subchapter (relating to Eligibility Criteria and Suspension of HCS Program Services).

(1) If a program provider suspends HCS Program services, the program provider must:

(A) notify DADS of the suspension by entering data in CARE in accordance with DADS instructions; and

(B) notify the service coordinator of the suspension within one business day after services are suspended.

(2) A program provider may not suspend HCS Program services for more than 270 calendar days without approval from DADS as described in §9.190(e)(20)(C) of this subchapter.

§9.177: Certification Principles: Staff Member and Service Provider Requirements

(a) The program provider must ensure the continuous availability of trained and qualified service providers to deliver the required services as determined by the individual's needs.

(b) The program provider must employ or contract with a person or entity of the individual's or LAR's choice in accordance with this subsection.

(1) Except as provided by paragraph (2) of this subsection, the program provider must employ or contract with a person or entity of the individual's or LAR's choice to provide an HCS Program service to the individual if that person or entity:

(A) is qualified to provide the service;

(B) provides the service at or below the direct services portion of the applicable HCS Program rate; and

(C) is willing to contract with or be employed by the program provider to provide the service in accordance with this subchapter.

(2) The program provider may choose not to employ or contract with a person or entity of the individual's or LAR's choice in accordance with paragraph (1) of this subsection for good cause. The program provider must document the good cause.

(3) The requirement in paragraph (1)(B) of this subsection does not prohibit the program provider and the person or entity from agreeing to payment for the service in an amount that is more than the direct services portion of the applicable HCS Program rate.

(c) The program provider must comply with each applicable regulation required by the State of Texas in ensuring that its operations and staff members and service providers meet state certification, licensure, or regulation for any tasks performed or services delivered in part or in entirety for the HCS Program.

(d) The program provider must implement and maintain a plan for initial and periodic training of staff members and service providers that ensures staff members and service providers:

(1) are qualified to deliver services as required by the current needs and characteristics of the individuals to whom they deliver services, including the use of restraint in accordance with §9.179 of this subchapter (relating to Certification Principles: Restraint); and

(2) are knowledgeable of:

(A) acts that constitute abuse, neglect, or exploitation of an individual, as defined in Chapter 711, Subchapter A of this title (relating to Introduction);

(B) the requirement to report acts of abuse, neglect, or exploitation, or suspicion of such acts, to DFPS in accordance with §9.178(j) of this subchapter (relating to Certification Principles: Quality Assurance); and

(C) methods to prevent the occurrence of abuse, neglect, and exploitation.

(e) The program provider must implement and maintain personnel practices that safeguard individuals against infectious and communicable diseases.

(f) The program provider's operations must prevent:

(1) conflicts of interest between a staff member or a service provider and an individual;

(2) financial impropriety toward individuals;

(3) abuse, neglect, or exploitation of an individual; and

(4) threats of harm or danger toward an individual's possessions.

(g) The program provider must employ or contract with a person who has a minimum of three years work experience in planning and providing direct services to people with mental retardation or other developmental disabilities as verified by written professional references to oversee the provision of direct services to individuals.

(h) In evaluating the qualifications of a service provider for positions requiring the equivalent of a high school education, the program provider must ensure that the service provider involved is at least 18 years of age and either possesses a certificate recognized by a state as the equivalent of a high school diploma or successfully completes a proficiency evaluation of experience and competence to perform the job tasks. The evaluation of experience and competency must include:

(1) a written competency-based assessment of the applicant's ability to document service delivery and observations of the individuals to be served; and

(2) at least three personal references from persons not related by blood that indicate the applicant's ability to provide a safe, healthy environment for the individuals being served.

(i) The program provider must ensure that each service provider of specialized therapies is currently qualified by being licensed by the State of Texas or certified in the specific area for which services are delivered or be providing services in accordance with state law. The program provider must ensure that a service provider of behavioral support services:

(1) is licensed as a psychologist in accordance with Chapter 501 of the Texas Occupations Code;

(2) is licensed as a psychological associate in accordance with Chapter 501 of the Texas Occupations Code;

(3) has been issued a provisional license to practice psychology in accordance with Chapter 501 of the Texas Occupations Code;

(4) is certified by DADS as described in §5.161 of this title (relating to TDMHMR-Certified Psychologist); or

(5) is certified as a behavior analyst by the Behavior Analyst Certification Board, Inc.

(j) The program provider must ensure that a service provider of day habilitation or supported employment is currently qualified by having a high school diploma or its equivalent as described in subsection (h) of this section, that transportation is provided in accordance with applicable state laws, and that tasks delegated to a service provider by an RN are performed in accordance with state law.

(k) The program provider must ensure that dental treatment is provided by a dentist currently qualified by being licensed in the State of Texas by the Texas State Board of Dental Examiners in accordance with Texas Occupations Code, Chapter 256.

(l) The program provider must ensure that nursing services are provided by a nurse who is currently qualified by being licensed by the Texas Board of Nursing as an RN or LVN.

(m) The program provider must ensure that a service provider of supported home living, foster/companion care, supervised living, residential support, and respite services is currently qualified by having a high school diploma or its equivalent as described in subsection (h) of this section, that transportation is provided in accordance with applicable state laws, and that tasks delegated to a service provider by an RN are performed in accordance with state law.

(n) The program provider must ensure that a service provider:

(1) is employable in accordance with Texas Health and Safety Code, §250.006; and

(2) is not listed as "unemployable" in the Employee Misconduct Registry or the Nurse Aide Registry maintained by DADS by searching or ensuring a search of such registries is conducted, before hire and annually thereafter, in accordance with Texas Health and Safety Code, §250.003.

(o) The program provider must:

(1) ensure that at least one of the following service components is provided using only employees, not contractors, of the program provider:

(A) supported home living;

(B) day habilitation;

(C) supported employment;

(D) respite;

(E) supervised living; or

(F) residential support; and

(2) notify DADS in accordance with DADS' instructions:

(A) which service component listed in paragraph (1) of this subsection is provided using only employees of the program provider; and

(B) before changing the service component provided using only employees of the program provider.

Comments

Source Note: The provisions of this §9.177 adopted to be effective March 1, 2000, 25 TexReg 1649; amended to be effective July 26, 2001, 26 TexReg 5381; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841; amended to be effective June 1, 2006, 31 TexReg 4442; amended to be effective June 1, 2008, 33 TexReg 4334; amended to be effective June 1, 2010, 35 TexReg 4441

§9.178: Certification Principles: Quality Assurance

(a) In the provision of HCS Program services to an individual, the program provider must promote the active and maximum cooperation with generic service agencies, non-HCS Program service providers, and advocates or other actively involved persons.

(b) The program provider must ensure personalized service delivery based upon the choices made by each individual or LAR and those choices that are available to persons without mental retardation and other disabilities.

(c) Before providing services to an individual in a residence in which foster/companion care, supervised living, or residential support is provided, and annually thereafter, the program provider must:

(1) conduct an on-site inspection to ensure that, based on the individual's needs, the environment is healthy, comfortable, safe, appropriate, and typical of other residences in the community, suited for the individual's abilities, and is in compliance with applicable federal, state, and local regulations for the community in which the individual lives;

(2) ensure that the service coordinator is provided with a copy of the results of the on-site inspection within five calendar days after completing the inspection;

(3) complete any action identified in the on-site inspection for a residence in which supervised living or residential support will be provided to ensure that the residence meets the needs of the individual; and

(4) ensure completion of any action identified in the on-site inspection for a residence in which foster/companion care will be provided to ensure that the residence meets the needs of the individual.

(d) The program provider must ensure that:

(1) emergency plans are maintained in each residence in which foster/companion care, supervised living or residential support is provided;

(2) the emergency plans address relevant emergencies appropriate for the type of service, geographic location, and the individuals living in the residence;

(3) the individuals and service providers follow the plans during drills and actual emergencies; and

(4) documentation of drills and responses to actual emergencies are maintained in each residence.

(e) The program provider must ensure that a four-person residence:

(1) is in continuous compliance with applicable provisions concerning Residential Board and Care Occupancies - Small Facilities of the edition of the NFPA 101 Life Safety Code, published by the National Fire Protection Association and most recently adopted by the Texas State Fire Marshal's Office as certified by the fire safety authority having jurisdiction for the location of the residence (for example, the local fire marshal or building official) at the time the residence is approved by DADS and at least annually thereafter;

(2) contains documentation of the residence's most recent inspection by the fire safety authority;

(3) is approved by DADS in accordance with §9.188 of this subchapter (relating to DADS' Approval of Residences); and

(4) is in continuous compliance with all applicable health and safety laws, ordinances, and regulations.

(f) The program provider must establish an ongoing consumer/advocate advisory committee composed of individuals, LARs, community representatives, and family members that will meet at least quarterly. The committee will assist the program provider to perform the following activities at least annually:

(1) evaluating and addressing the satisfaction of individuals or LARs with the program provider's services;

(2) soliciting, addressing, and reviewing complaints from individuals or LARs about the operations of the program provider;

(3) reviewing all allegations of abuse, neglect, and exploitation alleged to have been committed by a service provider against individuals and the program provider's practices for preventing the occurrence or reoccurrence of abuse, neglect, and exploitation;

(4) reviewing the reasons for terminating HCS Program services to individuals and identifying any related need for improvement to the program provider's service delivery;

(5) participating in a continuous quality improvement review of the program provider's operations and offering recommendations for improvement of program operations for action by the program provider as necessary; and

(6) reviewing critical incident data to assess trends that will assist in the development of procedures to decrease the frequency of the use of restraint.

(g) The program provider must make available all records, reports, and other information related to the delivery of HCS Program services as requested by DADS, other authorized agencies, or the Centers for Medicare and Medicaid Services and deliver such items, as requested, to a specified location.

(h) The program provider must conduct, at least annually, a satisfaction survey of individuals and LARs and take action regarding any areas of dissatisfaction.

(i) The program provider must publicize and make available a process for eliciting complaints and maintain a record of verifiable resolutions of complaints received from:

(1) individuals, their families, and LARs;

(2) staff members, service providers, and CDS service providers;

(3) the general public; and

(4) the MRA.

(j) The program provider must ensure that:

(1) the individual and LAR are informed of how to report allegations of abuse, neglect, or exploitation to DFPS and are provided with the DFPS toll-free telephone number (1-800-647-7418) in writing; and

(2) all staff members and service providers:

(A) are instructed to report to DFPS immediately, but not later than one hour after having knowledge or suspicion, that an individual has been or is being abused, neglected, or exploited; and

(B) are provided with the DFPS toll-free telephone number (1-800-647-7418) in writing; and

(3) all staff members and service providers report suspected abuse, neglect, or exploitation as instructed.

(k) If the program provider suspects an individual has been or is being abused, neglected, or exploited or is notified of an allegation of abuse, neglect, or exploitation, the program provider must take necessary actions to secure the safety of the alleged victim, including:

(1) obtaining immediate and ongoing medical or psychological services for the alleged victim as necessary;

(2) if necessary, restricting access by the alleged perpetrator of the abuse, neglect, or exploitation to the alleged victim or other individuals pending investigation of the allegation; and

(3) notifying, as soon as possible but no later than 24 hours after the program provider reports or is notified of an allegation, the alleged victim, the alleged victim's LAR, and the service coordinator of the allegation report and the actions that have been or will be taken.

(l) Staff members and service providers must cooperate with the DFPS investigation of an allegation of abuse, neglect, or exploitation, including:

(1) providing complete access to all HCS Program service sites owned, operated, or controlled by the program provider;

(2) providing complete access to individuals and program provider personnel;

(3) providing access to all records pertinent to the investigation of the allegation; and

(4) preserving and protecting any evidence related to the allegation in accordance with DFPS instructions.

(m) In all respite facilities and all residences in which a service provider of residential assistance or the program provider hold a property interest, the program provider must post in a conspicuous location:

(1) the name, address, and telephone number of the program provider;

(2) the effective date of the Waiver Program Provider Agreement; and

(3) the name of the legal entity named on the Waiver Program Provider Agreement.

(n) The program provider must:

(1) promptly, but not later than five calendar days after the program provider's receipt of a DFPS investigation report:

(A) notify the alleged victim or LAR and the service coordinator of:

(i) the investigation finding; and

(ii) the corrective action taken by the program provider in response to the DFPS investigation; and

(B) notify the alleged victim or LAR of:

(i) the process to appeal the investigation finding as described in Chapter 711, Subchapter M of this title (relating to Requesting an Appeal if You are the Reporter, Alleged Victim, Legal Guardian, or with Advocacy, Incorporated); and

(ii) the process for requesting a copy of the investigative report from the program provider;

(2) report to DADS in accordance with DADS' instructions the program provider's response to the DFPS investigation that involves a staff member or service provider within 14 calendar days after the program provider's receipt of the investigation report; and

(3) upon request of the alleged victim or LAR, provide to the alleged victim or LAR a copy of the DFPS investigative report after concealing any information that would reveal the identity of the reporter or of any individual who is not the alleged victim.

(o) If abuse, neglect, or exploitation is confirmed by the DFPS investigation, the program provider must take appropriate action to prevent the reoccurrence of abuse, neglect or exploitation, including, when warranted, disciplinary action against or termination of the employment of a staff member confirmed by the DFPS investigation to have committed abuse, neglect, and exploitation.

(p) At least annually, the program provider must review incidents of confirmed abuse, neglect, or exploitation, complaints, and unusual incidents to identify program operations modifications that will prevent the reoccurrence of such incidents and improve service delivery.

(q) The program provider must ensure that all personal information concerning an individual, such as lists of names, addresses, and records obtained by the program provider is kept confidential, that the use or disclosure of such information and records is limited to purposes directly connected with the administration of the program provider's HCS Program, and is otherwise neither directly nor indirectly used or disclosed unless the consent of the individual to whom the information applies or his or her LAR is obtained beforehand.

(r) The program provider must apply a consistent method in assessing charges against the individual's personal funds that ensures that charges for items or services, including room and board, are reasonable and comparable to the costs of similar items and services generally available in the community.

(s) The program provider must ensure that the individual or LAR has agreed in writing to all charges assessed by the program provider against the individual's personal funds before the charges are assessed.

(t) The program provider must not assess charges against the individual's personal funds for costs for items or services reimbursed through the HCS Program.

(u) At the written request of an individual or LAR, the program provider:

(1) must manage the individual's personal funds entrusted to the program provider;

(2) must not commingle the individual's personal funds with the program provider's funds; and

(3) must maintain a separate, detailed record of all deposits and expenditures for the individual.

(v) If the program provider determines that an individual's behavior may require the implementation of behavior management techniques involving intrusive interventions or restriction of the individual's rights, the program provider must comply with this subsection.

(1) The program provider must:

(A) obtain an assessment of the individual's needs and current level and severity of the behavior;

(B) ensure that a service provider of behavioral support services:

(i) develops, with input from the individual, LAR, program provider, and actively involved persons, a behavior support plan that includes the use of techniques appropriate to the level and severity of the behavior; and

(ii) considers the effects of the techniques on the individual's physical and psychological well-being in developing the plan.

(2) The behavior support plan must:

(A) describe how the behavioral data concerning the behavior is collected and monitored;

(B) allow for the decrease in the use of the techniques based on the behavioral data; and

(C) allow for revision of the plan when desired behavior is not displayed or the techniques are not effective.

(3) Before implementation of the behavior support plan, the program provider must:

(A) obtain written consent from the individual or LAR to implement the plan;

(B) provide written notification to the individual or LAR of the right to discontinue implementation of the plan at any time; and

(C) notify the individual's service coordinator of the plan.

(4) The program provider must, at least annually:

(A) review the effectiveness of the techniques and determine whether the behavior support plan needs to be continued; and

(B) notify the service coordinator if the plan needs to be continued.

(w) The program provider must report the death of an individual to DADS and the service coordinator by the end of the next business day following the death or the program provider's learning of the death and, if the program provider reasonably believes that the LAR does not know of the individual's death, to the LAR as soon as possible, but not later than 24 hours after the program provider learns of the individual's death.

(x) A program provider must not discharge or otherwise retaliate against:

(1) a staff member, service provider, individual, or other person who files a complaint, presents a grievance, or otherwise provides good faith information relating to the:

(A) misuse of restraint by the program provider;

(B) use of seclusion by the program provider; or

(C) possible abuse, neglect, or exploitation of an individual; or

(2) an individual because someone on behalf of the individual files a complaint, presents a grievance, or otherwise provides good faith information relating to the:

(A) misuse of restraint by the program provider;

(B) use of seclusion by the program provider; or

(C) possible abuse, neglect, or exploitation of an individual.

(y) A program provider must enter critical incident data in CARE no later than 30 calendar days after the last day of the month being reported.

§9.179: Certification Principles: Restraint

(a) A program provider must not use restraint:

(1) in a manner that:

(A) obstructs the individual's airway, including the placement of anything in, on, or over the individual's mouth or nose;

(B) impairs the individual's breathing by putting pressure on the individual's torso;

(C) interferes with the individual's ability to communicate;

(D) places the individual in a prone or supine position;

(E) extends muscle groups away from each other;

(F) uses hyperextension of joints; or

(G) uses pressure points or pain;

(2) for disciplinary purposes, that is, as retaliation or retribution;

(3) for the convenience of a staff member or service provider or other individuals; or

(4) as a substitute for effective treatment or habilitation.

(b) A program provider may use restraint:

(1) in a behavioral emergency;

(2) as part of a behavior support plan that addresses inappropriate behavior exhibited voluntarily by an individual;

(3) during a medical or dental procedure if necessary to protect the individual or others and as a follow-up after a medical or dental procedure or following an injury to promote the healing of wounds;

(4) to protect the individual from involuntary self-injury; and

(5) to provide postural support to the individual or to assist the individual in obtaining and maintaining normative bodily functioning.

(c) In order to decrease the frequency of the use of restraint and to minimize the risk of harm to an individual, a program provider must:

(1) with the involvement of a physician, identify:

(A) the individual's known physical or medical conditions that might constitute a risk to the individual during the use of restraint;

(B) the individual's ability to communicate; and

(C) other factors that must be taken into account if the use of restraint is considered, including the individual's:

(i) cognitive functioning level;

(ii) height;

(iii) weight;

(iv) emotional condition (including whether the individual has a history of having been physically or sexually abused); and

(v) age;

(2) document the conditions and factors identified in accordance with paragraph (1) of this subsection, and, as applicable, limitations on specific restraint techniques or mechanical restraint devices in the individual's record; and

(3) review and update with a physician, RN, or LVN, at least annually or when a condition or factor documented in accordance with paragraph (2) of this subsection changes significantly, information in the individual's record related to the identified condition, factor, or limitation.

(d) If a program provider restrains an individual as provided in subsection (b) of this section, the program provider must:

(1) take into account the conditions, factors, and limitations on specific restraint techniques or mechanical restraint devices documented in accordance with subsection (c)(2) and (3) of this section;

(2) use the minimal amount of force or pressure that is reasonable and necessary to ensure the safety of the individual and others;

(3) safeguard the individual's dignity, privacy, and well-being; and

(4) not secure the individual to a stationary object while the individual is in a standing position.

(e) In a circumstance described in subsection (b)(1) or (2) of this section, a program provider may use only a restraint hold in which the individual's limbs are held close to the body to limit or prevent movement and that does not violate the provisions of subsection (a)(1) of this section.

(f) A program provider must release an individual from restraint:

(1) as soon as the individual no longer poses a risk of imminent physical harm to the individual or others;

(2) if the individual in restraint experiences a medical emergency, as soon as possible as indicated by the medical emergency; or

(3) as soon as an individual in a restraint hold described in subsection (e) of this section who moves toward the floor reaches the floor.

(g) After restraining an individual in a behavioral emergency, a program provider must:

(1) as soon as possible but no later than one hour after the use of restraint, notify an RN or LVN of the restraint;

(2) ensure that medical services are obtained for the individual as necessary;

(3) as soon as possible but no later than 24 hours after the use of restraint, notify one of the following persons, if there is such a person, that the individual has been restrained:

(A) the individual's LAR; or

(B) a person actively involved with the individual, unless the release of this information would violate other law; and

(4) notify the individual's service coordinator by the end of the first business day after the use of restraint.

(h) If, under the Health Insurance Portability and Accountability Act, the program provider is a "covered entity," as defined in 45 Code of Federal Regulations (CFR) §160.103, any notification provided under subsection (g)(3)(B) of this section must be to a person to whom the program provider is allowed to release information under 45 CFR §164.510.

Comments

Source Note: The provisions of this §9.179 adopted to be effective June 1, 2006, 31 TexReg 4442; amended to be effective June 1, 2010, 35 TexReg 4441

§9.185: Certification Processes

(a) If DADS determines that the program provider is in compliance with all certification principles at the end of the review exit conference, DADS certifies the program provider and no action by the program provider is required.

(b) If DADS determines that the program provider is out of compliance with 10 percent or fewer of the certification principles at the end of the review exit conference, but the program provider is in compliance with all principles found out of compliance in the previous review, the program provider must submit a corrective action plan to DADS for approval within 14 calendar days after the program provider receives DADS' certification report.

(1) The corrective action plan must specify a date by which corrective action will be completed, and such date must be no later than 90 calendar days after the certification review exit conference.

(2) If the program provider submits a corrective action plan in accordance with this subsection and the plan is approved by DADS, DADS certifies the program provider. DADS evaluates the program provider's required corrective action during DADS' first review of the program provider after the corrective action completion date.

(3) If the program provider does not submit a corrective action plan in accordance with this subsection or the plan is not approved by DADS, DADS initiates termination of the program provider's waiver program provider agreement, implements vendor hold against the program provider and, in conjunction with the local MRA, coordinates the provision of alternate services for the individuals receiving HCS Program services from the program provider.

(c) If DADS determines that the program provider is out of compliance with 10 percent or fewer of the certification principles at the end of the review exit conference, including any principles found out of compliance in the previous review, DADS:

(1) certifies the program provider, if the program provider:

(A) presents evidence before the end of the current certification period that it is in compliance with all principles found out of compliance in the previous review; and

(B) submits a corrective action plan in accordance with subsection (b) of this section addressing any new principles found out of compliance; or

(2) does not certify the program provider and initiates termination of the program provider's waiver program provider agreement, if the program provider does not:

(A) present evidence before the end of the current certification period that it is in compliance with all principles found out of compliance in the previous review; and

(B) submit a corrective action plan in accordance with subsection (b) of this section addressing any new principles found out of compliance.

(d) If DADS determines that the program provider is out of compliance with between 10 and 20 percent of the certification principles at the end of the review exit conference, including any principles found out of compliance in the previous review, DADS does not certify the program provider and applies Level I sanctions against the program provider.

(1) Under Level I sanctions, the program provider must complete corrective action within 30 calendar days after the review exit conference and DADS conducts an on-site follow-up review within 30 to 45 calendar days after the review exit conference.

(2) Based on the results of the follow-up review, DADS:

(A) certifies the program provider if DADS determines that the program provider is in compliance, by the end of the follow-up review exit conference, with the principles found out of compliance; or

(B) denies certification of and implements vendor hold against the program provider if DADS determines that the program provider is not in compliance, by the end of the follow-up review exit conference, with the principles found out of compliance.

(3) If DADS implements vendor hold against the provider, DADS conducts a second on-site follow-up review between 30 and 45 calendar days after the effective date of the vendor hold. Based on the results of the review, DADS:

(A) certifies the program provider and removes the vendor hold if DADS determines that the program provider is in compliance, by the end of the follow-up review exit conference, with the principles found out of compliance; or

(B) denies certification of the program provider and initiates termination of the program provider's waiver program provider agreement if DADS determines that the program provider is not in compliance, by the end of the follow-up review exit conference, with the principles found out of compliance.

(e) If DADS determines that the program provider is out of compliance, at the end of the review exit conference, with 20 or more percent of the certification principles, including any principles found out of compliance in the previous review, DADS does not certify the program provider, implements vendor hold, and applies Level II sanctions against the program provider.

(1) Under Level II sanctions:

(A) the program provider must complete corrective action within 30 calendar days after the review exit conference; and

(B) DADS conducts an on-site follow-up review within 30 to 45 calendar days after the required correction date.

(2) Based on the results of the follow-up review, DADS:

(A) certifies the program provider and removes the vendor hold if DADS determines that the program provider is in compliance, by the end of the follow-up review exit conference, with all principles found out of compliance; or

(B) denies certification of the program provider and initiates termination of the program provider's waiver program provider agreement if DADS determines that the program provider is not in compliance, by the end of the follow-up review exit conference, with all principles found out of compliance.

(f) Notwithstanding subsections (b) - (e) of this section, if DADS determines that a hazard to the health or safety of one or more individuals exists and the hazard is not eliminated before the end of the review exit conference, DADS denies certification of the program provider, initiates termination of the program provider's waiver program provider agreement, implements vendor hold against the program provider, and, in conjunction with the local MRA, coordinates the provision of alternate services for individuals receiving HCS Program services from the program provider. A hazard to health or safety is any condition that could result in life-threatening harm, serious injury, or death of an individual or other person within 48 hours. If hazards are identified by DADS during a review and the program provider corrects the hazards before the end of the review exit conference, the correction will be designated in DADS' report of the review.

(g) Notwithstanding subsections (b) - (e) of this section, if DADS determines that a program provider's failure to comply with one or more of the certification principles is of a serious or pervasive nature, DADS may, at its discretion, take any action described in this section against the program provider. Serious or pervasive failure to comply includes:

(1) conditions that have potentially dangerous consequences for individuals served by the program provider; or

(2) conditions that affect a large percentage of individuals served by the program provider.

(h) Notwithstanding subsections (b) - (e) of this section, if DADS determines that a program provider has falsified documentation used to demonstrate compliance with this subchapter, DADS may, at its discretion, take any action described in this section against the program provider.

Comments

Source Note: The provisions of this §9.185 adopted to be effective June 1, 2006, 31 TexReg 4442; amended to be effective June 1, 2008, 33 TexReg 4334; amended to be effective June 1, 2010, 35 TexReg 4441

§9.186: Program Provider's Right to Administrative Hearing

(a) A program provider may request an administrative hearing if DADS takes or proposes to take the following action:

(1) vendor hold;

(2) termination of the program provider agreement;

(3) recoupment of payments made to the program provider; or

(4) denial of a program provider's claim for payment, including denial of a retroactive LOC and denial of a recommended LON.

(b) If the basis of an administrative hearing requested under this section is a dispute regarding an LON assignment, the program provider may receive an administrative hearing only if reconsideration was requested by the program provider in accordance with §9.165 of this subchapter (relating to Reconsideration of LON Assignment).

Comments

Source Note: The provisions of this §9.186 adopted to be effective June 1, 2006, 31 TexReg 4442; amended to be effective June 1, 2010, 35 TexReg 4441

§9.187: Other Program Provider Responsibilities

A program provider must comply with requirements of the Omnibus Budget Reconciliation Act of 1990, 42 United States Code §139a(w)(1), regarding advanced directives under state plans for medical assistance.

Comments

Source Note: The provisions of this §9.187 adopted to be effective June 1, 2006, 31 TexReg 4442

§9.188: Dads' Approval of Residences

(a) A program provider must request and obtain DADS' approval of a four-person residence.

(b) To receive approval of a four-person residence, the program provider must submit the following documentation to DADS:

(1) the address of the residence at which the program provider intends to provide residential support;

(2) written certification from the program provider that the program provider is providing or intends to provide residential support for one or more individuals who will live in the residence;

(3) written certification by the fire safety authority having jurisdiction for the location for the residence (for example, the local fire marshal or building official) that, based upon inspection of the residence, the residence complies with the provisions of §9.178(e)(1) of this subchapter (relating to Certification Principles: Quality Assurance); and

(4) written certification from the program provider that the residence to be approved is not the residence of any person other than a person described in §9.153(18)(B) of this subchapter (relating to Definitions).

(c) Pending DADS' receipt of documentation of the certification inspection required by subsection (b)(3) of this section, DADS may grant temporary approval of a four-person residence if the program provider submits the documentation required by subsection (b)(1), (2), and (4) of this section and the following dated documentation to DADS:

(1) a copy of the Contractor's Material and Test Certificate for Above Ground Piping (Form 85A) and the Contractor's Material and Test Certification for Underground Piping (Form 85B) as issued by the Texas State Fire Marshal's Office certifying the automatic fire sprinkler system complies with minimum installation requirements signed by an installer licensed by the State of Texas or documentation evidencing a "prompt" evacuation capability, as defined in the NFPA 101 Life Safety Code;

(2) a copy of the Fire Alarm Installation Certificate (Form FML009) certifying the fire alarm system complies with minimum installation requirements and applicable provisions of the NFPA 101 Life Safety Code signed by an installer licensed by the State of Texas;

(3) a copy of the written correspondence from the fire safety authority having jurisdiction for the location of the residence that an inspection of the residence by that authority will be conducted within 30 calendar days after the effective date of DADS' approval of the residence as established in accordance with subsection (e) of this section; and

(4) written certification from the program provider that all other NFPA 101 Life Safety Code requirements applicable to the residence have been met.

(d) Temporary approval granted in accordance with subsection (c) of this section:

(1) is effective as of the date of the latest date of the documentation specified in subsection (c)(1) - (4) of this section; and

(2) expires 45 calendar days after the effective date of the temporary approval or on the date DADS approves the four-person residence based on the program provider's submission of the written certification required in subsection (b)(3) of this section, whichever is earlier.

(e) DADS notifies the program provider of its approval or disapproval of the four-person residence within 14 calendar days of its receipt of the documentation specified in subsection (b) or (c) of this section.

(f) Services in a four-person residence may not be initiated until the program provider has met the provision of subsections (b) or (c) of this section.

Comments

Source Note: The provisions of this §9.188 adopted to be effective June 1, 2006, 31 TexReg 4442; amended to be effective June 1, 2010, 35 TexReg 4441

§9.189: Referral to Dfps

If, within one year after the date DADS receives the notification described in §9.190(e)(34) or (35) of this subchapter (relating to MRA Requirements for Providing Service Coordination in the HCS Program), DADS is unable to locate the parent or LAR, DADS refers the case to:

(1) the Child Protective Services Division of DFPS if the individual is under 18 years of age; or

(2) the Adult Protective Services Division of DFPS if the individual is 18-22 years of age.

Comments

Source Note: The provisions of this §9.189 adopted to be effective September 1, 2006, 31 TexReg 6785; amended to be effective June 1, 2010, 35 TexReg 4441

§9.190: Mra Requirements for Providing Service Coordination in the Hcs Program

(a) In addition to the requirements described in Chapter 2, Subchapter L of this title (relating to Service Coordination for Individuals with Mental Retardation), an MRA must, in the provision of service coordination in the HCS Program, ensure compliance with the requirements in this subchapter.

(b) The MRA must employ service coordinators who:

(1) meet the minimum qualifications and MRA staff training requirements specified in Chapter 2, Subchapter L of this title; and

(2) have received training about the HCS Program, including the requirements of this subchapter and the HCS Program service components as specified in §9.154 of this subchapter (relating to Description of the Home and Community-based Services (HCS) Program).

(c) An MRA must have a process for receiving and resolving complaints from a program provider related to the MRA's provision of service coordination or the MRA's process to enroll an applicant in the HCS Program.

(d) If, as a result of monitoring, the service coordinator identifies a concern with the implementation of the PDP, the MRA must ensure that the concern is communicated to the program provider and attempts made to resolve the concern. The MRA may refer an unresolved concern to DADS Consumer Rights and Services.

(e) A service coordinator must:

(1) assist an individual or LAR in exercising the legal rights of the individual as a citizen and as a person with a disability;

(2) provide an applicant or individual, LAR, or family member with written a copy of the rights of the individual as described in §9.173(b) of this subchapter (relating to Certification Principles: Rights of Individuals) and the booklet titled Your Rights In a Home and Community-Based Services Program (which is found at www.dads.state.tx.us.) and an oral explanation of such rights:

(A) upon enrollment in the HCS program;

(B) upon revision of the booklet;

(C) upon request; and

(D) upon change in an individual's legal status (that is when the individual turns 18 years of age, is appointed a guardian, or loses a guardian);

(3) document the provision of the rights described in §9.173(b) of this subchapter and the booklet and oral explanation required by paragraph (2) of this subsection and ensure that the documentation is signed by:

(A) the individual or LAR; and

(B) the service coordinator;

(4) ensure that, at the time an applicant is enrolled, the applicant or LAR is informed orally and in writing of the following processes for filing complaints:

(A) processes for filing complaints with the MRA about the provision of service coordination; and

(B) processes for filing complaints about the provision of HCS Program services including:

(i) the telephone number of the MRA to file a complaint;

(ii) the toll-free telephone number of DADS to file a complaint; and

(iii) the toll-free telephone number of DFPS (1-800-647-7418) to report an allegation of abuse, neglect, or exploitation;

(5) maintain for an individual for an IPC year:

(A) a copy of the IPC;

(B) the PDP;

(C) a copy of the MR/RC Assessment;

(D) documentation of the activities performed by the service coordinator in providing service coordination; and

(E) any other pertinent information related to the individual;

(6) initiate, coordinate, and facilitate person-directed planning;

(7) develop for an individual a full range of services and resources using generic service agencies, non-HCS Program service providers, and advocates or other actively involved persons to meet the needs of the individual as those needs are identified;

(8) ensure that the PDP for an applicant or individual is developed, reviewed, and updated in accordance with:

(A) §9.158(k)(3) of this subchapter (relating to Process for Enrollment of Applicants);

(B) §9.166 of this subchapter (relating to Renewal and Revision of an IPC); and

(C) §2.556 of this title (relating to MRA's Responsibilities);

(9) participate in the development, renewal, and revision of an individual's IPC in accordance with §9.158 and §9.166 of this subchapter;

(10) ensure that the service planning team participates in the renewal and revision of the IPC for an individual in accordance with §9.166 of this subchapter and ensure that the service planning team completes other responsibilities and activities as described in this subchapter;

(11) notify the service planning team of the information conveyed to the service coordinator pursuant to §9.178(v)(3)(C) and (4)(B) of this subchapter (relating to Certification Principle: Quality Assurance);

(12) if a change to an individual's PDP is needed, other than as required by §9.166 of this subchapter:

(A) communicate the need for the change to the individual or LAR, the program provider, and other appropriate persons; and

(B) revise the PDP as necessary;

(13) provide an individual's program provider a copy of the individual's current PDP;

(14) monitor the delivery of HCS Program and non-HCS Program services to an individual;

(15) document whether an individual progresses toward desired outcomes identified on the individual's PDP;

(16) together with the program provider, ensure the coordination and compatibility of HCS Program services with non-HCS Program services;

(17) for an individual who has had a guardian appointed, determine, at least annually, if the letters of guardianship are current;

(18) for an individual who has not had a guardian appointed, make a referral of guardianship to a court, if appropriate;

(19) immediately notify the program provider if the service coordinator becomes aware that an emergency necessitates the provision of an HCS Program service to ensure the individual's health or safety and the service is not on the IPC or exceeds the amount on the IPC;

(20) if informed by the program provider that an individual's HCS Program services have been suspended:

(A) ensure that the program provider enters necessary information in CARE to inform DADS of the suspension;

(B) review the individual's status and document in the individual's record the reasons for continuing the suspension, at least every 90 calendar days after the effective date of the suspension; and

(C) to continue suspension of the services for more than 270 calendar days, submit to DADS written documentation of each review made in accordance with subparagraph (B) of this paragraph and a request for approval by DADS to continue the suspension;

(21) notify the program provider if the service coordinator becomes aware that an individual has been admitted to a setting described in §9.155(d) of this subchapter (relating to Eligibility Criteria and Suspension of HCS Program Services);

(22) if the service coordinator determines that HCS Program services provided to an individual should be terminated, including for a reason described in §9.158(l)(9) of this subchapter:

(A) document a description of:

(i) the situation that resulted in the service coordinator's determination that services should be terminated;

(ii) the attempts by the service coordinator to resolve the situation; and

(B) send a written request to terminate the individual's HCS Program services to DADS and include the documentation required by subparagraph (A) of this paragraph;

(C) provide a copy of the written request and the documentation required by subparagraph (A) of this paragraph to the program provider;

(23) if an individual requests termination of all HCS Program services, the service coordinator must, within ten calendar days after the individual's request:

(A) inform the individual or LAR of:

(i) the individual's option to transfer to another program provider;

(ii) the consequences of terminating HCS Program services; and

(iii) possible service resources upon termination; and

(B) submit documentation to DADS that:

(i) states the reason the individual is making the request; and

(ii) demonstrates that the individual or LAR was provided the information required by subparagraph (A)(ii) and (iii) of this paragraph;

(24) manage the process to transfer an individual's HCS Program services from one program provider to another or one CDSA to another in accordance with DADS instructions, including:

(A) informing the individual or LAR who requests a transfer to another program provider or CDSA that the service coordinator will manage the transfer process;

(B) informing the individual or LAR that the individual or LAR may choose to receive HCS Program services from any available program provider (i.e., a program provider whose enrollment has not reached its service capacity in CARE) or CDSA; and

(C) if the individual or LAR has not selected another program provider or CDSA, provide the individual or LAR a list of available HCS Program providers and CDSAs and contact information in the geographic locations preferred by the individual or LAR;

(25) be objective in assisting an individual or LAR in selecting a program provider or CDSA;

(26) at the time of assignment and as changes occur, ensure that an individual and LAR and program provider are informed of the name of the individual's service coordinator and how to contact the service coordinator;

(27) unless contraindications are documented with justification by the service planning team, ensure that a school-age individual receives educational services in a six-hour-per-day program, five days per week, provided by the local school district and that no individual receives educational services at a state supported living center or at a state center;

(28) unless contraindications are documented with justification by the service planning team, ensure that an adult individual under retirement age is participating in a day activity of the individual's choice that promotes achievement of PDP outcomes for at least six hours per day, five days per week;

(29) unless contraindications are documented with justification by the service planning team, ensure that a pre-school-age individual receives an early childhood education with appropriate activities and services, including small group and individual play with peers without disabilities;

(30) unless contraindications are documented with justification by the service planning team, ensure that an individual of retirement age has opportunities to participate in day activities appropriate to individuals of the same age and consistent with the individual's or LAR's choice;

(31) unless contraindications are documented with justification by the service planning team, ensure that each individual is offered choices and opportunities for accessing and participating in community activities and experiences available to peers without disabilities;

(32) assist an individual to meet as many of the individual's needs as possible by using generic community services and resources in the same way and during the same hours as these generic services are used by the community at large;

(33) for an individual receiving foster/companion care, residential support, or supervised living, ensure that the individual or LAR is involved in planning the individual's residential relocation, except in a case of an emergency;

(34) if the program provider notifies the service coordinator that the program provider is unable to locate the parent or LAR in accordance with §9.174(a)(8)(D) of this subchapter (relating to Certification Principles: Service Delivery) or the MRA notifies the service coordinator that the MRA is unable to locate the parent or LAR in accordance with §9.167(b)(9) of this subchapter (relating to Permanency Planning):

(A) make reasonable attempts to locate the parent or LAR by contacting a person identified by the parent or LAR in the contact information described in paragraph (36)(A) - (B) of this subsection; and

(B) notify DADS, no later than 30 calendar days after the date the service coordinator determines the service coordinator is unable to locate the parent or LAR, of the determination and request that DADS initiate a search for the parent or LAR;

(35) if the service coordinator determines that a parent's or LAR's contact information described in paragraph (36)(A) of this subsection is no longer current:

(A) make reasonable attempts to locate the parent or LAR by contacting a person identified by the parent or LAR in the contact information described in paragraph (36)(B) of this subsection; and

(B) notify DADS, no later than 30 calendar days after the date the service coordinator determines the service coordinator is unable to locate the parent or LAR, of the determination and request that DADS initiate a search for the parent or LAR;

(36) request from and encourage the parent or LAR of an individual under the age of 22 years requesting or receiving supervised living or residential support to provide the service coordinator with the following information:

(A) the parent's or LAR's:

(i) name;

(ii) address;

(iii) telephone number;

(iv) driver license number and state of issuance or personal identification card number issued by the Department of Public Safety; and

(v) place of employment and the employer's address and telephone number;

(B) name, address, and telephone number of a relative of the individual or other person whom DADS or the service coordinator may contact in an emergency situation, a statement indicating the relationship between that person and the individual, and at the parent's or LAR's option:

(i) that person's driver license number and state of issuance or personal identification card number issued by the Department of Public Safety; and

(ii) the name, address, and telephone number of that person's employer; and

(C) a signed acknowledgement of responsibility stating that the parent or LAR agrees to:

(i) notify the service coordinator of any changes to the contact information submitted; and

(ii) make reasonable efforts to participate in the individual's life and in planning activities for the individual;

(37) within three business days after initiating supervised living or residential support to an individual under 22 years of age:

(A) provide the information listed in subparagraph (B) of this paragraph to the following:

(i) the CRCG for the county in which the individual's LAR lives (see www.hhsc.state.tx.us for a listing of CRCG chairpersons by county); and

(ii) the local school district for the area in which the three- or four-person residence is located, if the individual is at least three years of age, or the early childhood intervention (ECI) program for the county in which the residence is located, if the individual is less than three years of age (see www.dars.state.tx.us or call 1-800-250-2246 for a listing of ECI programs by county); and

(B) as required by subparagraph (A) of this paragraph, provide the following information to the entities described in subparagraph (A) of this paragraph:

(i) the individual's full name;

(ii) the individual's gender;

(iii) the individual's ethnicity;

(iv) the individual's birth date;

(v) the individual's social security number;

(vi) the LAR's name, address, and county of residence;

(vii) the date of initiation of supervised living or residential support;

(viii) the address where supervised living or residential support is provided; and

(ix) the name and phone number of the person providing the information; and

(38) for an applicant or individual under 22 years of age seeking or receiving supervised living or residential support:

(A) make reasonable accommodations to promote the participation of the LAR in all planning and decision making regarding the individual's care, including participating in:

(i) the initial development and annual review of the individual's PDP;

(ii) decision making regarding the individual's medical care;

(iii) routine service planning team meetings; and

(iv) decision making and other activities involving the individual's health and safety;

(B) ensure that reasonable accommodations include:

(i) conducting a meeting in person or by telephone, as mutually agreed upon by the program provider and the LAR;

(ii) conducting a meeting at a time and location, if the meeting is in person, that is mutually agreed upon by the program provider and the LAR;

(iii) if the LAR has a disability, providing reasonable accommodations in accordance with the Americans with Disabilities Act, including providing an accessible meeting location or a sign language interpreter, if appropriate; and

(iv) providing a language interpreter, if appropriate;

(C) provide written notice to the LAR of a meeting to conduct an annual review of the individual's PDP at least 21 calendar days before the meeting date and request a response from the LAR regarding whether the LAR intends to participate in the annual review;

(D) before an individual who is under 18 years of age, or who is 18-22 years of age and has an LAR, moves to another residence operated by the program provider, attempt to obtain consent for the move from the LAR unless the move is made because of a serious risk to the health or safety of the individual or another person; and

(E) document compliance with subparagraphs (A) - (D) of this paragraph in the individual's record.

§9.191: Mra Compliance Review

(a) DADS conducts a compliance review of each MRA, at least annually, to determine if the MRA is in compliance with:

(1) Chapter 2, Subchapter L, of this title (relating to Service Coordination For Individuals with Mental Retardation);

(2) §9.190 of this subchapter (relating to MRA Requirements for Providing Service Coordination in the HCS Program); and

(3) other requirements for the MRA as described in this subchapter.

(b) If any item of noncompliance remains uncorrected by the MRA at the time of the review exit conference, the MRA must submit to DADS a plan of correction in accordance with the performance contract between DADS and the MRA. DADS may take action as specified in the performance contract if the MRA fails to submit or implement an approved plan of correction.

Comments

Source Note: The provisions of this §9.191 adopted to be effective June 1, 2010, 35 TexReg 4441

Subchapter E

Division 1

§9.201: Purpose

The purpose of this subchapter is to describe:

(1) policies and procedures for the Intermediate Care Facilities for the Mentally Retarded (ICF/MR) Program in Texas;

(2) responsibilities of program providers in the ICF/MR Program;

(3) rights and protections for persons applying for and receiving ICF/MR Program services; and

(4) responsibilities of mental retardation authorities (MRAs).

Comments

Source Note: The provisions of this §9.201 adopted to be effective January 1, 2001, 25 TexReg 12790; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841

§9.202: Application

This subchapter applies to provider applicants, program providers, and MRAs.

Comments

Source Note: The provisions of this §9.202 adopted to be effective January 1, 2001, 25 TexReg 12790; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841

§9.203: Definitions

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

(1) Active treatment--Continuous, aggressive, consistent implementation of a program of habilitation, specialized and generic training, treatment, health services, and related services. 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. 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.

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

(A) interactions with the individual;

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

(C) knowledge of, sensitivity to, and advocacy for the individual's needs, preferences, values, and beliefs.

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

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

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

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

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

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

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

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

(6) Applied income--The portion of an individual's cost of care that the individual is responsible for paying. The amount of an individual's applied income is determined by the policies and procedures authorized by the Health and Human Services Commission and depends on the individual's earned and unearned income.

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

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

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

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

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

(C) a functional analysis of the events which contribute to or maintain the targeted behavior;

(D) detailed procedures for implementing the plan;

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

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

(G) methods for evaluating plan effectiveness;

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

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

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

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

(12) CARE--DADS' Client Assignment and Registration System, a database with demographic and other data about an individual who is receiving services and supports or on whose behalf services and supports have been requested.

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

(14) CFR (Code of Federal Regulations)--The compilation of federal agency regulations.

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

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

(17) CRCG (Community Resource Coordination Group)--A local interagency group composed of public and private agencies that develops service plans for individuals whose needs can be met only through interagency coordination and cooperation. The group's role and responsibilities are described in the Memorandum of Understanding on Coordinated Services to Persons Needing Services from More Than One Agency, available on the Health and Human Services Commission website at www.hhsc.state.tx.us/crcg/crcg.htm.

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

(19) Day--Calendar day, unless otherwise specified.

(20) Department--Department of Aging and Disability Services.

(21) Discharge--The absence, for a full day or more, of an individual from the facility in which the individual resides, if such absence is not during a therapeutic, extended, or special leave, as described in §9.226 of this subchapter (relating to Leaves).

(22) DPoC (directed plan of correction)--A plan developed by DADS' sanction team that requires a program provider to take specified actions within specified time frames to correct the program provider's failure to meet one or more federal standards of participation (SoPs) or conditions of participation (CoPs) or lack of compliance with one or more state rules.

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

(24) Emergency situation--An unexpected situation involving an individual's health, safety, or welfare, of which a person of ordinary prudence would determine that the LAR should be informed, such as:

(A) an individual needing emergency medical care;

(B) an individual being removed from his residence by law enforcement;

(C) an individual leaving his residence without notifying staff and not being located; and

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

(25) Excluded--Temporarily or permanently prohibited by a state or federal authority from participating as a provider in a federal health care program, as defined in 42 USC §1302a-7b(f).

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

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

(28) Family-based alternative--A family setting in which the family provider or providers are specially trained to provide support and in-home care for children with disabilities or children who are medically fragile.

(29) Full day--A 24-hour period extending from midnight to midnight.

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

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

(32) ICAP (Inventory for Client and Agency Planning)--A validated, standardized assessment that measures the level of supervision an individual requires and, thus, the amount and intensity of services and supports an individual needs.

(33) ICF/MR Program--The Intermediate Care Facilities for Persons with Mental Retardation Program, which provides Medicaid-funded residential services to individuals with mental retardation or a related condition.

(34) IDT (interdisciplinary team)--A group of people assembled by the program provider who possess the knowledge, skills, and expertise to assess an individual's needs and make recommendations for the individual's IPP. The group includes the individual, LAR, mental retardation professionals and paraprofessionals and, with approval from the individual or LAR, other concerned persons.

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

(36) IPP (individual program plan)--A plan developed by an individual's IDT that identifies the individual's training, treatment, and habilitation needs and describes services to meet those needs.

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

(38) LAR (legally authorized representative)--A person authorized by law to act on behalf of an individual with regard to a matter described in this subchapter, and may include a parent, guardian, managing conservator of a minor individual, a guardian of an adult individual, or legal representative of a deceased individual.

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

(40) LON (level of need)--An assignment given by DADS to an individual upon which reimbursement for ICF/MR Program services is based. The LON assignment is derived from the service level score obtained from the administration of the ICAP to the individual and from selected items on the MR/RC Assessment.

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

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

(A) has a significant recovery period;

(B) presents a significant risk;

(C) employs a general anesthetic; or

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

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

(A) has a significant recovery period;

(B) presents a significant risk;

(C) employs a general anesthetic; or

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

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

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

(46) MRA (mental retardation authority)--An entity to which the Health and Human Services Commission's authority and responsibility described in THSC, §531.002(11) has been delegated.

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

(48) Natural support network--Those persons, including family members, church members, neighbors, and friends, who assist and sustain an individual with supports that occur naturally within the individual's environment and that are not reimbursed or purposely developed by a person or system.

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

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

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

(52) PDP (person-directed plan)--A plan of services and supports developed under the direction of an individual or LAR with the support of MRA or program provider staff and other people chosen by the individual or LAR.

(53) Permanency planning--A philosophy and planning process that focuses on the outcome of family support for an individual under 22 years of age by facilitating a permanent living arrangement in which the primary feature is an enduring and nurturing parental relationship.

(54) Permanency Planning Review Screen--A screen in CARE that, when completed by an MRA, identifies community supports needed to achieve an individual's permanency planning outcomes and provides information necessary for approval of the individual's initial and continued residence in a facility.

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

(56) Personal hold--

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

(i) free movement or normal functioning of all or a portion of an individual's body; or

(ii) normal access by an individual to a portion of the individual's body.

(B) Physical guidance or prompting of brief duration becomes a physical restraint if the individual resists the guidance or prompting.

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

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

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

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

(61) Program provider--An entity with whom DADS has a provider agreement.

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

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

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

(65) Related condition--As defined in 42 CFR §435.1009, a severe and chronic disability that:

(A) is attributed to:

(i) cerebral palsy or epilepsy; or

(ii) any other condition, other than mental illness, found to be closely related to mental retardation because the condition results in impairment of general intellectual functioning or adaptive behavior similar to that of individuals with mental retardation, and requires treatment or services similar to those required for individuals with mental retardation;

(B) is manifested before the individual reaches age 22;

(C) is likely to continue indefinitely; and

(D) results in substantial functional limitation in at least three of the following areas of major life activity:

(i) self-care;

(ii) understanding and use of language;

(iii) learning;

(iv) mobility;

(v) self-direction; and

(vi) capacity for independent living.

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

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

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

(A) the date it was created; and

(B) the cost of the item or service.

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

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

(71) Specially constituted committee--The committee designated by the program provider in accordance with 42 CFR §483.440(f)(3) that consists of staff, LARs, individuals (as appropriate), qualified persons who have experience or training in contemporary practices to change an individual's inappropriate behavior, and persons with no ownership or controlling interest in the facility. The committee is responsible, in part, for reviewing, approving, and monitoring individual programs designed to manage inappropriate behavior and other programs that, in the opinion of the committee, involve risks to individuals' safety and rights.

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

(73) TAC (Texas Administrative Code)--A compilation of state agency rules published by the Texas Secretary of State in accordance with Texas Government Code, Chapter 2002, Subchapter C.

(74) TDHS--Formerly, this term referred to the Texas Department of Human Services; it now refers to DADS, unless the context concerns Medicaid eligibility. Medicaid eligibility was formerly the responsibility of TDHS; it now is the responsibility of the Health and Human Services Commission.

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

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

(77) Unclaimed personal funds--Personal funds managed by the program provider that have not been transferred to the individual or LAR within 30 days after the individual's discharge.

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

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

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

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

Division 2

§9.206: Application Process

(a) The department will accept an application for enrollment:

(1) from a provider applicant, if the department determines that new or existing ICF/MR Program beds authorized in the Long Term Care Plan for People with Mental Retardation and Related Conditions are available for allocation to a program provider for a new facility not to exceed a capacity of six;

(2) from an assignee, if the department receives notice that a provider agreement is being assigned; or

(3) from a provider applicant, if the provider applicant provides residential services funded with general revenue that have been authorized by the department to be refinanced as ICF/MR Program services.

(b) The department will publish a notice in the Texas Register, an official publication of the Texas Office of the Secretary of State (http://www.sos.state.tx.us/texreg/index.html), if it is accepting applications for enrollment in accordance with subsection (a)(1) of this section.

(c) A provider applicant must request an application for enrollment in accordance with the published notice and must submit the application according to the notice and the department's application instructions.

(d) A provider applicant must complete all portions of the application for enrollment and provide information according to the department's application instructions, including but not limited to:

(1) providing an operational or organizational plan that describes in detail how the provider applicant will ensure sufficient staff resources are available to provide all services required by the ICF/MR Program; and

(2) providing the resume or curriculum vita of the provider applicant's employee or contractor who will manage and oversee the provision of ICF/MR Program services, which:

(A) demonstrates that the employee or contractor has a minimum of three years verifiable work experience in planning and providing direct services to people with mental retardation or other developmental disabilities; and

(B) is accompanied by letter(s) of reference verifying the work experience in subparagraph (A) of this paragraph.

(e) The department may reject an application for enrollment for good cause, including but not limited to:

(1) the application is incomplete in any aspect;

(2) the application is not submitted in accordance with the department's application instructions or published notice;

(3) the application was submitted under the circumstances described in subsection (a)(1) of this section and requests a capacity exceeding six;

(4) the application contains false information;

(5) the application does not contain original signatures and dates;

(6) the department has terminated a contract with the provider applicant or its affiliate during the three years prior to the application date;

(7) the provider applicant or its affiliate has been excluded or debarred;

(8) another state or federal agency has terminated a contract, licensure, or certification of the provider applicant or its affiliate during the three years prior to the application date;

(9) the provider applicant or its affiliate has an outstanding Medicaid program audit exception or other unresolved financial liability owed to the State of Texas;

(10) the provider applicant or its affiliate is ineligible to enroll as a Medicaid provider for reasons relating to criminal history records as set forth in department rules; or

(11) the provider applicant or its affiliate terminated a provider agreement in a federal health care program, as defined in 42 USC, §1302a-7b(f), while an adverse action or sanction was in effect.

(f) The department will review an application for enrollment received by the department and provide written notice to the provider applicant stating whether the application was approved or rejected.

(g) The department will not enter into a provider agreement with a provider applicant whose application for enrollment is rejected.

(h) If a provider applicant's application for enrollment is approved:

(1) the department will notify the state survey agency of the application approval; and

(2) the provider applicant must contact the state survey agency to initiate licensure and certification action.

Comments

Source Note: The provisions of this §9.206 adopted to be effective January 1, 2001, 25 TexReg 12790; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841

§9.207: Certification and Licensure

(a) To obtain a provider agreement under §419.208 of this title (relating to Provider Agreement), a provider applicant whose application for enrollment is approved must receive licensure under THSC, Chapter 252, if applicable, and certification as an ICF/MR by the state survey agency within 270 days from the date the department approves the application, except as provided in subsection (b) of this section.

(b) The department may, for good cause, grant an extension of the 270 day period described in subsection (a) of this section for a period of time to be determined by the department if a provider applicant submits to the department a written request for an extension, including supporting documentation, prior to the expiration of the 270 day period. For purposes of this subsection, good cause includes, but is not limited to:

(1) construction of the facility is delayed for causes beyond the provider applicant's control, such as a natural disaster;

(2) the state survey agency is unable to make an on-site visit to the facility within the 270 day period, through no fault of the provider applicant; or

(3) construction of the facility is delayed because of litigation regarding the construction or operation of the facility.

(c) The department will not enter into a provider agreement with a provider applicant who does not obtain licensure and certification in accordance with this section.

Comments

Source Note: The provisions of this §9.207 adopted to be effective January 1, 2001, 25 TexReg 12790; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841

§9.208: Provider Agreement

(a) The department will enter into a provider agreement only with a provider applicant that has received licensure under THSC, Chapter 252, if applicable, and certification by the state survey agency in accordance with §419.207 of this title (relating to Certification and Licensure).

(b) The effective date of an initial provider agreement is the effective date of certification by the state survey agency.

(c) Except as provided in subsection (d) of this section, the term of an initial provider agreement is the certification period of the facility set by the state survey agency, not to exceed twelve months.

(d) For good cause, the department may make the term of an initial provider agreement for less than the certification period of the facility set by the state survey agency.

Comments

Source Note: The provisions of this §9.208 adopted to be effective January 1, 2001, 25 TexReg 12790; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841

Division 3

§9.211: Compliance with State and Federal Laws

A program provider must comply with:

(1) applicable state laws and rules, including but not limited to:

(A) this subchapter;

(B) Chapter 409, Subchapter A of this title (relating to General Reimbursement Methodology for all Medical Assistance Programs);

(C) Chapter 409, Subchapter B of this title (relating to Adverse Actions);

(D) Chapter 409, Subchapter C of this title (relating to Fraud and Abuse and Recovery of Benefits);

(E) Chapter 419, Subchapter G of this title (relating to Medicaid Fair Hearings);

(F) 1 TAC Chapter 355, Subchapter D (relating to Reimbursement Methodology); and

(G) 1 TAC §§355.701-355.709; and

(2) applicable federal laws and regulations, including but not limited to:

(A) 42 CFR Parts 440, 441, 442, 455, 456, and 483; and

(B) 45 CFR Parts 46, 80, 84, 90, and 91.

Comments

Source Note: The provisions of this §9.211 adopted to be effective September 1, 2001, 26 TexReg 5384; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841

§9.212: Non-licensed Providers Meeting Licensure Standards

Program providers that, in accordance with the THSC, §252.003, are exempt from the license required by THSC, §252.031, must comply with the following subchapters of 40 TAC Chapter 90 (relating to Intermediate Care Facilities for Persons with Mental Retardation or Related Conditions):

(1) Subchapter C (relating to Standards for Licensure);

(2) Subchapter D (relating to General Requirements for Facility Construction); and

(3) Subchapter F (relating to Inspections, Surveys, and Visits).

Comments

Source Note: The provisions of this §9.212 adopted to be effective July 26, 2001, 26 TexReg 5402; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841

§9.213: Records

(a) A program provider must maintain a copy of the following records for each individual:

(1) the birth certificate;

(2) relevant legal documents including documents relating to guardianship, marital status, custody of a minor, or immigration status, if any;

(3) the Social Security card;

(4) a current photograph;

(5) immunization records;

(6) height and weight records;

(7) seizure records, if any;

(8) the most recent physician's orders, including treatment and diet orders;

(9) the most recent nursing care plan, if any;

(10) the most recent laboratory test results, if any;

(11) any significant medical reports, including reports regarding the most recent chest X-ray, electrocardiogram (EKG), and electroencephalogram (EEG), if any;

(12) the most recent medical examination results and a summary of the medical history, including all major surgeries, significant acute illnesses, and injuries requiring hospitalization or a long recovery period;

(13) a summary of the medication history for the last five years or from the time services were initiated, whichever is most recent, including start and stop dates, dose ranges, effectiveness and reactions of all long-term medications and antibiotics;

(14) the most recent dental examination results and a summary of the dental history, including all oral surgeries, extractions, restorations, appliances, and types of anesthesia required for dental work;

(15) the social history and the most recent psychological examination results;

(16) Medicaid and, if applicable, Medicare or third-party insurance cards;

(17) records necessary to disclose the nature and extent of services provided to the individual; and

(18) any other records required by this subchapter or the provider agreement.

(b) A program provider must retain the records described in subsection (a) of this section until the latest of the following occurs:

(1) five years elapse from the date the records were created;

(2) any audit exception or litigation involving the records is resolved; or

(3) the individual becomes 21 years of age.

(c) A program provider must, upon request, make available to the department or its designee the records described in subsection (a) of this section.

Comments

Source Note: The provisions of this §9.213 adopted to be effective September 1, 2001, 26 TexReg 5384; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841

§9.214: Certified Capacity of a Facility

(a) The certified capacity of a facility will be established by the department.

(b) A program provider may request that the department decrease the certified capacity of its facility.

(1) The class of a non-state operated facility that has its certified capacity decreased will be determined according to 1 TAC §355.456(b) (relating to Rate Setting Methodology) for reimbursement purposes.

(2) The department will amend the Long Term Care Plan for People with Mental Retardation and Related Conditions to reflect the decrease in certified capacity of a facility or will determine that beds authorized by the Long Term Care Plan for People with Mental Retardation and Related Conditions are available for allocation.

(c) To ensure appropriate utilization of state schools and state centers, the department may increase the certified capacity of a state school and state center, if the total capacity of all state schools and state centers does not exceed the authorized bed capacity for "campus facilities" in the Long Term Care Plan for People with Mental Retardation and Related Conditions.

(d) If the department determines that redistributing the certified capacity of one or more existing facilities, other than state schools or state centers, into two or more new, smaller facilities may improve utilization of ICF/MR resources, the department may publish notice in the Texas Register that it is accepting requests from program providers to redistribute the certified capacity of their facilities. A program provider may submit a request to redistribute capacity. Such a request must be submitted according to the published notice and the department's instructions. After reviewing the submitted requests, the department may negotiate a plan and enter into an agreement with a program provider to redistribute the program provider's certified capacity.

Comments

Source Note: The provisions of this §9.214 adopted to be effective September 1, 2001, 26 TexReg 5384; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841

§9.215: Relocation of Facility

(a) Prior to relocating its facility, a program provider must receive department approval of a facility relocation application obtained from the department, if certification of the facility at a new physical address will be sought.

(b) To request the approval required by subsection (a) of this section, a program provider must, prior to the facility relocation, complete and submit to the department's Office of Medicaid Administration, a facility relocation application.

(c) After reviewing an application, the department will provide written notice to the program provider of its approval or denial. An incomplete application will not be approved.

(d) If the department approves the application for facility relocation, the department will notify the state survey agency of the facility relocation and request that the state survey agency initiate licensure and certification action of the relocated facility.

(e) Prior to the relocation, the program provider must notify each individual residing in the facility and LAR in writing of the date of facility relocation and the address of the relocated facility or explain to the individual or LAR why shorter notification was necessary.

(f) At the time of relocation, the program provider must notify the MRA in whose local service area the facility has relocated of the name and address of the relocated facility in writing.

(g) If the relocated facility is licensed in accordance with state law and determined by the state survey agency to meet certification requirements, the department will initiate an amendment to the provider agreement to reflect the address of the relocated facility. The program provider must execute and submit the amendment to the department.

Comments

Source Note: The provisions of this §9.215 adopted to be effective September 1, 2001, 26 TexReg 5384; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841

§9.216: Renewal of Provider Agreement

(a) If the state survey agency determines that a program provider meets all requirements for participation in the ICF/MR program prior to the expiration of the provider agreement, the department will renew the provider agreement. The duration of the renewed provider agreement will be the certification period, not to exceed 12 months, and the effective date will be the day after the expiration of the previous provider agreement.

(b) Notwithstanding subsection (a) of this section, the department may, for good cause, renew a provider agreement for less than the certification period.

(c) A provider agreement will be renewed by the department by written notice, setting forth the terms and conditions of the renewal, from the department to the program provider. Failure of the program provider to notify the department of the program provider's objection to such terms and conditions within 20 days of the date of the notice constitutes the program provider's acceptance of the renewal.

Comments

Source Note: The provisions of this §9.216 adopted to be effective September 1, 2001, 26 TexReg 5384; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841

§9.217: Assignment of Provider Agreement

(a) A program provider must notify the department's Office of Medicaid Administration in writing at least 30 days prior to the date of a proposed assignment. The notice must include:

(1) the legal name and federal tax identification number of the proposed assignee;

(2) the proposed date of the assignment, which must be on the first day of a month;

(3) the provider vendor number of the assignor;

(4) an application for enrollment obtained from the department and completed by the assignee as required for provider applicants by §419.206(d) of this title (relating to Application Process); and

(5) a copy of the assignment agreement, which must include a statement that the assignee:

(A) must keep, perform, and fulfill all of the terms, conditions, and obligations that must be performed by the assignor under the provider agreement;

(B) is subject to all pending conditions that exist against the assignor including, but not limited to, any plan of correction, audit exception, vendor hold, or proposed contract termination; and

(C) is liable to the department for any liabilities or obligations that arise from any act, event, or condition that occurred or existed prior to the effective date of the assignment and that is identified in any survey, review, or audit conducted by the department.

(b) The department may establish the date of assignment if:

(1) notice of a proposed assignment is not provided to the department at least 30 days prior to the proposed date of assignment; or

(2) the proposed date of assignment is not on the first day of a month.

(c) Upon receipt of notice provided in accordance with subsection (a) of this section, the department will:

(1) impose a vendor hold on payments due to the assignor under the provider agreement until an audit conducted in accordance with §419.269 of this title (relating to Audits) is complete; and

(2) review the application for enrollment.

(d) After the department reviews the application for enrollment, the department will provide written notice to the assignee and assignor stating whether the application is approved or rejected.

(e) The department may reject an application for enrollment for the same reasons a provider applicant's application for enrollment may be rejected as set forth in §419.206(e) of this title (relating to Application Process). If the department rejects the application for enrollment, the assignor may withdraw the proposed assignment. If the assignment is not withdrawn, the department may terminate the assigned provider agreement.

(f) If the department approves the proposed assignee's application for enrollment, the department will notify the state survey agency of the assignment and request that the state survey agency initiate licensure and certification action.

(g) The assignor must, prior to the effective date of the assignment, give written notice to each individual residing in the facility or LAR of the proposed assignment and the proposed effective date of the assignment.

(h) If the facility is licensed in accordance with state law and determined by the state survey agency to meet certification requirements on or before the 90th day after the effective date of the assignment, the department will pay the assignee for services provided on and after the effective date of the assignment, except the department will not pay the assignee for any period of time during the 90-day period that the facility was determined by the state survey agency to not meet certification requirements.

(i) If the facility is not licensed in accordance with state law and determined by the state survey agency to meet certification requirements on or before the 90th day after the effective date of the assignment, the department will terminate the provider agreement effective on the 91st day. A survey completed more than 90 days after the effective date of the assignment will not be used to determine if the facility met the licensure and certification requirements within the 90-day period.

(j) During the 90-day period after the effective date of the assignment, the provider agreement is subject to sanctions, including termination, in accordance with Division 7 of this subchapter (relating to Provider Agreement Sanctions).

(k) Upon the effective date of the assignment, the assignee:

(1) must keep, perform, and fulfill all of the terms, conditions and obligations that must be performed by the assignor under the provider agreement;

(2) is subject to all pending conditions which exist against the assignor, including but not limited to, any plan of correction, audit exception, vendor hold, or proposed contract termination; and

(3) is liable to the department for any liabilities or obligations that arise from any act, event, or condition that occurred or existed prior to the effective date of the assignment and that is identified in any survey, review, or audit conducted by the department.

(l) The assignor must complete and submit billing claims to the department in accordance with §419.219 of this title (relating to Provider Reimbursement) for services that were provided prior to the effective date of the assignment.

Comments

Source Note: The provisions of this §9.217 adopted to be effective September 1, 2001, 26 TexReg 5384; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841

§9.218: Licensure Action and Facility Closure

(a) A program provider must immediately notify the department's Office of Medicaid Administration, in writing, if the program provider receives:

(1) a notice of licensure denial, suspension or revocation, in accordance with THSC, §252.035;

(2) a notice of an emergency licensure suspension or closing order, in accordance with THSC, §252.061; or

(3) an order for the involuntary appointment of a trustee to operate a facility, in accordance with THSC, §252.093.

(b) If a program provider is voluntarily closing a facility, the program provider must submit to the department, at least 60 days prior to the effective date of the closure:

(1) written notice of its intent to close the facility; and

(2) a written plan to discharge and relocate individuals who reside in the closing facility.

(c) At least 30 days before a facility closes, the program provider must notify each individual residing in the facility and LAR in writing of the proposed closure and the date the facility will close or explain to the individual and LAR why shorter notification was necessary.

(d) If a facility is closing, the department will impose a vendor hold on payments due to the program provider under the provider agreement until an audit conducted in accordance with §419.269 of this title (relating to Audits) is complete.

(e) An MRA must assist in relocating individuals who reside in a closing facility, as requested by the department.

Comments

Source Note: The provisions of this §9.218 adopted to be effective September 1, 2001, 26 TexReg 5384; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841

§9.219: Provider Reimbursement

(a) The department will pay a program provider for ICF/MR Program services provided to individuals enrolled in the ICF/MR Program. Such services include:

(1) room and board;

(2) active treatment; and

(3) medical services.

(b) The department will reimburse a program provider other than a state school or state center for durable medical equipment in accordance with 1 TAC §355.455 and the department's written procedures for durable medical equipment reimbursement.

(c) A program provider must accept the current reimbursement rate or the rate as it may hereafter be amended, as payment in full for ICF/MR Program services provided to an individual enrolled in the ICF/MR Program, and make no additional charge to the individual, any member of the individual's family, or any other source for any item or service including a third party payor, except as allowed by federal or state laws, rules or regulations or the Medicaid State Plan.

(d) To receive payment for ICF/MR Program services, a program provider must:

(1) prepare and submit a clean claim, as defined in 42 CFR §447.45(b), for such services in accordance with this subchapter and the NHIC Claims Management System User Guide; and

(2) submit such a claim within 12 months after the date of service or the date the individual's eligibility is established, whichever is later.

(e) For the purposes of this section, "date of service" is defined as the last day of the month in which the service was provided.

(f) The department will not pay a program provider or will recoup payments made for services provided to an individual:

(1) if the individual does not meet the eligibility criteria described in §419.236 of this title (relating to Eligibility Criteria);

(2) if enrollment of the individual is not complete, as described in §419.241(h) of this title (relating to Applicant Enrollment);

(3) if the individual does not have a valid LOC determination;

(4) if the program provider does not have a signed and dated MR/RC Assessment for the individual;

(5) if the MR/RC Assessment electronically transmitted to the department for the individual does not contain information identical to information on the signed MR/RC Assessment;

(6) if the individual is an inpatient of a hospital or nursing facility, is enrolled in a waiver program established under §1915(c) of the Social Security Act, or has elected to receive hospice care in accordance with 40 TAC §30.16 (relating to Election of Hospice Care);

(7) during a discharge of an individual, including the effective date of discharge as described in §419.227(b) of this title (relating to Discharge From a Facility);

(8) except as provided in subsection (f) of this section, if the program provider does not have a provider agreement with the department; or

(9) if the program provider does not submit a clean claim for the service in accordance with subsection (d) of this section.

(g) The department may pay a program provider for ICF/MR services up to 30 days after its provider agreement has expired or been terminated if the services were provided to individuals admitted to the facility before the effective date of the expiration or termination and reasonable efforts are being made to move the individuals from the facility.

Comments

Source Note: The provisions of this §9.219 adopted to be effective September 1, 2001, 26 TexReg 5384; amended to be effective January 5, 2003, 27 TexReg 12251; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841

Division 4

§9.221: Durable Medical Equipment

A program provider who arranges for durable medical equipment for an individual residing in the facility must:

(1) ensure that the individual receives the equipment prescribed, the equipment fits properly, if applicable, and the individual's caregivers, as appropriate, receive instruction regarding the equipment's use; and

(2) document compliance with the requirements of paragraph (1) of this section in the individual's record.

Comments

Source Note: The provisions of this §9.221 adopted to be effective January 1, 2001, 25 TexReg 12790; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841

§9.222: Permanency Planning and Lar Participation for Individuals Under 22 Years of Age

(a) As required by Texas Government Code, §531.153, a program provider must incorporate permanency planning as an integral part of the IPP for each individual under 22 years of age residing in the facility. In order to accomplish the permanency planning goal in accordance with §9.244(f) of this subchapter (relating to Applicant Enrollment in the ICF/MR Program), the program provider must identify in the IPP, as appropriate to the individual's needs:

(1) for an individual under 18 years of age, the activities, supports, and services that, when provided or facilitated by the program provider or MRA, will enable the individual to live with a family; or

(2) for an individual age 18 to 22 years of age, the activities, supports, and services that, when provided or facilitated by the program provider or MRA, will result in the individual having a consistent and nurturing environment in the least restrictive setting, as defined by the individual and LAR.

(b) A program provider must take the following actions to assist an MRA in conducting permanency planning for an individual under 22 years of age:

(1) cooperate with the MRA responsible for conducting permanency planning by:

(A) allowing access to an individual's records or providing other information in a timely manner as requested by the MRA or the Health and Human Services Commission;

(B) participating in meetings to review the individual's permanency plan; and

(C) identifying, in coordination with the individual's MRA, activities, supports, and services that can be provided by the family, LAR, program provider, or the MRA to prepare the individual for an alternative living arrangement;

(2) encourage regular contact between the individual and LAR and, if desired by the individual and LAR, between the individual and advocates and friends in the community to continue supportive and nurturing relationships;

(3) encourage participation in IDT meetings by the LAR, and, if desired by the individual or LAR, by family members, advocates, and friends in the community;

(4) provide the IPP summary to the individual's MRA;

(5) keep a copy of the individual's current permanency plan in the individual's record; and

(6) refrain from providing the LAR with inaccurate or misleading information regarding the risks of moving the individual to another facility or community setting.

(c) Within three days after the admission of an individual under 22 years of age, a program provider must notify the following entities of such admission and provide information in accordance with subsection (d) of this section:

(1) the MRA in whose local service area the facility is located (see www.dads.state.tx.us/contact/mra/index.cfm for a listing of MRAs by county or city);

(2) the CRCG for the county in which the LAR lives (see www.hhsc.state.tx.us/crcg/crcg.htm for a listing of CRCG chairpersons by county); and

(3) the local school district for the area in which the facility is located, if the individual is at least three years of age, or the early childhood intervention (ECI) program for the county in which the facility is located, if the individual is less than three years of age (see www.dars.state.tx.us/ecis/index.shtml or call 1-800-250-2246 for a listing of ECI programs by county).

(d) The program provider's notification given by the program provider in accordance with subsection (c) of this section must include the following information about an individual:

(1) full name;

(2) gender;

(3) ethnicity;

(4) birth date;

(5) Social Security number;

(6) LAR's name, address and county of residence;

(7) date of admission to the facility;

(8) name and address of the facility;

(9) name and phone number of person submitting the notification;

(10) those services from the following listing that will facilitate the individual's permanency planning outcomes:

(A) personal and family support services provided in the individual's home;

(B) residential services provided outside the individual's family or own home;

(C) vocational services; and

(D) training services provided outside of the individual's family or own home, including specialized professional services.

(e) A program provider must:

(1) request from and encourage an LAR to provide the following information for an individual during the annual IPP meeting and, for an applicant, upon admission:

(A) the LAR's:

(i) name;

(ii) address;

(iii) telephone number;

(iv) driver license number and state of issuance or personal identification card number issued by the Department of Public Safety; and

(v) place of employment and the employer's address and telephone number;

(B) the name, address, and telephone number of a relative of the individual or other person whom DADS or the program provider may contact in an emergency situation, a statement indicating the relationship between that person and the individual, and at the LAR's option:

(i) that person's driver license number and state of issuance or personal identification card number issued by the Department of Public Safety; and

(ii) the name, address, and telephone number of that person's employer; and

(C) a signed acknowledgement of responsibility stating that the LAR agrees to:

(i) notify the program provider of any changes to the contact information submitted; and

(ii) make reasonable efforts to participate in the individual's life and in planning activities for the individual; and

(2) inform the LAR that if the information described in paragraph (1) of this subsection is not provided or is not accurate and the program provider and DADS are unable to locate the LAR as described in subsections (j) and (k) of this section, DADS refers the case to the Department of Family and Protective Services.

(f) For an individual under 22 years of age, a program provider must:

(1) make reasonable accommodations to promote the participation of the LAR in all planning and decision-making regarding the individual's care, including participating in:

(A) the initial development and annual review of the individual's IPP;

(B) decision-making regarding the individual's medical care;

(C) routine IDT meetings; and

(D) decision-making and other activities involving the individual's health and safety; and

(2) ensure that reasonable accommodations include:

(A) conducting a meeting in person or by telephone, as mutually agreed upon by the program provider and the LAR;

(B) conducting a meeting at a time and, if the meeting is in person, at a location that is mutually agreed upon by the program provider and the LAR;

(C) if the LAR has a disability, providing reasonable accommodations in accordance with the Americans with Disabilities Act, including providing an accessible meeting location or a sign language interpreter, if appropriate; and

(D) providing a language interpreter, if appropriate.

(g) For an individual under 22 years of age, a program provider must provide written notice to the LAR of a meeting to conduct an annual review of the individual's IPP no later than 21 days before the meeting date and request a response from the LAR.

(h) If an emergency situation occurs, a program provider must attempt to notify the LAR as soon as the emergency situation allows and request a response from the LAR.

(i) If an LAR does not respond to a notice of the individual's IPP review meeting, a request for the LAR's consent, or an emergency situation, the program provider must attempt to locate the LAR by contacting a person identified by the LAR in the contact information described in subsection (e) of this section.

(j) No later than 30 days after the date a program provider determines that it is unable to locate the LAR, the program provider must notify DADS of that determination and request that DADS initiate a search for the LAR.

(k) If, within one year of the date DADS receives the notification described in subsection (j) of this section, DADS is unable to locate the LAR, DADS refers the case to:

(1) the Child Protective Services Division of the Department of Family and Protective Services if the individual is under 18 years of age; or

(2) the Adult Protective Services Division of the Department of Family and Protective Services if the individual is 18-22 years of age.

(l) Before an individual who is under 18 years of age, or who is 18-22 years of age and for whom an LAR has been appointed, is transferred to another facility operated by the transferring program provider, the program provider must attempt to obtain consent for the transfer from the LAR unless the transfer is made because of a serious risk to the health and safety of the individual or another person.

(m) A program provider must document compliance with the requirements of this section in the individual's record.

Comments

Source Note: The provisions of this §9.222 adopted to be effective January 1, 2001, 25 TexReg 12790; amended to be effective March 31, 2002, 27 TexReg 2475; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841; amended to be effective September 1, 2006, 31 TexReg 6795

§9.223: Review of Living Options

(a) At a facility other than a state school or state center, the IDT must discuss living options with the individual and LAR at least annually or upon the request of the individual or LAR. The facility must use the Community ICF/MR Living Options instrument, copies of which are available on the department's website at www.mhmr.state.tx.us/CentralOffice/Medicaid/i.html or by contacting Office of Medicaid Administration, Texas Department of Mental Health and Mental Retardation, P.O. Box 12668, Austin, Texas 78711. State schools and state centers must discuss living options with the individual and LAR in accordance with §412.274 of this title (relating to Consideration of Living Options for Individuals Residing in State MR Facilities).

(1) During the discussion, the IDT must use information obtained from the MRA in whose local service area the facility is located to inform the individual and LAR of the different types of alternative living arrangements, including:

(A) other ICF/MR Program providers--state schools and state centers and community-based ICF/MRs;

(B) waiver services under §1915(c) of the Social Security Act; and

(C) other community-based services and supports.

(2) The IDT must document the discussion in the IDT summary and file the summary in the individual's record.

(3) If the individual or LAR expresses interest in an alternative living arrangement, the program provider must send a copy of the IDT summary to the MRA in whose local service area the facility is located.

(b) If an MRA receives an IDT summary, the MRA must, within 30 days after receiving the IDT summary:

(1) contact the individual or LAR to discuss the alternative living arrangements in which the individual or LAR has expressed an interest; and

(2) determine if the individual or LAR is interested in seeking an alternative living arrangement in another MRA's local service area and, if so, notify the MRA for that local service area.

(c) The MRA for the local service area in which the individual or LAR is interested in seeking an alternative living arrangement must:

(1) enter on the Client Assignment and Registration (CARE) system the individual's name and the specific type of service requested, if that service will not be available within 30 days of the date of request; and

(2) assist the individual or LAR in accessing the service requested when it becomes available.

Comments

Source Note: The provisions of this §9.223 adopted to be effective September 1, 2001, 26 TexReg 5384; amended to be effective March 31, 2002, 27 TexReg 2475; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841

§9.224: Capacity Assessment

(a) As described in §411.61 of this title, (relating to Memorandum of Understanding Concerning Capacity Assessment for Self Care and Financial Management) a program provider must perform a capacity assessment for an individual receiving services from that program provider if the program provider:

(1) believes a guardian of the person or the estate for that individual may be appropriate and a referral to the appropriate court for guardianship is anticipated; or

(2) is directed to do so by a court.

(b) In conducting the capacity assessment, the program provider must use the Capacity Assessment for Self Care and Financial Management. Copies of this assessment may be obtained by contacting the Office of Policy Development, Texas Department of Mental Health and Mental Retardation, 909 West 45th Street, Austin, Texas, 78756, 512/206-4516, or from the Texas Department of Human Services Long Term Care Policy web site at www.dhs.state.tx.us.

(c) The capacity assessment must be performed by the professional designated by the IDT with assistance from other staff or consultants as requested by the professional or directed by the IDT.

Comments

Source Note: The provisions of this §9.224 adopted to be effective September 1, 2001, 26 TexReg 5384; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841

§9.225: Reporting Abuse, Neglect, and Injuries of Unknown Source

In accordance with 42 CFR §483.420(d)(2), a program provider must immediately report all allegations of mistreatment, neglect, or abuse, as well as injuries of unknown source, in accordance with state law through established procedures. The procedures are as follows:

(1) facilities licensed by TDHS must report allegations and injuries to TDHS in accordance with 40 TAC Chapter 90, Subchapter G, (relating to Abuse, Neglect, and Exploitation; Complaint and Incident Reports and Investigations);

(2) state schools and state centers must report allegations and injuries in accordance with:

(A) Chapter 417, Subchapter K of this title (relating to Abuse, Neglect, and Exploitation in TDMHMR Facilities); and

(B) the Memorandum of Understanding Between Texas Department of Mental Health and Mental Retardation (TDMHMR) and Texas Department of Human Services (TDHS) and Texas Department of Protective and Regulatory Services (TDPRS) concerning Reportable Incidents in State Schools, State Centers, State Operated Community-based MHMR Services, and Community Mental Health and Mental Retardation Centers with Intermediate Care Facilities for the Mentally Retarded (ICFMR) effective March 25, 1996; and

(3) facilities operated by community MHMR centers must report allegations and injuries in accordance with:

(A) Chapter 414, Subchapter L of this title (relating to Abuse, Neglect, and Exploitation in Local Authorities and Community Centers; and

(B) the Memorandum of Understanding Between Texas Department of Mental Health and Mental Retardation (TDMHMR) and Texas Department of Human Services (TDHS) and Texas Department of Protective and Regulatory Services (TDPRS) concerning Reportable Incidents in State Schools, State Centers, State Operated Community-based MHMR Services, and Community Mental Health and Mental Retardation Centers with Intermediate Care Facilities for the Mentally Retarded (ICFMR) effective March 25, 1996.

Comments

Source Note: The provisions of this §9.225 adopted to be effective September 1, 2001, 26 TexReg 5384; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841

§9.226: Leaves

(a) An individual's absence from a facility must meet the requirements of this section to be considered a therapeutic leave, an extended therapeutic leave, or a special leave.

(b) An individual is on a therapeutic leave if:

(1) the individual is absent from the facility one full day or more but less than four consecutive full days;

(2) the individual's IPP provides for therapeutic leave; and

(3) except as provided in subsection (e) of this section, the individual has stayed in the facility overnight since being on a prior therapeutic leave or extended therapeutic leave.

(c) An individual is on an extended therapeutic leave if:

(1) the individual is absent from the facility four consecutive full days or more;

(2) the number of days used by the individual for extended therapeutic leave does not exceed ten during the calendar year in which the leave is being taken;

(3) the individual's IPP provides for the extended therapeutic leave; and

(4) except as provided in subsection (e) of this section, the individual has stayed overnight in the facility since being on a prior extended therapeutic leave or therapeutic leave.

(d) An individual is on a special leave if:

(1) the individual is absent from the facility one full day or more;

(2) the individual's IPP provides for and describes the expected benefits of the special leave;

(3) during the absence, sufficient direct care staff of the program provider are with the individual to meet the requirements set forth in 42 CFR §483.430(d);

(4) during the absence, the program provider incurs the usual costs associated with providing services to the individual, including but not limited to costs necessary to provide meals, lodging, and staff; and

(5) during the absence, the program provider provides the active treatment specified in the individual's IPP.

(e) Once per calendar year, an individual may take a therapeutic leave immediately before or after an extended therapeutic leave without staying overnight in the facility between the two leaves.

(f) There is no limit on the number of therapeutic leaves or special leaves an individual may take.

(g) A program provider must maintain the following written documentation for each leave taken by an individual:

(1) the name of the individual;

(2) the type of leave taken (i.e., therapeutic, extended therapeutic, or special); and

(3) the dates and times of the individual's departure from and return to the facility.

(h) Within three days after an individual's return from leave, a program provider must electronically submit a completed Client Movement form to the department.

Comments

Source Note: The provisions of this §9.226 adopted to be effective September 1, 2001, 26 TexReg 5384; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841

§9.227: Discharge from a Facility

(a) When a discharge occurs, a program provider must comply with 42 CFR §483.440(b)(4) and (5) and this section.

(b) The effective date of a discharge is the first full day the individual is absent from the facility.

(c) Prior to the effective date of a discharge, a program provider must take the following action or document why such action is not feasible:

(1) notify the individual, LAR, and the individual's MRA of the proposed discharge in writing at least 30 days before the effective date of the proposed discharge;

(2) document the reason for the proposed discharge and, if the reason is that the facility can no longer meet the individual's needs, explain why;

(3) counsel the individual or LAR about the proposed discharge, including the potential outcomes of the proposed discharge; and

(4) develop a final summary and post-discharge plan in accordance with 42 CFR §483.440(b)(5) and provide a copy of both documents to the individual, LAR, and the individual's MRA.

(d) If any actions required by subsection (c) of this section are not feasible prior to the effective date of a discharge, a program provider must, within 7 days after the effective date of the discharge, complete the required actions.

(e) Within 3 days after the effective date of a discharge, a program provider must:

(1) electronically submit a completed Client Movement Form to the department; and

(2) submit a paper copy of the completed Client Movement Form to the appropriate TDHS Medicaid eligibility worker.

(f) Except when an individual requires immediate admission to a psychiatric facility for inpatient services as provided in subsection (i) of this section, if a program provider proposes a discharge due to the individual's maladaptive behavior, the discharge must be approved in writing by the department prior to the effective date of the discharge. To request approval, the program provider must submit the following documentation to the department's Office of Medicaid Administration:

(1) a description of the maladaptive behavior(s);

(2) a summary of all behavioral interventions attempted, ranging from the most positive to the most restrictive, with the individual's response to these interventions, and reasons the interventions were ineffective in decreasing or eliminating the behavior(s);

(3) chronological psychoactive medication history, including start and stop dates of medications, dose changes to medications, and reasons for discontinuance or changes to dosages (e.g., adverse reactions, allergies, or increase in target symptoms);

(4) evidence of participation by a psychologist in the IDT meeting discussing the proposed discharge;

(5) evidence of approval of the proposed discharge by the facility's specially constituted committee;

(6) a description of the proposed living arrangement for the individual after the effective date of the discharge; and

(7) a written agreement from a representative of the proposed living arrangement to accept the individual on or after the effective date of the discharge.

(g) The department will review the documentation submitted in accordance with subsection (f) of this section and, within 14 days after receiving the documentation, provide written notice to the program provider of its approval or denial of the discharge.

(h) If a proposed discharge is approved by the department in accordance with subsection (g) of this section, a psychologist must participate in the development of the post-discharge plan described in subsection (c)(4) of this section.

(i) If the reason for a discharge is that the individual requires immediate admission to a psychiatric facility for inpatient services, a program provider other than a state school or state center must, within three days after the effective date of the discharge, notify the Office of Medicaid Administration and the individual's MRA of:

(1) the individual's admission to the psychiatric facility; and

(2) whether the program provider intends to re-admit the individual to the facility and, if not, why the individual will not be re-admitted.

(j) During a discharge, a program provider may accept payment from the individual or other person to hold the individual's residential placement in the facility if a written contract, signed and dated by the program provider and the individual or the other person, is executed prior to each discharge that specifies:

(1) the amount, not to exceed the department's rate of reimbursement for the individual's LON on the effective date of discharge, that the individual or other person agrees to pay the program provider to hold the individual's residential placement;

(2) the period of time for which the individual's residential placement in the facility will be held by the program provider;

(3) that the program provider is not obligated to hold the individual's residential placement after the period of time described in paragraph (2) of this subsection; and

(4) agreement by the program provider that the individual or other person may terminate the contract immediately upon written notice to the program provider.

Comments

Source Note: The provisions of this §9.227 adopted to be effective September 1, 2001, 26 TexReg 5384; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841

§9.228: Augmentative Communication Device System

(a) A specialized augmentative communication device system (ACD), also referred to as a speech-generating device system, is reimbursable if purchased by a program provider for a resident and all requirements of this section are met.

(b) A program provider must request and receive authorization from DADS before purchasing an ACD, referred to in this section as "prior authorization." The request for prior authorization must include:

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

(2) a signed statement from the resident's attending physician that the ACD is medically necessary for the resident to maximize his functional communication; and

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

(c) The evaluation and recommendation from the licensed speech therapist must include:

(1) a description of how the ACD will specifically meet the needs of the resident;

(2) detailed instructions for training on the use of the ACD for the resident, program provider staff, and resident's family (if applicable);

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

(4) the specific ACD being recommended.

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

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

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

(1) A program provider must fully investigate and use funding sources to pay for an ACD before submitting the request for reimbursement to DADS. If another funding source will pay for part of the cost of the ACD, the program provider may request reimbursement from DADS for the balance of the cost if the requirements in subsections (b) and (c) of this section are met. If another funding source is available, DADS reimburses the program provider no more than the balance remaining after other sources are used fully.

(2) A program provider must submit the request for reimbursement to DADS within one year after the date of purchase.

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

(g) If DADS denies a request for reimbursement because the program provider did not receive prior authorization or did not submit the necessary documentation for the ACD, the program provider is responsible for the cost of the ACD.

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

(i) Only the resident may use the ACD, and the program provider must identify the ACD as the personal property of the resident.

(1) Upon discharge from the facility, the resident must retain the ACD. If the resident dies, the ACD must be transferred to the resident's estate. If the ACD is donated or sold to the program provider by the resident or the resident's estate, the program provider must document the transaction.

(2) The program provider is responsible for repairing and maintaining the ACD while the resident resides in the facility.

Comments

Source Note: The provisions of this §9.228 adopted to be effective August 1, 2009, 34 TexReg 4741

Division 5

§9.236: Eligibility Criteria

(a) To be eligible for the ICF/MR Program, a person must:

(1) meet the LOC I or LOC VIII criteria described in §419.238 of this title (relating to Level of Care I Criteria) and §419.239 of this title (relating to Level of Care VIII Criteria);

(2) be in need of and able to benefit from the active treatment provided in the 24-hour supervised residential setting of an ICF/MR; and

(3) be eligible for Supplemental Security Income (SSI) or be determined by TDHS to be financially eligible for Medicaid.

(b) Circumstances under which a person is not in need of and able to benefit from active treatment include when the person:

(1) has been diagnosed by a licensed physician as having "brain death";

(2) does not respond in any way to the living environment;

(3) has a health condition that prevents participation in active treatment; or

(4) is generally able to function with little supervision or without a program of continuous active treatment.

Comments

Source Note: The provisions of this §9.236 adopted to be effective September 1, 2001, 26 TexReg 5384; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841

§9.237: Level of Care

(a) An LOC for a person must be requested from the department by electronically transmitting a completed MR/RC Assessment, indicating the recommended LOC, to the department. The electronically transmitted MR/RC Assessment must contain information identical to the information on the signed MR/RC Assessment described in subsection (b) of this section.

(b) Information on the MR/RC Assessment must be supported by current data obtained from standardized evaluations and formal assessments that measure physical, emotional, social, and cognitive factors. A paper copy of the person's signed MR/RC Assessment and documentation supporting the recommended LOC must be maintained in the person's record.

(c) The department will make an LOC determination in accordance with §419.238 of this title (relating to ICF/MR LOC I Criteria) and §419.239 of this title (relating to ICF/MR LOC VIII) based on the department's review of information reported on the person's MR/RC Assessment.

(d) The department will notify the requestor electronically if the LOC is authorized. The department will send written notification to the requestor and the person or LAR if the LOC is denied.

(e) An initial LOC is valid for 180 days after its effective date.

(f) The effective date of a person's initial LOC is the date requested by the MRA, which may be no earlier than 30 days prior to the date the person's MR/RC Assessment is electronically transmitted to the department.

Comments

Source Note: The provisions of this §9.237 adopted to be effective September 1, 2001, 26 TexReg 5384; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841

§9.238: Level of Care I Criteria

(a) To meet the LOC I criteria, a person must:

(1) meet the following criteria:

(A) have a full scale intelligence quotient (IQ) score of 69 or below, obtained by administering a standardized individual intelligence test; or

(B) have a full scale IQ score of 75 or below, obtained by administering a standardized individual intelligence test, and have a primary diagnosis by a licensed physician of a related condition that is included on the TDMHMR Approved Diagnostic Codes for Persons with Related Conditions (posted on the department's website at www.mhmr.state.tx.us or obtained by contacting Office of Medicaid Administration, Texas Department of Mental Health and Mental Retardation, P.O. Box 12668, Austin, Texas 78711);

(2) have an adaptive behavior level of I, II, III, or IV (i.e., mild to extreme deficits in adaptive behavior) obtained by administering a standardized assessment of adaptive behavior.

(b) If a person has a sensory or motor deficit for which a specially standardized intelligence test or a certain portion of a standardized intelligence test is appropriate, the appropriate score should be used.

(c) If a full scale IQ score cannot be obtained from a standardized intelligence test due to age, functioning level, or other severe limitations, an estimate of a person's intellectual functioning should be documented with clinical justification.

Comments

Source Note: The provisions of this §9.238 adopted to be effective September 1, 2001, 26 TexReg 5384; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841

§9.239: Icf/MR Level of Care VIII Criteria

To meet the LOC VIII criteria, a person must:

(1) have a primary diagnosis by a licensed physician of a related condition that is included on the TDMHMR Approved Diagnostic Codes for Persons with Related Conditions (posted on the department's website at www.mhmr.state.tx.us or obtained by contacting Office of Medicaid Administration, Texas Department of Mental Health and Mental Retardation, P.O. Box 12668, Austin, Texas 78711); and

(2) have an adaptive behavior level of II, III, or IV (i.e., moderate to extreme deficits in adaptive behavior) obtained by administering a standardized assessment of adaptive behavior.

Comments

Source Note: The provisions of this §9.239 adopted to be effective September 1, 2001, 26 TexReg 5384; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841

§9.240: Level of Need

(a) An LON for a person must be requested from the department by electronically transmitting a completed MR/RC Assessment, indicating the recommended LON, and submitting any supporting documentation required by §419.242 of this title (relating to Supporting Documentation for Level of Need). The electronically transmitted MR/RC Assessment must contain information identical to the information on the signed MR/RC Assessment described in subsection (c) of this section.

(b) Supporting documentation must be received by the department within seven days after the completed MR/RC Assessment is electronically transmitted to the department.

(c) A paper copy of the person's signed MR/RC Assessment and the supporting documentation must be maintained in the person's record.

(d) The department will assign an LON 1, LON 5, LON 6, LON 8, or LON 9, to a person in accordance with the criteria described in §419.241 of this title (relating to Level of Need Criteria).

(e) The department will assign an LON to a person based on the department's review of information reported on the person's MR/RC Assessment, including the ICAP service level score, and any supporting documentation required by §419.242 of this title (relating to Supporting Documentation for Level of Need).

(f) Within 21 days after receiving an MR/RC Assessment and any supporting documentation, the department will request additional documentation, electronically approve the recommended LON, or send written notification to the requestor that the recommended LON has been denied.

(g) If additional documentation is requested, the department will review any additional documentation submitted in accordance with its request and electronically approve the recommended LON or send written notification to the requestor that the recommended LON has been denied.

(h) The department may review a recommended or assigned LON at any time to determine if it is appropriate. If the department reviews a recommended or assigned LON, documentation supporting the LON must be submitted to the department in accordance with the department's request. The department may modify an LON and recoup or deny payment based on its review.

Comments

Source Note: The provisions of this §9.240 adopted to be effective September 1, 2001, 26 TexReg 5384; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841

§9.241: Level of Need Criteria

(a) The department will assign one of five LONs as follows:

(1) An intermittent LON (LON 1) will be assigned if the person's ICAP service level score equals 7, 8, or 9;

(2) A limited LON (LON 5) will be assigned if the person's ICAP service level score equals 4, 5, or 6, or an LON 1 is increased in accordance with subsection (b) or (d) of this section;

(3) An extensive LON (LON 8) will be assigned if the person's ICAP service level score equals 2 or 3, or an LON 5 is increased in accordance with subsection (b) or (d) of this section;

(4) A pervasive LON (LON 6) will be assigned if the person's ICAP service level score equals 1, or an LON 8 is increased in accordance with subsection (b) or (d) of this section; and

(5) Regardless of a person's ICAP service level score, a pervasive plus LON (LON 9) will be assigned if the person meets the criteria set forth in subsection (c) of this section.

(b) An LON 1, LON 5, or LON 8 will be increased to the next LON by the department, due to a person's dangerous behavior, if the supporting documentation described in §419.242 (1) (relating to Supporting Documentation for Level of Need) is submitted to the department proving that:

(1) the person exhibits dangerous behavior that could cause serious physical injury to the person or others;

(2) a written behavior intervention plan has been implemented for the person;

(3) more staff members are needed and available than would be needed if the person did not exhibit dangerous behavior;

(4) management of the individual's behavior requires that staff members are constantly prepared to physically prevent the dangerous behavior or intervene when the behavior occurs; and

(5) the person's MR/RC Assessment is correctly scored with a "1" in the "Behavior" section.

(c) An LON 9 will be assigned by the department, due to the person's extremely dangerous behavior, if the supporting documentation described in §419.242(2) (relating to Supporting Documentation for Level of Need) is submitted to the department proving that:

(1) the person exhibits extremely dangerous behavior that is life threatening to the person or to others such that specified staff must be at arm's length during waking hours;

(2) a written behavior intervention plan has been implemented for the person;

(3) management of the person's behavior requires a staff member to exclusively and constantly supervise the person during the person's waking hours, which must be at least 16 hours per day;

(4) the staff member assigned to supervise the person has no other duties during such assignment; and

(5) the person's MR/RC Assessment is correctly scored with a "2" in the "Behavior" section.

(d) An LON 1, LON 5, or LON 8 will be increased to the next LON by the department, due to a person's extraordinary medical needs, if the supporting documentation described in §419.242(3) (relating to Supporting Documentation for Level of Need) is submitted to the department proving that:

(1) the person's extraordinary medical needs require direct nursing treatment in excess of 180 minutes per week;

(2) the provision of nursing treatment is documented by a nurse in the person's medical record to include the amount of time spent for treatment; and

(3) the person's MR/RC Assessment is correctly scored with a "6" in the "Nursing" section.

Comments

Source Note: The provisions of this §9.241 adopted to be effective September 1, 2001, 26 TexReg 5384; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841

§9.242: Supporting Documentation for Level of Need

The following supporting documentation, at a minimum, must be submitted to the department when requesting an LON:

(1) if a request is made to increase an LON 1, LON 5, or LON 8 in accordance with §419.241(b) of this title (relating to Level of Need Criteria), due to a person's dangerous behavior:

(A) the person's IPP;

(B) the person's ICAP assessment booklet;

(C) the person's person directed plan (PDP), if available;

(D) the person's behavior intervention plan; and

(E) written descriptions (e.g. incident reports or progress notes) of specific incidents of the dangerous behavior and the staff interventions;

(2) if a request is made for an LON 9 in accordance with §419.241(c) of this title (relating to Level of Need Criteria), due to the person's extremely dangerous behavior:

(A) the person's IPP;

(B) the person's ICAP assessment booklet;

(C) the person's PDP, if available;

(D) the person's behavior intervention plan;

(E) written descriptions (e.g. incident reports or progress notes) of specific incidents of the extremely dangerous behavior and the staff interventions; and

(F) time sheets that verify the assignment of a staff member to exclusively and constantly supervise the person during the person's waking hours, which must be at least 16 hours per day;

(3) if a request is made to increase an LON 1, LON 5, or LON 8 in accordance with §419.241(d) of this title (relating to Level of Need Criteria), due to a person's extraordinary medical needs:

(A) the person's IPP;

(B) the person's ICAP assessment booklet;

(C) the person's PDP, if available; and

(D) description, frequency, and duration of each type of nursing treatment; and

(4) if a request is made to increase an individual's existing LON based on the results of an ICAP assessment:

(A) the individual's previous ICAP assessment booklet;

(B) the individual's latest ICAP reassessment;

(C) the individual's IPP;

(D) program progress notes; and

(E) the individual's PDP, if available.

Comments

Source Note: The provisions of this §9.242 adopted to be effective September 1, 2001, 26 TexReg 5384; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841

§9.243: Reconsideration of Level of Need

(a) If a program provider who has requested an LON for a person disagrees with the LON assigned by the department, the program provider may request that the department reconsider the LON.

(b) A program provider may receive reconsideration only if the program provider submitted the supporting documentation as required by §419.240(b) of this title (relating to Level of Need).

(c) To request reconsideration of an LON assigned by the department, a program provider must submit a written request for reconsideration to the department within 10 days after receiving notice that the recommended LON was denied. The program provider must include additional clinical and supporting documentation with the request.

(d) Within 21 days after receiving a request for reconsideration from a program provider, the department will electronically approve the recommended LON or send written notification to the program provider that the recommended LON has been denied.

Comments

Source Note: The provisions of this §9.243 adopted to be effective September 1, 2001, 26 TexReg 5384; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841

§9.244: Applicant Enrollment in the Icf/MR Program

(a) Except as provided in subsection (b) of this section, only an MRA may request enrollment of an applicant by DADS.

(b) A program provider may request enrollment of an applicant by DADS in accordance with subsection (k) of this section if the applicant:

(1) has received ICF/MR services from a non-state operated facility during the 180 days before the enrollment request; and

(2) is not moving from or seeking admission to a state school or state center.

(c) An MRA must request an applicant's enrollment if:

(1) the program provider selected by the applicant or LAR notifies the MRA in writing that admission to the program provider's facility has been offered to the applicant; and

(2) the applicant or LAR notifies the MRA that the applicant or LAR chooses to accept the admission offered by the program provider.

(d) If an MRA receives the notifications described in subsection (c) of this section, the MRA must comply with §5.159(c) of this title (relating to Assessment of Individual's Need for Services and Supports) including providing an explanation to the applicant or LAR of the services and supports for which the applicant may be eligible. For an applicant under 22 years of age, an MRA must also comply with the following requirements:

(1) Except as provided in paragraphs (2) and (3) of this subsection, before placement of an applicant in a facility, the MRA must inform the LAR:

(A) of the benefits of living in a family or community setting;

(B) that the placement of the applicant is considered temporary; and

(C) that an ongoing permanency planning process is required.

(2) If an MRA is notified of a request for enrollment after the applicant is admitted to the facility, the MRA must provide the information described in paragraph (1) of this subsection to the LAR not later than the 14th working day after the date the MRA is notified of the request for the enrollment, unless this time period is extended by the LAR.

(3) An MRA does not have to comply with paragraph (1) or (2) of this subsection if the applicant has been committed to a facility under Chapter 46B, Code of Criminal Procedure, or Chapter 55, Family Code.

(e) To request an applicant's enrollment, an MRA must, within 15 working days after the MRA receives both notifications described in subsection (c) of this section:

(1) initiate, monitor, and support the processes necessary to obtain a financial eligibility determination for the applicant if Medicaid financial eligibility has not been established;

(2) obtain an ICAP score for the applicant by:

(A) reviewing and endorsing an existing ICAP for the applicant; or

(B) administering the ICAP if an ICAP score for the applicant does not exist, is not available, or is not endorsed by the MRA; and

(3) request or review an LOC determination and LON for the applicant by:

(A) completing and electronically submitting an MR/RC Assessment, if the applicant does not have a current LOC determination; or

(B) reviewing the existing MR/RC Assessment for the applicant if the applicant has a current LOC determination and:

(i) if the MRA does not endorse the existing MR/RC Assessment, completing and electronically submitting a new MR/RC Assessment recommending a revised LOC or LON; or

(ii) if the MRA endorses the existing MR/RC Assessment, notifying the selected program provider in writing that no changes to the current LOC or LON are recommended.

(f) Upon notification of a request for enrollment of an applicant under 22 years of age, an MRA must take or ensure that the following actions are taken to conduct permanency planning:

(1) The MRA must convene a permanency planning meeting with the LAR and, if possible, the applicant before admission or, if notified of a request for enrollment after the applicant's admission, not later than the 14th working day after the date the MRA is notified of the request.

(2) Before the permanency planning meeting, the MRA staff must review the applicant's records and, if possible, meet the applicant.

(3) During the permanency planning meeting, the meeting participants must discuss and choose one of the following goals:

(A) for an applicant under 18 years of age:

(i) to live in the applicant's family home where the natural supports and strengths of the applicant's family are supplemented, as needed, by activities and supports provided or facilitated by the MRA or program provider; or

(ii) to live in a family-based alternative in which a family other than the applicant's family:

(I) has received specialized training in the provision of support and in-home care for an individual under 18 years of age with mental retardation;

(II) will provide a consistent and nurturing environment in a family home that supports a continued relationship with the applicant's family to the extent possible; and

(III) if necessary, will provide an enduring, positive relationship with a specific adult who will be an advocate for the applicant; or

(B) for an applicant 18-22 years of age, to live in a setting chosen by the applicant or LAR in which the applicant's natural supports and strengths are supplemented by activities and supports provided or facilitated by the MRA or program provider, and to achieve a consistent and nurturing environment in the least restrictive setting, as defined by the applicant and LAR.

(4) To accomplish the goal chosen in accordance with paragraph (3) of this subsection, the meeting participants must discuss and identify:

(A) the problems or issues that led the applicant or LAR to request admission to a facility;

(B) the applicant's daily support needs;

(C) for an applicant under 18 years of age:

(i) barriers to having the applicant reside in the family home;

(ii) supports that would be necessary for the applicant to remain in the family home; and

(iii) actions that must be taken to overcome the barriers and provide the necessary supports;

(D) for an applicant 18-22 years of age, the barriers to the applicant moving to a consistent and nurturing environment as defined by the applicant and LAR;

(E) the importance for the applicant to live in a long-term nurturing relationship with a family;

(F) alternatives to the applicant living in an institutional setting;

(G) the applicant's and LAR's need for information and preferences regarding those alternatives;

(H) how, after admission to the facility, to facilitate regular contact between the applicant and the applicant's family, and, if desired by the applicant and family, between the applicant and advocates and friends in the community to continue supportive and nurturing relationships;

(I) natural supports and family strengths that will assist in accomplishing the identified permanency planning goal;

(J) activities and supports that can be provided by the family, MRA, or program provider to achieve the permanency planning goal;

(K) assistance needed by the applicant's family:

(i) in maintaining a nurturing relationship with the applicant; and

(ii) preparing the family for the applicant's eventual return to the family home or move to a family-based alternative; and

(L) action steps, both immediate and long term, for achieving the permanency plan goal.

(5) The MRA must make reasonable accommodations to promote the participation of the LAR in a permanency planning meeting, including:

(A) conducting a meeting in person or by telephone, as mutually agreed upon by the MRA and LAR;

(B) conducting a meeting at a time and, if the meeting is in person, at a location that is mutually agreed upon by the MRA and LAR;

(C) if the LAR has a disability, providing reasonable accommodations in accordance with the Americans with Disabilities Act, including providing an accessible meeting location or a sign language interpreter, if appropriate; and

(D) providing a language interpreter, if appropriate.

(6) The MRA must develop a permanency plan using, as appropriate:

(A) the Permanency Planning Instrument for Children Under 18 Years of Age; or

(B) the Permanency Planning Instrument for Individuals 18-22 Years of Age.

(7) The MRA must:

(A) complete the Permanency Planning Review Screen in CARE before an applicant is admitted to a facility unless the MRA is not given prior notice of the admission;

(B) keep a copy of the Permanency Planning Review Approval Status View Screen from CARE in the applicant's record; and

(C) provide a copy of the permanency plan to the program provider, the applicant, and the LAR.

(g) If an applicant is under 22 years of age, the MRA must inform the applicant and LAR that they may request a volunteer advocate to assist in permanency planning. The applicant or LAR may:

(1) select a person who is not employed by or under contract with the MRA or a program provider; or

(2) request the MRA to designate a volunteer advocate.

(h) If an applicant or LAR requests that the MRA designate a volunteer advocate or the MRA cannot locate the LAR, the MRA must attempt to designate a volunteer advocate to assist in permanency planning who is, in order of preference:

(1) an adult relative who is actively involved with the applicant;

(2) a person who:

(A) is part of the applicant's natural support network; and

(B) is not employed by or under contract with the MRA or a program provider; or

(3) a person or a child advocacy organization representative who:

(A) is knowledgeable about community services and supports;

(B) is familiar with the permanency planning philosophy and processes; and

(C) is not employed by or under contract with the MRA or a program provider.

(i) If the MRA is unable to locate a volunteer advocate locally, the MRA must request assistance from a statewide advocacy organization in identifying an available volunteer advocate who meets the requirements described in subsection (h) of this section. If the statewide advocacy organization is unable to assist the MRA in identifying a volunteer advocate, the MRA must document all efforts to designate a volunteer advocate in accordance with subsection (h) of this section.

(j) If DADS notifies an MRA that it has authorized an applicant's LOC, the MRA must immediately notify the applicant or LAR of such authorization and provide the selected program provider with copies of all enrollment documentation and associated supporting documentation including relevant assessment results and recommendations and the applicant's ICAP booklet and, if available, the applicant's service plan.

(k) To request an applicant's enrollment as permitted by subsection (b) of this section, a program provider must ensure that the applicant has a current LOC.

(1) If an applicant does not have a current LOC, the program provider must complete and electronically submit an MR/RC Assessment to DADS.

(2) If the program provider submits an MR/RC Assessment, DADS notifies the program provider electronically if the LOC is authorized or sends written notification to the program provider and the applicant or LAR if the LOC is denied.

(l) An applicant's enrollment is complete if:

(1) DADS has authorized an LOC for the applicant;

(2) the Social Security Administration has determined that the applicant is eligible for SSI or the Health and Human Services Commission determines the applicant is financially eligible for Medicaid;

(3) the program provider has electronically submitted a completed Client Movement Form to DADS; and

(4) admission to the facility has been approved by the DADS commissioner or designee for the applicant who is under 22 years of age, based on information submitted as described in subsection (f) of this section.

(m) A program provider must maintain a paper copy of the completed MR/RC Assessment with all the necessary signatures and documentation supporting the recommended LOC and LON.

Comments

Source Note: The provisions of this §9.244 adopted to be effective September 1, 2001, 26 TexReg 5384; amended to be effective March 31, 2002, 27 TexReg 2475; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841; amended to be effective September 1, 2006, 31 TexReg 6795

§9.245: Renewal of Level of Care

(a) To avoid interruption in payment from the department, a program provider must request to renew an individual's existing LOC prior to its expiration date.

(b) To request to renew an individual's existing LOC, a program provider must follow the procedures for requesting an LOC described in §419.237 of this title (relating to Level of Care).

(c) The department will make an LOC determination and notify the program provider of its determination in accordance with §419.237 of this title (relating to Level of Care).

(d) The effective date of a renewed LOC is:

(1) the date the MR/RC was electronically transmitted to the department, if a different date is not requested; or

(2) a requested effective date within 45 days after the MR/RC was electronically transmitted to the department.

(e) A renewed LOC is valid for 364 days after its effective date.

Comments

Source Note: The provisions of this §9.245 adopted to be effective September 1, 2001, 26 TexReg 5384; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841

§9.246: Renewal and Revision of Level of Need

(a) A program provider must request to renew an individual's existing LON when renewing an existing LOC in accordance with §419.245(b) of this title (relating to Renewal of Level of Care).

(b) A program provider must request to revise an individual's existing LON if:

(1) the individual's adaptive functioning or behavioral or medical condition changes such that the individual's current LON is no longer accurate;

(2) the results of an ICAP assessment indicate that the individual's current LON is no longer accurate; or

(3) the information submitted for the individual's current LON resulted in an inaccurate LON.

(c) To request to renew or revise an individual's existing LON, a program provider must follow the procedures for requesting an LON described in §419.240 of this title (relating to Level of Need).

(d) The department will assign an LON and notify the program provider of the assignment in accordance with §419.240 of this title (relating to Level of Need).

Comments

Source Note: The provisions of this §9.246 adopted to be effective September 1, 2001, 26 TexReg 5384; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841

§9.247: Re-administration of the Icap

(a) A program provider must re-administer the ICAP to an individual if:

(1) three years have elapsed since the ICAP was last administered to the individual;

(2) changes in the individual's functional skills or behavior occur that are not expected to be of a short duration or cyclical in nature; or

(3) the individual's skills and behavior are inconsistent with the individual's LON.

(b) If the results from the ICAP indicate that the individual's LON is no longer accurate, a program provider must request a revision to the LON in accordance with §419.246(b) of this title (relating to Renewal and Revision of Level of Need).

Comments

Source Note: The provisions of this §9.247 adopted to be effective September 1, 2001, 26 TexReg 5384; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841

§9.248: Lapsed Level of Care

(a) The department will not pay a program provider for ICF/MR Program services provided during a period of time in which the individual's LOC lapsed unless the program provider requests and is granted a reinstatement of the LOC in accordance with this section.

(b) To request reinstatement of an LOC, a program provider must electronically transmit to the department an MR/RC Assessment indicating:

(1) a code "E" in the "Purpose" section; and

(2) the beginning and ending dates of the period of time for which the individual's LOC lapsed.

(c) The department will not grant a request for reinstatement of an LOC:

(1) if the individual does not have a current LOC;

(2) to establish program eligibility;

(3) to renew an LOC;

(4) to obtain an LOC for a period of time for which an LOC has been denied;

(5) to revise an LON; or

(6) for a period of time during which the individual is not eligible for Medicaid.

(d) If the department grants a reinstatement, the reinstatement will be for a period of not more than 180 days prior to the date of electronic transmission of the MR/RC Assessment described in subsection (b) of this section.

(e) A program provider must maintain a paper copy of the completed MR/RC Assessment with all necessary signatures in the individual's record. The signed MR/RC Assessment must contain information identical to the information on the electronically transmitted MR/RC Assessment.

Comments

Source Note: The provisions of this §9.248 adopted to be effective September 1, 2001, 26 TexReg 5384; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841

§9.249: Fair Hearing

Any individual whose request for eligibility for the ICF/MR Program is denied or is not acted upon with reasonable promptness, or whose ICF/MR Program services have been terminated, suspended or reduced by the department is entitled to a fair hearing in accordance with Chapter 419, Subchapter G of this title (relating to Medicaid Fair Hearings).

Comments

Source Note: The provisions of this §9.249 adopted to be effective September 1, 2001, 26 TexReg 5384; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841

§9.250: Permanency Planning Reviews

An MRA must, within six months after the initial permanency planning meeting and every six months thereafter until an individual either turns 22 years of age or leaves the facility to live in a family setting:

(1) provide written notice to the LAR of a meeting to conduct a review of the individual's permanency plan no later than 21 days before the meeting date and include a request for a response from the LAR;

(2) convene a meeting to review the individual's permanency plan in accordance with §9.244(f)(2) - (5) of this subchapter (relating to Applicant Enrollment in the ICF/MR Program), with an emphasis on changes or additional information gathered since the last permanency plan was developed;

(3) develop a permanency plan in accordance with §9.244(f)(6) of this subchapter;

(4) perform actions regarding a volunteer advocate as described in §9.244(g) - (i) of this subchapter;

(5) complete the Permanency Planning Review Screen in CARE within 10 days after the meeting;

(6) ensure that approval for the individual to continue to reside in the facility is obtained every six months from the DADS commissioner and the Health and Human Services Commission executive commissioner;

(7) keep a copy of the Permanency Planning Review Approval Status View Screen from CARE in the individual's record; and

(8) provide a copy of the permanency plan to the program provider, the individual, and the LAR.

Comments

Source Note: The provisions of this §9.250 adopted to be effective September 1, 2006, 31 TexReg 6795

Division 6

§9.251: Protecting Individuals' Personal Funds

(a) A program provider must implement this division according to the generally accepted accounting principles of the American Institute of Certified Public Accountants.

(b) A program provider must develop and implement written policies and procedures regarding personal funds that protect the financial interest of individuals and, at a minimum, require the program provider:

(1) to instruct individuals in handling personal funds consistent with the individuals' abilities and understanding; and

(2) to allow individuals to hold and manage their personal funds to the extent of their abilities.

(c) A program provider must reimburse individuals for personal funds lost or stolen while the funds are under the program provider's control.

Comments

Source Note: The provisions of this §9.251 adopted to be effective January 1, 2001, 25 TexReg 12790; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841

§9.252: Notice Regarding Personal Funds

At the time of admission to a facility, and if changes to services or charges occur, a program provider must provide each individual or LAR with written notification containing the following information:

(1) a written explanation of §419.253(d) and (e) of this title (relating to Determining Management of Personal Funds), which describe who may manage personal funds;

(2) a list of items and services included in the program provider's ICF/MR Program reimbursement rate for which the individual will not be charged;

(3) a list of items and services for which the individual may be charged;

(4) a statement that the individual or LAR may have the Social Security Administration appoint a representative payee to receive the individual's federal benefits in accordance with 20 CFR Part 416, Subpart F;

(5) a statement that, if the program provider manages the individual's personal funds, the program provider will make available the individual's personal funds record, as described in §419.256(h) of this title (relating to Program-Provider Managed Personal Funds), upon the request of the individual or LAR within 72 hours after receiving the request; and

(6) a statement that at the request of the individual or LAR, or if the individual is discharged or transferred from the facility, the program provider will disburse the individual's personal funds to the individual or LAR within 30 days after the request or discharge, if the program provider manages the individual's personal funds.

Comments

Source Note: The provisions of this §9.252 adopted to be effective January 1, 2001, 25 TexReg 12790; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841

§9.253: Determining Management of Personal Funds

(a) Within 30 days after an individual is admitted to a facility, the IDT must determine if the individual has the ability to:

(1) manage his or her personal funds; and

(2) decide who manages his or her personal funds.

(b) The determination must be based on an assessment of the individual's understanding of financial management, including:

(1) mathematical concepts;

(2) budgeting personal funds;

(3) monetary denominations; and

(4) financial obligations.

(c) The results of the assessment and the IDT's determination must be documented, signed by the IDT, and made a part of the individual's IPP.

(d) If an individual does not have an LAR and is determined to have the ability to decide who manages his or her personal funds or if an individual has an LAR, a program provider must allow the individual or LAR to choose one of the following to manage his or her personal funds and document such choice in the individual's IPP:

(1) the individual, if the individual is determined to have the ability to manage his or her personal funds;

(2) the individual's LAR;

(3) the program provider; or

(4) another person identified by the individual or LAR who has agreed in writing to manage the individual's personal funds.

(e) If an individual is determined not to have the ability to decide who manages his or her personal funds and the individual has no LAR, a program provider must manage the individual's personal funds in accordance with this subchapter.

(f) A program provider must reassess an individual's understanding of financial management at least annually and if the program provider has reason to believe that the individual's ability has changed.

Comments

Source Note: The provisions of this §9.253 adopted to be effective January 1, 2001, 25 TexReg 12790; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841

§9.254: Items and Services Provided by the Program Provider

A program provider must not charge an individual or require an individual to expend personal funds for items and services that are the program provider's responsibility to provide, except as authorized by §9.255(a)(1) of this title (relating to Items and Services Purchased with Personal Funds), because they are included in the ICF/MR Program reimbursement rate or are covered by other Medicaid programs. These items and services include:

(1) medical services and therapies, e.g., physical exams, physical therapy, occupational therapy, and nutritional, speech, audiological, psychological, social, and medical evaluations;

(2) prescribed and over-the-counter medication:

(A) for an individual who is not eligible for Medicare Part D benefits; or

(B) for an individual who is eligible for Medicare Part D benefits if the medication is prescribed and is in a category that is not covered by Medicare Part D;

(3) medical equipment and supplies, e.g., nasogastric tubes, feeding pumps, catheters, sheepskins, and egg crate pads;

(4) laboratory services;

(5) eye exams and eyeglasses, except:

(A) the difference between the Medicaid payment and the actual cost of the eyeglasses as authorized by §9.255(a)(2) of this title; or

(B) as authorized by §9.255(a)(6) of this title;

(6) non-cosmetic dental services and items, e.g., intra- and extra-oral examinations, prescribed dental treatments and follow-up visits, dentures, braces, crowns, toothbrushes, toothpaste, mouthwash, dental floss, and disclosing solution;

(7) specialized equipment and adaptive devices that are medically necessary or are necessary to meet the objectives in the individual's IPP, e.g., hearing aids, hearing aid batteries, electric razor, shoe closures, and shoe insoles;

(8) training and habilitation services, e.g., vocational training, congregate training, and day activity services;

(9) behavioral reinforcers used in behavior modification programs, e.g., candy, soft drinks, cereal, coffee, toys, and magazines;

(10) meals, snacks, and special diets, as listed on the program provider's menu, whether provided at the facility or elsewhere;

(11) non-cosmetic personal hygiene items, e.g., shampoo, conditioner, soap, deodorant, anti-perspirant, body lotion, insect repellant, suncreen, shaving supplies, comb, hair brush, facial tissues, toilet tissue, sanitary napkins, tampons, and diapers;

(12) shampooing, haircutting, basic hairstyling, and shaving, including mustache and beard trimming;

(13) laundering personal clothing;

(14) facility furnishings and housewares, e.g., bedroom furniture, kitchenware, bath towels, dish towels, and bed linens;

(15) repairing and maintaining the facility's physical plant, including training and day activity areas;

(16) expenses that are associated with activities that are part of the program provider's recreational program e.g., meals, lodging, registrations, and tickets;

(17) transportation costs to and from:

(A) an activity included in an individual's IPP, including health care services, congregate training, day activity services and supported employment, except for competitive employment; or

(B) an activity that is part of the program provider's recreational program;

(18) fees charged by financial institutions, including service fees and check printing charges, if an individual's personal funds are managed in a pooled account or if the program provider chooses to manage those funds in a separate account;

(19) managing an individual's personal funds; and

(20) a charge incurred if the program provider mismanages an individual's personal funds.

Comments

Source Note: The provisions of this §9.254 adopted to be effective January 1, 2001, 25 TexReg 12790; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841; amended to be effective January 1, 2006, 30 TexReg 7890

§9.255: Items and Services Purchased with Personal Funds

(a) A program provider may charge an individual or allow an individual to expend personal funds for the following items and services:

(1) an item or service that the program provider is responsible for providing, if the individual requests a specific type or brand of item or service that the program provider does not provide, and the program provider documents in the individual's record:

(A) the individual's written, signed request for a specific type or brand and the reason a specific type or brand has been requested or if the individual is determined not to have the ability to make such a request, the IDT's approval for a specific type or brand;

(B) the type or brand that is provided at the program provider's expense; and

(C) the reason the program provider does not provide the type or brand requested;

(2) the difference between the Medicaid payment and the actual cost of the eyeglasses, if the individual chooses a style or feature not paid for by Medicaid;

(3) clothing;

(4) cosmetic dental procedures;

(5) transportation costs, other than those described in §419.254(17) of this title (relating to Items and Services Provided by the Program Provider):

(A) if reimbursement to a third party for private transportation does not exceed the current state mileage reimbursement rate; and

(B) if adequate documentation is provided by a third party to the program provider to support the expenditure;

(6) repair or replacement of personal property that is damaged, lost, or stolen by the individual, if the expenditure is approved by the committee;

(7) snacks and meals, if the individual chooses items not listed on the program provider's menu;

(8) the individual's budgeted amount;

(9) activities that are not part of the program provider's recreational program and are independently chosen by the individual;

(10) dry cleaning;

(11) hair setting, permanent waves, hair color treatments, and beauty supplies, such as hair rollers and hair spray;

(12) cosmetics and perfume;

(13) cosmetic manicures, pedicures, and facials;

(14) charges to hold the individual's residential placement in the facility as described in §419.227(j) of this title (relating to Discharge From a Facility)

(15) school supplies, school fees, and other educational expenses;

(16) fees charged by a financial institution, if the individual manages his or her personal funds or the individual requests that the program provider manage his or her personal funds in a separate account; and

(17) applied income.

(b) Items purchased with an individual's personal funds must not be available for general use by program provider staff or other individuals.

Comments

Source Note: The provisions of this §9.255 adopted to be effective January 1, 2001, 25 TexReg 12790; amended to be effective September 1, 2001, 26 TexReg 5384; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841

§9.256: Program Provider-Managed Personal Funds

(a) Accounting for personal funds. If a program provider manages personal funds, the program provider must comply with this section and ensure that:

(1) a complete accounting of personal funds entrusted to the program provider is maintained;

(2) personal funds are not commingled with program provider funds or the funds of any person other than another individual for whom the program provider manages personal funds; and

(3) personal funds are only expended for the individual's use and benefit and in a manner and for purposes determined to be in the individual's best interest.

(b) Account Requirements. A program provider must manage personal funds in a trust fund account.

(1) The program provider may manage personal funds in a pooled account or a separate account. If the program provider chooses a pooled account, an individual may request and receive a separate account. The program provider may also maintain some personal funds in a petty cash fund.

(2) Trust fund accounts must be insured under federal or state law.

(3) The program provider must retain all statements from financial institutions regarding trust fund accounts.

(4) The program provider must reconcile such statement with the account ledger as described in subsections (c)(1)(A) and (c)(2)(A) of this section and personal ledger as described in subsection (h)(1)(F) of this section within 30 days after receiving such statement.

(c) Types of Accounts.

(1) Pooled accounts. If a program provider manages personal funds in a pooled account, the program provider must:

(A) maintain an account ledger that separately identifies each financial transaction, including:

(i) the name of the individual for whom the transaction was made;

(ii) the date and amount of the transaction, including interest; and

(iii) the balance after the transaction;

(B) title the account "Trustee (Program provider's Name), Individuals' Trust Fund Account;" and

(C) if the personal funds of Medicaid and private-pay individuals are pooled, obtain a signed, dated statement from private pay individuals allowing the program provider to release financial information to the department, TDHS, Texas Health and Human Services Commission, Texas Attorney General's Medicaid Fraud Control Unit, and US Department of Health and Human Services.

(2) Separate Accounts. If a program provider manages personal funds in a separate account, the program provider must:

(A) maintain an account ledger that identifies each financial transaction, including:

(i) the date and amount of the transaction, including interest; and

(ii) the balance after the transaction; and

(B) title the account "Trustee (Program Provider's Name), (Individual's Name) Trust Fund Account.

(d) Petty Cash Fund. If a program provider maintains some personal funds in a petty cash fund, the program provider must:

(1) set a limit on the amount maintained in the petty cash fund;

(2) set a limit on the amount of a single expenditure from the petty cash fund;

(3) maintain a petty cash fund ledger that includes:

(A) the date and amount of each transaction;

(B) the name of the individual for whom each transaction was made; and

(C) the balance after each transaction.

(e) Interest. If personal funds accrue interest, a program provider must prorate and distribute the interest earned to each participating individual.

(f) Depositing personal funds. A program provider must deposit in a trust fund account all funds that it receives on behalf of the individual. If the deposit slip documents deposits for more than one individual, the program provider must indicate on the deposit slip the amount allocated to each individual.

(g) Access to personal funds.

(1) An individual's IDT must, based on the individual's assessment described in §419.263 of this title (relating to Determining Management of Personal Funds), determine:

(A) if there is a need for a budgeted amount and, if so, set the amount; and

(B) if there is a need to restrict the individual's use of personal funds and, if so, make a recommendation to the specially constituted committee.

(2) If the individual's IDT makes a recommendation to the specially constituted committee to restrict an individual's use of to personal funds, the specially constituted committee's decision is documented, signed by the specially constituted committee members, and made a part of the individual's IPP.

(h) Personal funds record.

(1) A program provider must maintain a personal funds record for each individual that includes:

(A) the name of the individual;

(B) the name of the individual's LAR and representative payee, as applicable;

(C) the date of the individual's admission to the facility;

(D) the individual's budgeted amount;

(E) the account number and location of all accounts in which the individual's personal funds are managed;

(F) a personal ledger that includes the date and amount of each transaction and the balance after each transaction; and

(G) any contribution acknowledgment as described in §419.261 of this title (relating to Contributions).

(2) The personal ledger reconciled in accordance with subsection (b)(4) of this section must not be less than zero. If reconciled balance is less than zero, the program provider must deposit in and credit to the individual's trust fund account the amount that increases such balance to zero.

(3) At least quarterly, and within 72 hours after receiving a request from the individual or LAR, the program provider must provide to the individual or LAR a copy of the individual's personal ledger.

(i) Documenting expenditures and deposits.

(1) Expenditures.

(A) Except as provided in subparagraph (C) of this paragraph, a program provider must retain a sales receipt for each expenditure.

(i) If a sales receipt documents an expenditure for more than one individual, the program provider must indicate on the sales receipt the amount allocated to each individual.

(ii) If a sales receipt does not include the specific item or service purchased or the name of the seller, the program provider must attach such documentation.

(B) The program provider must explain each expenditure to the individual and request that the individual sign the receipt. If the program provider determines that the individual does not understand the explanation, the individual does not sign the receipt, or the individual's signature is illegible, a witness to the expenditure must sign the receipt. The witness must not be responsible for managing personal funds or responsible for supervising persons performing such duties.

(C) A sales receipt is not required for an expenditure:

(i) if the program provider makes a purchase on behalf of an individual from a vending machine;

(ii) if an expenditure is within the individual's budgeted amount and the program provider obtains an acknowledgment signed by the individual indicating that the funds were received;

(iii) if the program provider releases funds in response to a written request in accordance with §419.257 of this title (relating to Requests for Personal Funds from Trust Fund Accounts); or

(iv) if the program provider obtains written approval for alternative documentation from the department's Office of Medicaid Administration before the expenditure is made.

(2) Deposits. Except for deposits made electronically, a program provider must retain a deposit slip issued by the financial institution for each deposit.

Comments

Source Note: The provisions of this §9.256 adopted to be effective January 1, 2001, 25 TexReg 12790; amended to be effective September 1, 2001, 26 TexReg 5384; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841

§9.257: Requests for Personal Funds from Trust Fund Accounts

If a program provider receives a request from an individual or other person except program provider staff to expend an individual's personal funds without obtaining a receipt and the individual's IDT determines that the expenditure is in the best interest of the individual, the program provider may release such funds to the requestor.

(1) The request must be written, signed by the requestor, and specify the amount and purpose of the expenditure.

(2) A check is not considered a written request for personal funds, even if it is written and signed by the individual.

Comments

Source Note: The provisions of this §9.257 adopted to be effective January 1, 2001, 25 TexReg 12790; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841

§9.258: Closing Trust Fund Accounts

(a) Ownership change. Within 30 days after the effective date of a change in facility ownership, the previous program provider must:

(1) reconcile each statement issued by a financial institution with the account ledger and the personal ledger;

(2) provide the new program provider with a list of all individuals whose personal funds were managed by the previous program provider and their trust fund account balances and personal ledger balance as of the effective date of the transfer;

(3) transfer to the new program provider all personal funds managed by the previous program provider;

(4) retain a receipt from the new program provider indicating the amount of the transfer; and

(5) submit to the department any unidentified personal funds.

(b) Written notice. If the individual or LAR provides written notice that another person has been chosen to manage the individual's personal funds, a program provider must, within 30 days after receiving the notice:

(1) reconcile the individual's statement issued by the financial institution with the account ledger and the personal funds ledger;

(2) transfer all of the individual's personal funds to the person chosen;

(3) retain a receipt from the person indicating the amount of the transfer; and

(4) provide to the person a copy of the individual's current personal funds record.

(c) Discharge. If the individual is discharged from the facility, a program provider must, within 30 days after the discharge:

(1) reconcile the individual's statement issued by a financial institution with the account ledger and personal funds ledger;

(2) transfer all personal funds managed by the program provider:

(A) to the admitting facility, if the individual is discharged to another facility; or

(B) to the individual or LAR, if the individual is not discharged to another facility;

(3) retain a receipt from the admitting facility, individual, or LAR indicating the amount of the transfer; and

(4) provide to the admitting facility, individual, or LAR the individual's current personal funds record.

(d) Unclaimed personal funds. Within 180 days after identifying any unclaimed personal funds, a program provider must make a good faith effort to locate the individual to whom the funds belong or LAR. If the individual or LAR:

(1) is located, the program provider must transfer the funds to the individual or LAR; or

(2) is not located, the program provider must send to TDMHMR, Attn: Cashier, P.O. Box 12668, Austin, Texas 78691:

(A) a statement that the funds are unclaimed;

(B) the program provider's name, address, and vendor identification number;

(C) the individual's name, social security number, date of birth, and last known address;

(D) the LAR's name and address;

(E) a check payable to TDMHMR for the amount of the unclaimed personal funds; and

(F) documentation of the program provider's efforts to locate the individual or LAR.

Comments

Source Note: The provisions of this §9.258 adopted to be effective January 1, 2001, 25 TexReg 12790; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841

§9.259: Refunds

A program provider must refund any private payment it received for services provided during a period covered by Medicaid, including retroactive coverage, within 30 days after accepting the Medicaid payment.

Comments

Source Note: The provisions of this §9.259 adopted to be effective January 1, 2001, 25 TexReg 12790; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841

§9.260: Applied Income

(a) A program provider may only collect applied income in accordance with the procedures authorized by TDHS.

(b) If an individual's applied income has not been determined or the individual's earned or unearned income changes, a program provider must report such information to the TDHS Medicaid eligibility worker.

(c) A program provider must maintain an applied income ledger for each individual that includes the amount of:

(1) applied income owed by the individual;

(2) applied income paid by the individual;

(3) the difference between the applied income owed and the applied income paid by the individual; and

(4) charges paid by the individual to hold the individual's residential placement in the facility as described in §419.227(j) of this title (relating to Discharge From a Facility)

(d) Within 72 hours after receiving a request from the individual or LAR, a program provider must provide to the individual or LAR a copy of the individual's applied income ledger.

Comments

Source Note: The provisions of this §9.260 adopted to be effective January 1, 2001, 25 TexReg 12790; amended to be effective September 1, 2001, 26 TexReg 5384; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841

§9.261: Contributions

If the individual or LAR makes a contribution to a program provider using personal funds, the program provider and the contributor must sign and date an acknowledgement that the program provider's services are not predicated on a contribution and the contribution is voluntary. The acknowledgement must be made a part of the individual's personal funds record.

Comments

Source Note: The provisions of this §9.261 adopted to be effective January 1, 2001, 25 TexReg 12790; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841

Division 7

§9.266: Department Review of State Survey Agency Findings

(a) The department may impose a directed plan of correction (DPoC) on one or more of a program provider's facilities, a vendor hold on payments due under one or more of a program provider's agreements, or both if:

(1) the program provider is determined by the state survey agency to not meet one or more of the federal ICF/MR standards of participation (SoPs) or conditions of participation (CoPs) and the sanction team determines that the program provider's failure to meet such SoPs or CoPs resulted in or may result in serious injury to or death of an individual residing in the program provider's facility;

(2) the program provider is determined by the state survey agency to not meet one or more of the SoPs and the sanction team determines that the program provider's failure to meet such SoPs indicates a pervasive lack of active treatment;

(3) the program provider is determined by the state survey agency to not meet one of more of the SoPs or CoPs or to not be compliant with one or more state rules applicable to the ICF/MR program and the sanction team determines, based on its review of previous state survey agency findings related to the program provider, that the program provider's failure to meet the SoPs or CoPs or non-compliance with state rules indicates:

(A) a pattern of error in a particular discipline, such as nursing or psychology; or

(B) deficient program provider practices or procedures, such as inadequate staffing or insufficient staff training; or

(4) it is determined:

(A) by the state survey agency during a follow-up certification review that the program provider failed to correct previous findings of the survey and did not meet one or more additional SoPs, CoPs, or state rules; and

(B) by the sanction team that the program provider's continued failure to meet the SoPs, CoPs, or state rules indicates significant deficient practices that resulted in or may result in serious injury to or death of an individual residing in the program provider's facility.

(b) When making a determination in accordance with subsection (a) of this section, the sanction team will review the state survey agency's reports documenting the program provider's failure to meet the SoPs, CoPs, or state rules, which may include a description of:

(1) the situation or occurrence that led to the deficiency;

(2) the program provider's response to the situation or occurrence; and

(3) the program provider's practices at the time of the situation or occurrence.

(c) The department will impose a DPoC or vendor hold in accordance with subsection (a) of this section only on a facility that has been determined by the state survey agency and the sanction team to meet the criteria described in subsection (a)(1), (2), (3), or (4) of this section.

Comments

Source Note: The provisions of this §9.266 adopted to be effective January 1, 2001, 25 TexReg 12790; amended to be effective March 31, 2002, 27 TexReg 2475; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841

§9.267: Directed Plan of Correction and Vendor Hold Based on State Survey Agency Findings

(a) The department will send written notice to the program provider of its intent to impose a DPoC, a vendor hold, or both in accordance with §419.266 of this title (relating to Department Review of State Survey Agency Findings).

(b) Within 10 days after receipt of a notice of intent to impose a DPoC sent in accordance with subsection (a) of this section, a program provider may submit written recommendations to the department regarding the content of the DPoC.

(c) The department will send the final DPoC to the program provider within 30 days after the date of the notice sent in accordance with subsection (a) of this section.

(d) The department will monitor a program provider to determine if the program provider has implemented or completed the DPoC. Such monitoring may include reviews of documentation and on-site facility visits.

(e) If a facility is the subject of a DPoC and the facility fails to implement the DPoC, the department may impose a vendor hold on payments due under the provider agreement for that facility.

(f) The department will release a vendor hold imposed in accordance with subsection (e) of this section if the department determines that the program provider has implemented the DPoC.

(g) The department will release a vendor hold imposed in accordance with §419.266 of this title if the state survey agency determines that the program provider meets the SoPs, CoPs, or state rules that caused the vendor hold. Prior to such a determination, the department may release such a vendor hold if the state survey agency determines that circumstances of immediate jeopardy identified by the state survey agency have been removed.

Comments

Source Note: The provisions of this §9.267 adopted to be effective January 1, 2001, 25 TexReg 12790; amended to be effective March 31, 2002, 27 TexReg 2475; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841

§9.268: Termination of Provider Agreement

(a) The department may terminate a provider agreement:

(1) for reasons set forth in federal or state laws, rules or regulations, including this subchapter and 1 TAC Chapter 355;

(2) if the program provider fails to comply with the terms of the provider agreement, including failure of the program provider's facility to maintain certification as an ICF/MR;

(3) if federal or state laws, rules or regulations are enacted, amended, repealed or judicially interpreted so as to render the fulfillment of the provider agreement by either the program provider or the department unfeasible or impossible, and the department and program provider cannot agree upon amendments to the provider agreement necessary to comply with such changes to laws, rules or regulation;

(4) if a certification made by the program provider in the provider agreement is false or becomes inaccurate.

(5) if the department determines that a program provider has failed to implement a DPoC in accordance with §419.267 (relating to Directed Plan of Correction and Vendor Hold Based On State Survey Agency Findings); or

(6) if, during an 18-month period, three vendor holds are imposed on payments due under that provider agreement in accordance with §419.267 (relating to Directed Plan of Correction and Vendor Hold Based On State Survey Agency Findings).

(A) A vendor hold may be used to terminate a provider agreement in accordance with this paragraph regardless of whether there was an actual interruption of payment to the program provider.

(B) A vendor hold may be used no more than once to terminate a provider agreement in accordance with this paragraph.

(b) If the department proposes to terminate a provider agreement, the department may place a vendor hold on payments due to the program provider under the provider agreement until:

(1) an audit of the program provider's financial records, conducted in accordance with §419.269 of this title (relating to Audits) is completed;

(2) a review of the program provider's fiscal accountability cost report, conducted in accordance with 1 TAC §355.452 (relating to Cost Reporting Procedures) and 1 TAC §355.457 (relating to Fiscal Accountability) is completed; and

(3) any amounts owed to the department as a result of the audit and review are resolved.

(c) If a provider agreement is terminated by the department, the department will not enter into a new provider agreement with the program provider until at least two days have elapsed from the effective date of the termination.

(d) The department may enter into a new provider agreement with a program provider that has had its provider agreement terminated if:

(1) within 30 days after termination, the program provider requests a new provider agreement; and

(2) within 90 days after termination, the department or the state survey agency, as appropriate, determines that all deficiencies or actions that led to termination of the provider agreement have been corrected and the program provider is otherwise qualified to enter into a provider agreement.

(e) In determining whether to enter into a new provider agreement in accordance with subsection (c) of this section, the department will consider:

(1) the nature, severity, and pervasiveness of the deficiencies or actions that led to termination of the provider agreement; and

(2) the facility's or the program provider's history of compliance with ICF/MR Program requirements.

(f) The term and effective date of a new provider agreement entered into in accordance with subsection (c) of this section will be determined by the department.

(g) If the department determines not to enter into a new provider agreement:

(1) an MRA must assist the department in relocating individuals who choose to move from the facility; and

(2) the program provider must assist the department or MRA in relocating individuals who choose to move from the facility.

Comments

Source Note: The provisions of this §9.268 adopted to be effective January 1, 2001, 25 TexReg 12790; amended to be effective March 31, 2002, 27 TexReg 2475; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841

§9.269: Audits

(a) The department will periodically audit a program provider to monitor compliance with §419.219 of this subchapter (relating to Provider Reimbursement) and Division Six (relating to Personal Funds). The department will notify the program provider of the audit date.

(b) A program provider must maintain the following records;

(1) personal funds records, as described in §419.256(h) of this title (relating to Program Provider-Managed Personal Funds);

(2) trust fund account ledgers, as described in §419.256(c)(1)(A) and (c)(2)(A) of this title (relating to Program Provider-managed Personal Funds);

(3) statements from financial institutions regarding trust fund accounts;

(4) petty cash fund ledgers as described in §419.256(d)(3) of this title (relating to Program Provider-Managed Personal Funds);

(5) written requests for personal funds from trust fund accounts, as described in §419.257 of this title (relating to Requests for Personal Funds from Trust Fund Accounts);

(6) documentation of expenditures and deposits of personal funds, as described in §419. 256(i) of this title (relating to Program Provider-Managed Personal Funds);

(7) documentation of an individual's ability to manage personal funds and decisions regarding management of personal funds, as described in §419.253 of this title (relating to Determining Management of Personal Funds);

(8) documentation regarding requests for specific types or brands of items and services, as described in §419. 255(a) of this title (relating to Items and Services Purchased With Personal Funds);

(9) applied income ledgers, as described in §419.260(c) of this title (relating to Applied Income);

(10) applied income payment plans from TDHS;

(11) agreements to hold the individual's residential placement in the facility as described in §419.227(j) of this title (relating to Discharge From a Facility);

(12) statements from financial institutions regarding operating accounts;

(13) facility census and admission/discharge records;

(14) leave records as described in §419.226 of this title (relating to Leaves); and

(15) IPP's and supporting documentation.

(c) If the records required by subsection (b) of this section, or any other records required to be maintained by this subchapter, are not made available by the program provider when requested by the department, or the department determines that the records are not auditable, the department may impose a vendor hold on payments due to the program provider under the provider agreement until the records are available and auditable. If the program provider does not provide such records in accordance with instructions from the department, the department may terminate the provider agreement.

(d) The department will provide the program provider with a report of the audit findings, which may include corrective actions that must be taken by the program provider and internal control recommendations that may be followed by the program provider. Corrective actions include making refunds to individuals or the department, entering ledger adjustments, submitting unidentified funds to the department, and establishing and maintaining records and systems. The program provider may request an administrative hearing in accordance with Division Eight of this subchapter (relating to Administrative Hearings) to contest corrective actions required by the department pursuant to this subsection.

(e) If the report of audit findings requires corrective actions and the program provider does not make a request for an administrative hearing in accordance with Division 8 of this subchapter (relating to Administrative Hearings), the program provider must complete corrective actions within 60 days after receiving the report of audit findings.

(f) If the program provider does not complete corrective actions required by the department within 60 days after receiving the report of audit findings, the department may:

(1) impose a vendor hold on payments due to the program provider under the provider agreement until the program provider completes corrective actions;

(2) recoup payments due to the program provider under the provider agreement to make refunds to individuals or the department; and

(3) terminate the provider agreement.

(g) Notwithstanding the other provisions set forth in this section, the department may terminate the provider agreement for repeated failure to comply with §419.219 of this subchapter (relating to Provider Reimbursement) and Division Six (relating to Personal Funds), as determined by audits conducted in accordance with this section.

Comments

Source Note: The provisions of this §9.269 adopted to be effective September 1, 2001, 26 TexReg 5384; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841

Division 8

§9.273: Administrative Hearings

(a) A program provider may request an administrative hearing in accordance with Chapter 409, Subchapter B of this title (relating to Adverse Actions) if the department takes or proposes to take the following action:

(1) vendor hold;

(2) termination of a provider agreement;

(3) recoupment of payments made to the program provider; or

(4) denial of a program provider's request for payment.

(b) If the basis of an administrative hearing requested under subsection (a) of this section is a dispute regarding a LON assignment, a program provider may receive an administrative hearing only if reconsideration was requested by the program provider in accordance with department rule.

Comments

Source Note: The provisions of this §9.273 adopted to be effective July 26, 2001, 26 TexReg 5402; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841

Division 9

§9.274: Hospice Services

(a) An individual may elect to receive hospice care in a facility if the individual is eligible for such care in accordance with 40 TAC §30.10 (relating to Eligibility Requirements). An individual's LAR or surrogate decision-maker, appointed in accordance with §405.237 of this title (relating to Appointment and Qualifications of a Surrogate Decision-Maker), may elect hospice care for the individual.

(b) If hospice care is elected for an individual in accordance with 40 TAC §30.16 (relating to Election of Hospice Care), the program provider for the individual must contract with the designated hospice or discharge the individual in accordance with §419.227 of this title (relating to Discharge from a Facility).

(c) Before hospice care is provided to an individual at a facility:

(1) the program provider and the hospice must execute a contract, as described in subsection (d) of this section;

(2) the program provider and the hospice must review the individual's MR/RC Assessment to determine if a revision to the individual's LON is needed in accordance with §419.246 of this subchapter (relating to Renewal and Revision of Level of Need);

(3) the program provider must provide a signed copy of the completed MR/RC Assessment to the hospice; and

(4) the program provider must notify the TDMHMR Help Desk at (888) 952-4357 that the individual has elected to receive hospice care.

(d) A contract between a program provider and a hospice must establish the amount the hospice will pay the program provider for the individual's room and board and must require the hospice and the program provider to develop a plan of care for the individual. In this section, "room and board" includes performance of personal care services, including assistance with activities of daily living, administration of medication, maintaining the cleanliness of an individual's room, and supervision and assistance with durable medical equipment and prescribed therapies.

(e) A program provider must continue to provide services in accordance with this subchapter to an individual receiving hospice care in a facility. If the individual, or the LAR on the individual's behalf, chooses continued participation in active treatment and such treatment, in the opinion of the individual's physician, is not contraindicated by the individual's condition, it must be provided in accordance with the individual's ability to participate in it.

(f) A program provider must pay the quality assurance fee described in 1 TAC Chapter 352 (relating to Quality Assurance Fee for Long-Term Care Facilities) for an individual receiving hospice care in a facility of the program provider.

(g) Hospice staff will not be considered facility staff to establish or maintain a staff-to-client ratio.

Comments

Source Note: The provisions of this §9.274 adopted to be effective January 5, 2003, 27 TexReg 12251; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841

Division 10

§9.281: Purpose

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

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

(1) the use of a psychoactive medication;

(2) a highly restrictive procedure;

(3) major medical treatment;

(4) major dental treatment;

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

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

(c) This division does not apply to a decision for an individual regarding:

(1) experimental research;

(2) sterilization:

(3) management of funds;

(4) electroconvulsive treatment; or

(5) abortion.

Comments

Source Note: The provisions of this §9.281 adopted to be effective July 1, 2007, 32 TexReg 3856

§9.282: Application

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

Comments

Source Note: The provisions of this §9.282 adopted to be effective July 1, 2007, 32 TexReg 3856

§9.283: Informed Decision Assessment

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

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

(1) provide the following information to the individual:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Comments

Source Note: The provisions of this §9.283 adopted to be effective July 1, 2007, 32 TexReg 3856

§9.284: Making Informed Decisions

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

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

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

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

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

Comments

Source Note: The provisions of this §9.284 adopted to be effective July 1, 2007, 32 TexReg 3856

§9.285: Idt Decisions

(a) An IDT may:

(1) consent to the following changes regarding administration of a psychoactive medication subsequent to the initial consent for the medication given by a surrogate consent committee, if such changes pose no significant risk to an individual based on the judgment of the prescribing health care professional and other health care professionals involved in the individual's care:

(A) an increase or decrease in the dosage of the medication; and

(B) a change of medication within the same therapeutic drug class; and

(2) make a decision that involves risk to the individual protection and rights not specifically reserved to a surrogate decision-maker or a surrogate consent committee.

(b) An IDT's consent to a change regarding the administration of a psychoactive medication, as described in subsection (a)(1) of this section, is only valid until the expiration of the initial consent by the surrogate consent committee.

(c) The IDT must document, in the individual's record, a decision made in accordance with subsection (a) of this section, including the deliberations of the IDT in reaching the decision.

Comments

Source Note: The provisions of this §9.285 adopted to be effective July 1, 2007, 32 TexReg 3856

§9.286: Surrogate Decision-Maker

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

(b) A surrogate decision-maker may:

(1) consent to major medical treatment;

(2) consent to major dental treatment;

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

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

(c) A surrogate decision-maker may not consent to the use of psychoactive medication or a highly restrictive procedure.

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

(1) an actively involved spouse;

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

(3) an actively involved parent or stepparent;

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

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

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

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

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

Comments

Source Note: The provisions of this §9.286 adopted to be effective July 1, 2007, 32 TexReg 3856

§9.287: Provider Responsibilities Regarding Surrogate Decision-Maker

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

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

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

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

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

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

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

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

(6) that the surrogate decision-maker may:

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

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

(C) withdraw as the surrogate decision-maker.

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

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

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

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

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

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

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

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

Comments

Source Note: The provisions of this §9.287 adopted to be effective July 1, 2007, 32 TexReg 3856

§9.288: Surrogate Consent Committee Decisions

A surrogate consent committee may:

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

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

(3) consent to major medical treatment;

(4) consent to major dental treatment;

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

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

Comments

Source Note: The provisions of this §9.288 adopted to be effective July 1, 2007, 32 TexReg 3856

§9.289: Submission of Application Packet for Surrogate Consent Committee

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

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

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

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

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

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

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

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

(4) the applicable certification of need form; and

(5) appropriate supporting documentation.

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

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

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

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

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

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

Comments

Source Note: The provisions of this §9.289 adopted to be effective July 1, 2007, 32 TexReg 3856

§9.290: Appointment and Qualifications of a Surrogate Consent Committee

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

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

(A) are 18 years of age or older;

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

(C) do not manage or exercise supervisory control over:

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

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

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

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

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

(2) includes at least one volunteer who:

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

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

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

Comments

Source Note: The provisions of this §9.290 adopted to be effective July 1, 2007, 32 TexReg 3856

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

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

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

(2) the community program provider.

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

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

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

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

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

(1) relevant portions of the application packet; and

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

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

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

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

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

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

(1) include in the notice:

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

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

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

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

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

(1) include in the notice:

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

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

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

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

(E) a statement concerning the opportunity to:

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

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

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

Comments

Source Note: The provisions of this §9.291 adopted to be effective July 1, 2007, 32 TexReg 3856

§9.292: Review and Consultation Prior to Hearing

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

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

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

Comments

Source Note: The provisions of this §9.292 adopted to be effective July 1, 2007, 32 TexReg 3856

§9.293: Surrogate Consent Committee Hearing

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

(b) A community program provider must ensure that:

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

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

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

(c) At a surrogate consent committee hearing, the committee:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(j) A community program provider must:

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

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

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

(C) the written evidence presented at the hearing; and

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

Comments

Source Note: The provisions of this §9.293 adopted to be effective July 1, 2007, 32 TexReg 3856

§9.294: Notice of Guardianship Proceeding

(a) If before a surrogate consent committee makes a treatment decision, the committee is informed that an application for a guardianship proceeding for an individual has been filed with a court, the chairperson of the committee must suspend the committee proceeding for five days unless a medical necessity exists that requires a treatment decision to be made during the five-day period.

(b) If the chairperson suspends a committee proceeding and a person has not been appointed guardian for the individual within five days after the suspension, the chairperson must resume the committee proceeding.

Comments

Source Note: The provisions of this §9.294 adopted to be effective July 1, 2007, 32 TexReg 3856

§9.295: Liability for Treatment Decision

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

Comments

Source Note: The provisions of this §9.295 adopted to be effective July 1, 2007, 32 TexReg 3856

Subchapter G

§9.301: Medicaid Fair Hearings

(a) The Texas Department of Mental Health and Mental Retardation (TDMHMR) adopts by reference rules of the Health and Human Services Commission contained in 1 TAC §§357.1, 357.3, 357.5, 357.7, 357.9, 357.11, 357.13, 357.15, 357.17, 357.19, 357.21, 357.23, 357.25, 357.27, and 357.29 of Chapter 357 (relating to Medicaid Fair Hearings).

(b) As used in 1 TAC §357.1(b)(2), the term "authorized representative" means the parent, guardian, or managing conservator of an individual who is a minor or the guardian of the person of an individual who is an adult.

(c) Copies of the Health and Human Services Commission rules are available by contacting the Office of Policy Development, TDMHMR, 909 West 45th Street, Austin, Texas 78751.

Comments

Source Note: The provisions of this §9.301 adopted to be effective July 19, 1999, 24 TexReg 5473; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841

Subchapter N

§9.551: Purpose

The purpose of this subchapter is to describe:

(1) the eligibility criteria and process for enrollment in the Texas Home Living (TxHmL) Program;

(2) the requirements for TxHmL Program provider certification and process for certifying and sanctioning program providers in the TxHmL Program;

(3) the requirements for reimbursement of program providers; and

(4) the requirements for mental retardation authorities (MRAs) and the process for correcting practices found to be out of compliance with the TxHmL Program principles for mental retardation authorities.

Comments

Source Note: The provisions of this §9.551 adopted to be effective January 5, 2003, 27 TexReg 12254; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841

§9.552: Application

This subchapter applies to MRAs, program providers, and persons applying for or receiving TxHmL Program services and their legally authorized representatives (LARs).

Comments

Source Note: The provisions of this §9.552 adopted to be effective January 5, 2003, 27 TexReg 12254; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841

§9.553: Definitions

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

(1) Applicant--A Texas resident seeking services in the TxHmL Program.

(2) CARE--Client Assignment and Registration System. A DADS database with demographic and other data about an individual who is receiving services and supports or on whose behalf services and supports have been requested.

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

(4) CDSA--Consumer directed service agency. An entity, as defined in §41.103 of this title, that provides financial management services and, at the request of an individual or LAR, support consultation to an individual participating in CDS.

(5) CMS--Centers for Medicare and Medicaid Services. The federal agency that administers Medicaid programs.

(6) Critical incident data--Information a program provider enters in CARE that includes the number of behavior intervention plans authorizing restraint, the number of restraints used, the number of medication errors, the number of serious physical injuries, and the number of deaths.

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

(8) DFPS--The Department of Family and Protective Services.

(9) Financial management services--A service, as defined in §41.103 of this title, that is provided to an individual participating in CDS.

(10) HCS Program--The Home and Community-based Services Program operated by DADS as authorized by CMS in accordance with §1915(c) of the Social Security Act.

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

(12) ICF/MR Program--The Intermediate Care Facilities for Persons with Mental Retardation or Related Conditions Program.

(13) Individual--A person enrolled in the TxHmL Program.

(14) IPC--Individual plan of care. A document that describes the type and amount of each TxHmL Program service component to be provided to an individual and medical and other services and supports to be provided through non-TxHmL Program resources.

(15) IPC cost--Estimated annual cost of program services included on an IPC.

(16) IPC year--A 12-month period of time starting on the date an authorized initial or renewal IPC begins.

(17) LAR--Legally authorized representative. A person authorized by law to act on behalf of a person with regard to a matter described in this subchapter, and may include a parent, guardian, or managing conservator of a minor, or the guardian of an adult.

(18) LOC--Level of care. A determination made by DADS about an applicant or individual as part of the TxHmL Program eligibility determination process based on data submitted on the MR/RC Assessment.

(19) LON--Level of need. An assignment given by DADS for an applicant or individual that is derived from the service level score obtained from the administration of the Inventory for Client and Agency Planning (ICAP) to the individual and from selected items on the MR/RC Assessment.

(20) MRA--Mental retardation authority. An entity to which HHSC's authority and responsibility described in THSC, §531.002(11) has been delegated.

(21) MR/RC Assessment--A form used by DADS for LOC determination and LON assignment.

(22) Own home or family home--A residence that is not:

(A) an intermediate care facility for persons with mental retardation or related conditions (ICF/MR) licensed or subject to being licensed in accordance with Texas Health and Safety Code, Chapter 252 or certified by DADS;

(B) a nursing facility licensed or subject to being licensed in accordance with Texas Health and Safety Code, Chapter 242;

(C) an assisted living facility licensed or subject to being licensed in accordance with Texas Health and Safety Code, Chapter 247;

(D) a residential child-care operation licensed or subject to being licensed by DFPS unless it is a foster family home or a foster group home;

(E) a facility licensed or subject to being licensed by the Department of State Health Services;

(F) a residential facility operated by the Department of Assistive and Rehabilitative Services;

(G) a residential facility operated by the Texas Youth Commission, a jail, or a prison; or

(H) a setting in which two or more dwellings, including units in a duplex or apartment complex, single family homes, or facilities listed in subparagraphs (A) - (G) of this paragraph, but excluding supportive housing under Section 811 of the National Affordable Housing Act of 1990, meet all of the following criteria:

(i) the dwellings create a residential area distinguishable from other areas primarily occupied by persons who do not require routine support services because of a disability;

(ii) most of the residents of the dwellings are persons with mental retardation; and

(iii) the residents of the dwellings are provided routine support services through personnel, equipment, or service facilities shared with the residents of the other dwellings.

(23) Performance contract--A written agreement between DADS and an MRA for the provision of one or more functions as described in THSC, §533.035(b).

(24) PDP--Person-directed plan. A plan developed for an applicant in accordance with §9.567 of this subchapter (relating to Process for Enrollment) that describes the supports and services necessary to achieve the desired outcomes identified by the applicant or LAR on behalf of the applicant.

(25) Program provider--An entity that provides TxHmL Program services under a program provider agreement with DADS in accordance with Subchapter Q of this chapter (relating to Enrollment of Medicaid Waiver Program Providers).

(26) Program provider agreement--A written agreement between DADS and a program provider that obligates the program provider to deliver TxHmL Program service components, except for financial management services and support consultation.

(27) Respite facility--A site that is not a residence and that is owned or leased by a program provider for the purpose of providing out-of-home respite to not more than six individuals receiving TxHmL Program services or other persons receiving similar services at any one time.

(28) Service back-up plan--A plan, as defined in §41.103 of this title, that ensures continuity of critical service components if service delivery is interrupted.

(29) Service coordinator--An employee of an MRA who is responsible for assisting an applicant, individual, or LAR to access needed medical, social, educational, and other appropriate services including TxHmL Program services.

(30) Service planning team--A planning team constituted by an MRA consisting of an applicant or individual, LAR, service coordinator, and other persons chosen by the applicant, individual, or LAR.

(31) Support consultation--A service, as defined in §41.103 of this title, that is provided to an individual participating in the CDS option at the request of the individual or LAR.

(32) TAC--Texas Administrative Code. A compilation of state agency rules published by the Texas Secretary of State in accordance with Texas Government Code, Chapter 2002, Subchapter C.

(33) THSC--Texas Health and Safety Code. Texas statutes relating to health and safety.

(34) TxHmL Program--The Texas Home Living Program, operated by DADS and approved by CMS in accordance with §1915(c) of the Social Security Act, that provides community-based services and supports to eligible individuals who live in their own homes or in their family homes.

Comments

Source Note: The provisions of this §9.553 adopted to be effective January 5, 2003, 27 TexReg 12254; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841; amended to be effective March 1, 2007, 32 TexReg 544; amended to be effective June 1, 2008, 33 TexReg 4340

§9.554: Description of the Txhml Program

(a) The TxHmL Program is a Medicaid waiver program approved by the CMS pursuant to §1915(c) of the Social Security Act. It provides community-based services and supports to eligible individuals who live in their own homes or in their family homes. The TxHmL Program is operated by DADS under the authority of HHSC.

(b) Enrollment in the TxHmL Program is limited to the number of individuals in specified target groups approved by CMS.

(c) DADS has grouped the counties of the state of Texas into geographical areas, referred to as "local service areas," each of which is served by an MRA. DADS has further grouped the local service areas into "waiver contract areas." A list of the counties included in each local service area and waiver contract area is available at http://www.dads.state.tx.us.

(1) A program provider may provide TxHmL Program services only to persons residing in the counties specified in its program provider agreement.

(2) A program provider must have a separate program provider agreement for each waiver contract area served by the program provider.

(3) A program provider may have a program provider agreement to serve one or more local service areas within a waiver contract area, but the program provider must serve all of the counties within each local service area covered by the program provider agreement.

(4) A program provider may not have more than one program provider agreement per waiver contract area.

(d) A program provider's program provider agreement must:

(1) specify which of the following service components will be provided by a person who is employed, not contracted with, the program provider:

(A) community support;

(B) day habilitation;

(C) supported employment; or

(D) respite; and

(2) be amended before changing the service component specified in accordance with paragraph (1) of this subsection.

(e) The MRA must provide service coordination to an individual who is enrolled in the TxHmL Program in accordance with this subchapter. Service coordination is reimbursed in accordance with 1 TAC §355.746 (relating to Reimbursement Methodology for Mental Retardation (MR) Service Coordination).

(f) TxHmL Program service components, as defined in §9.555 of this subchapter (relating to Definitions of TxHmL Program Service Components), are selected by the service planning team for inclusion in an applicant's or individual's IPC to:

(1) ensure the applicant's or individual's health and welfare in the community;

(2) supplement rather than replace the applicant's or individual's natural supports and other non-TxHmL Program sources for which the applicant or individual may be eligible; and

(3) prevent the applicant's or individual's admission to institutional services.

(g) TxHmL Program service components, as defined in §9.555 of this subchapter, are divided into two service categories, the Community Living Service Category and the Technical and Professional Supports Service Category. Each category has an annual cost limit referred to as the service category limit. The combined cost of the two service categories must not exceed the combined cost limit per individual per IPC year specified in Appendix C of the TxHmL Program waiver application approved by CMS, which is available at http://www.dads.state.tx.us.

(1) The service category limit for the Community Living Service Category per individual per IPC year is specified in Appendix C of the TxHmL Program waiver application approved by CMS, unless an exception is approved in accordance with §9.559 of this subchapter (relating to Request to Increase Service Category Limits). This service category includes the following service components:

(A) community support;

(B) day habilitation;

(C) employment assistance;

(D) supported employment;

(E) respite;

(F) financial management services, if the individual is participating in CDS; and

(G) support consultation, if the individual is participating in CDS.

(2) The service category limit for the Professional and Technical Supports Service Category per individual per IPC year is specified in Appendix C of the TxHmL Program waiver application approved by CMS, unless an exception is made in accordance with §9.559 of this subchapter. This service category includes the following service components:

(A) nursing;

(B) behavioral support;

(C) adaptive aids;

(D) minor home modifications;

(E) specialized therapies; and

(F) dental treatment.

(h) CDS is a service delivery option, as described in Chapter 41 of this title (relating to Consumer Directed Services Option), in which an individual or LAR employs and retains service providers and directs the delivery of one or more service components. If an individual is receiving community support and respite and chooses to have one of these service components provided through CDS, the other service component must also be provided through CDS.

Comments

Source Note: The provisions of this §9.554 adopted to be effective January 5, 2003, 27 TexReg 12254; amended to be effective March 11, 2004, 29 TexReg 2317; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841; amended to be effective March 1, 2007, 32 TexReg 544; amended to be effective June 1, 2008, 33 TexReg 4340

§9.555: Definitions of Txhml Program Service Components

(a) The community support service component provides services and supports in an individual's home and at other community locations that are necessary to achieve outcomes identified in an individual's PDP.

(1) The community support service component provides habilitative or support activities that:

(A) provide or foster improvement of or facilitate an individual's ability to perform functional living skills and other activities of daily living;

(B) assist an individual to develop competencies in maintaining the individual's home life;

(C) foster improvement of or facilitate an individual's ability and opportunity to:

(i) participate in typical community activities including activities that lead to successful employment;

(ii) access and use of services and resources available to all citizens in the individual's community;

(iii) interact with members of the community;

(iv) access and use available non-TxHmL Program services or supports for which the individual may be eligible; and

(v) establish or maintain relationships with people, who are not paid service providers, that expand or sustain the individual's natural support network.

(2) The community support service component provides assistance with medications and the performance of tasks delegated by a registered nurse in accordance with state law.

(3) The community support service component does not include payment for room or board.

(4) The community support service component may not be provided at the same time that the respite, day habilitation, or supported employment service component is provided.

(5) The community support service component is reimbursed on an hourly basis.

(b) The day habilitation service component assists an individual to acquire, retain, or improve self-help, socialization, and adaptive skills necessary to live successfully in the community and participate in home and community life and does not include services that are funded under §110 of the Rehabilitation Act of 1973 or §602(16) and (17) of the Individuals with Disabilities Education Act.

(1) The day habilitation service component provides:

(A) individualized activities consistent with achieving the outcomes identified in the individual's PDP;

(B) activities necessary to reinforce therapeutic outcomes targeted by other waiver service components, school, or other support providers;

(C) services in a group setting other than the individual's home for normally up to five days a week, six hours per day;

(D) personal assistance for an individual who cannot manage personal care needs during the day habilitation activity;

(E) assistance with medications and the performance of tasks delegated by a registered nurse in accordance with state law; and

(F) transportation during the day habilitation activity necessary for the individual's participation in day habilitation activities.

(2) The day habilitation component may not be provided at the same time supported employment is provided to an individual who has obtained employment.

(3) The day habilitation component is reimbursed on a daily or one-half day unit basis.

(c) The nursing service component provides treatment and monitoring of health care procedures as prescribed by a physician or medical practitioner or as required by standards of professional practice or state law to be performed by a licensed nurse.

(1) The nursing service component includes:

(A) administration of medication;

(B) monitoring an individual's use of medications;

(C) monitoring an individual's health data and information;

(D) assisting an individual or LAR to secure emergency medical services for the individual;

(E) making referrals for appropriate medical services;

(F) performing health care procedures as ordered or prescribed by a physician or medical practitioner or as required by standards of professional practice or law to be performed by licensed nursing personnel; and

(G) delegating and monitoring tasks assigned to other service providers by a registered nurse in accordance with state law.

(2) The nursing service component is reimbursed on an hourly unit basis.

(d) The employment assistance service component assists an individual to locate paid employment in the community.

(1) The employment assistance component assists an individual with the participation of the LAR to identify:

(A) the individual's employment preferences;

(B) the individual's job skills;

(C) the individual's requirements for the work setting and work conditions; and

(D) prospective employers that may offer employment opportunities compatible with the individual's identified preferences, skills, and requirements.

(2) The employment assistance provider facilitates the individual's employment by contacting prospective employers and negotiating the individual's employment.

(3) Employment assistance is reimbursed on an hourly unit basis.

(4) The employment assistance service component must be re-authorized by the individual's service planning team every 180 calendar days after the initiation of the service component.

(e) The supported employment service component provides ongoing individualized supports needed by an individual to sustain paid work in an integrated work setting.

(1) An individual receiving supported employment is:

(A) compensated directly by the individual's employer in accordance with the Fair Labor Standards Act; and

(B) employed in an integrated work setting by an employer that has no more than one employee or 3.0% of its employees with disabilities unless the individual's PDP indicates otherwise or the employer subsequently hires an additional employee with disabilities who is receiving services from a provider other than the individual's program provider or who is not receiving services.

(2) Supported employment may only be provided when the service has been denied or is otherwise unavailable to an individual through a program operated by a state rehabilitation agency or the public school system.

(3) Supported employment is provided away from the individual's place of residence.

(4) Supported employment does not include payment for the supervisory activities rendered as a normal part of the business setting.

(5) Supported employment does not include services provided to an individual who does not require such services to continue employment.

(6) An individual's program provider may not be the employer of an individual receiving supported employment unless a variance is approved by DADS in accordance with paragraph (7) or (8) of this subsection. DADS may approve a variance for a period of time not to exceed one year.

(7) DADS may approve a variance of the requirement in paragraph (6) of this subsection if, at the time the applicant or LAR chooses enrollment in the TxHmL Program, the applicant is receiving DADS general revenue funded supported employment from a program provider, the program provider is the applicant's employer, the applicant or LAR requests the program provider to continue providing supported employment to the applicant after enrollment, and the program provider submits a written request for the variance to DADS before the effective date of the applicant's enrollment.

(8) If a variance approved in accordance with paragraph (7) of this subsection expires, DADS may approve a subsequent variance if:

(A) changes to the individual's job duties require individualized supports and training beyond that expected as a normal part of the business setting in order for the individual to sustain current employment; and

(B) the program provider submits a written request for a variance to DADS.

(9) Supported employment is reimbursed on an hourly unit basis.

(f) The behavioral support service component provides specialized interventions that assist an individual to increase adaptive behaviors to replace or modify maladaptive or socially unacceptable behaviors that prevent or interfere with the individual's inclusion in home and family life or community life. The component is reimbursed on an hourly unit basis and includes:

(1) assessment and analysis of assessment findings of the behavior(s) to be targeted necessary to design an appropriate behavioral support plan;

(2) development of an individualized behavioral support plan consistent with the outcomes identified in the individual's PDP;

(3) training of and consultation with the LAR, family members, or other support providers and, as appropriate, with the individual in the purpose/objectives, methods and documentation of the implementation of the behavioral support plan or revisions of the plan;

(4) monitoring and evaluation of the success of the behavioral support plan implementation; and

(5) modification, as necessary, of the behavioral support plan based on documented outcomes of the plan's implementation.

(g) The adaptive aids service component provides devices, controls, appliances, or supplies and the repair or maintenance of such aids, if not covered by warranty, as specified in the waiver application approved by CMS that enable an individual to increase mobility, ability to perform activities of daily living, or ability to perceive, control, or communicate with the environment in which the individual lives.

(1) Adaptive aids are provided to address specific needs identified in an individual's PDP and are limited to:

(A) lifts;

(B) mobility aids;

(C) positioning devices;

(D) control switches/pneumatic switches and devices;

(E) environmental control units;

(F) medically necessary supplies;

(G) communication aids;

(H) adapted/modified equipment for activities of daily living; and

(I) safety restraints and safety devices.

(2) Adaptive aids costing more than $2,000 but not more than $6,000 in an IPC year may be provided for an individual if DADS has approved an exception to the service category limit of the Professional and Technical Support Service Category in accordance with §9.559 of this subchapter (relating to Request to Increase Service Category Limits).

(3) The adaptive aids service component does not include items or supplies that are not of direct medical or remedial benefit to the individual or that are available to the individual through the Medicaid State Plan, through other governmental programs, or through private insurance.

(h) The minor home modifications service component provides physical adaptations to the individual's home that are necessary to ensure the health, welfare, and safety of the individual or to enable the individual to function with greater independence in the home and the repair or maintenance of such adaptations, if not covered by warranty.

(1) Minor home modifications as specified in the waiver application approved by CMS may be provided up to a lifetime limit of $7,500 per individual. Minor home modifications costing more than $2,000 but not more than $7,500 in an IPC year may be provided if DADS has approved an exception to the service category limit of the Professional and Technical Support Service Category in accordance with §9.559 of this subchapter. After the $7,500 lifetime limit has been reached, an individual is eligible for an additional $300 per IPC year for additional modifications or maintenance of home modifications.

(2) The minor home modifications service component does not include adaptations or improvements to the home that are of general utility, are not of direct medical or remedial benefit to the individual, or add to the total square footage of the home.

(3) Minor home modifications are limited to:

(A) purchase and repair of mobility/wheelchair ramps;

(B) modifications to bathroom facilities;

(C) modifications to kitchen facilities; and

(D) specialized accessibility and safety adaptations.

(i) The dental treatment service component may be provided up to a maximum of $1,000 per individual per IPC year for the following treatments:

(1) emergency dental treatment;

(2) preventive dental treatment;

(3) therapeutic dental treatment; and

(4) orthodontic dental treatment, excluding cosmetic orthodontia.

(j) The respite service component is provided for the planned or emergency short-term relief of the unpaid caregiver of an individual.

(1) The respite service component provides an individual with:

(A) assistance with activities of daily living and functional living tasks;

(B) assistance with planning and preparing meals;

(C) transportation or assistance in securing transportation;

(D) assistance with ambulation and mobility;

(E) assistance with medications and performance of tasks delegated by a registered nurse in accordance with state law;

(F) habilitation and support that facilitate:

(i) an individual's inclusion in community activities, use of natural supports and typical community services available to all people;

(ii) an individual's social interaction and participation in leisure activities; and

(iii) development of socially valued behaviors and daily living and independent living skills.

(2) Reimbursement for respite provided in a setting other than the individual's residence includes payment for room and board.

(3) Respite is provided on an hourly or daily unit basis.

(4) Respite may be provided in the individual's residence or, if certification principles stated in §9.578(o) of this subchapter (relating to Program Provider Certification Principles: Service Delivery) are met, in other locations.

(k) The specialized therapies service component provides assessment and treatment by licensed occupational therapists, physical therapists, speech and language pathologists, audiologists, and dietitians and includes training and consultation with an individual's LAR, family members or other support providers. Specialized therapies are reimbursed on an hourly unit basis.

(l) Financial management services are provided if the individual participates in CDS.

(m) Support consultation is provided at the request of the individual or LAR if the individual participates in CDS.

§9.556: Eligibility Criteria

(a) An applicant or individual is eligible for the TxHmL Program if:

(1) the applicant or individual meets the financial eligibility criteria as defined in subsection (b) of this section;

(2) the applicant or individual meets the eligibility criteria for the ICF/MR LOC I as defined in §9.238 of this chapter (relating to Level of Care I Criteria) as determined by DADS according to §9.560 of this subchapter (relating to Level of Care (LOC) Determination);

(3) the applicant or individual has had a determination of mental retardation performed in accordance with state law (THSC, Chapter 593, Admission and Commitment to Mental Retardation Services, Subchapter A) or has been diagnosed by a licensed physician as having a related condition as defined in §9.203 of this chapter (relating to Definitions) before enrollment in the TxHmL Program;

(4) the applicant or individual has been assigned an LON 1, 5, 8, or 6 in accordance with §9.562 of this subchapter (relating to Level of Need (LON) Assignment);

(5) the applicant or individual has an IPC approved in accordance with §9.558 of this subchapter (relating to Individual Plan of Care (IPC));

(6) the applicant or individual is not enrolled in another waiver program under §1915(c) of the Social Security Act;

(7) the applicant or individual has chosen, or the applicant's or individual's LAR has chosen, participation in the TxHmL Program over participation in the ICF/MR Program;

(8) the applicant's or individual's service planning team concurs that the TxHmL Program services and, if applicable, non-TxHmL Program services for which the applicant or individual may be eligible are sufficient to ensure the applicant's or individual's health and welfare in the community; and

(9) the applicant or individual lives in the applicant's or individual's own home or family home.

(b) An applicant or individual is financially eligible for the TxHmL Program if the applicant or individual:

(1) is categorically eligible for Supplemental Security Income (SSI) benefits;

(2) has once been eligible for and received SSI benefits and continues to be eligible for Medicaid as a result of protective coverage mandated by federal law;

(3) is under 20 years of age and:

(A) is financially the responsibility of DFPS in whole or in part; and

(B) is being cared for in a foster home or group home:

(i) that is licensed or certified and supervised by DFPS or a licensed public or private nonprofit child placing agency; and

(ii) in which a foster parent is the primary caregiver residing in the home;

(4) is currently receiving Medicaid for Youth Transitioning Out of Foster Care (Transitional Medicaid) because the applicant or individual formerly received foster care through DFPS and was under the financial responsibility of DFPS; or

(5) is a member of a family who receives full Medicaid benefits as a result of qualifying for Temporary Assistance for Needy Families.

Comments

Source Note: The provisions of this §9.556 adopted to be effective January 5, 2003, 27 TexReg 12254; amended to be effective March 11, 2004, 29 TexReg 2317; amended to be effective August 31, 2004, 29 TexReg 8352; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841; amended to be effective March 1, 2007, 32 TexReg 544; amended to be effective June 1, 2008, 33 TexReg 4340

§9.557: Calculation of Co-payment

(a) The method for determining an individual's or couple's co-payment is described in subsection (b) of this section and documented on HHSC's Waiver Program Co-Pay Worksheet.

(b) The co-payment amount is determined by HHSC and is the individual's or couple's remaining income after all allowable expenses have been deducted.

(1) The co-payment amount is applied only to the cost of home and community-based services funded through the TxHmL Program and specified on each individual's IPC.

(2) The co-payment must not exceed the cost of services actually delivered.

(3) The co-payment must be paid by the individual or couple, authorized representative, or trustee directly to the program provider in accordance with the HHSC determination.

(4) When calculating the co-payment amount for an individual or couple whose income exceeds the maximum personal needs allowance, the following are deducted:

(A) the personal needs allowance, which must be equivalent to 300% of the current Supplemental Security Income benefit;

(B) the cost of the maintenance needs of the individual's or couple's dependent children, which is an amount equivalent to the Temporary Assistance for Needy Families (TANF) basic monthly grant for children or a spouse with children, using the recognizable needs amounts in the TANF Budgetary Allowances Chart; and

(C) the costs incurred for medical or remedial care that are necessary but are not subject to payment by Medicare, Medicaid, or any other third party, including the cost of health insurance premiums, deductibles, and co-insurance.

Comments

Source Note: The provisions of this §9.557 adopted to be effective January 5, 2003, 27 TexReg 12254; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841; amended to be effective March 1, 2007, 32 TexReg 544

§9.558: Individual Plan of Care (IPC)

(a) An initial IPC must be developed for each applicant in accordance with §9.567 of this subchapter (relating to Process for Enrollment) and reviewed and revised for each individual whenever the individual's needs for services and supports change, but no less than annually, in accordance with §9.568 of this subchapter (relating to Revisions and Renewals of Individual Plans of Care (IPCs), Levels of Care (LOCs), and Levels of Need (LONs) for Enrolled Individuals).

(b) The IPC must specify the type and amount of each service component to be provided to the individual, as well as services and supports to be provided by other non-TxHmL Program sources during the IPC year. The type and amount of each service component must be supported by:

(1) documentation that non-TxHmL Program sources for the service component are unavailable and the service component supplements rather than replaces natural supports or non-TxHmL Program services;

(2) assessments of the individual that identify specific service components necessary for the individual to continue living in the community, to ensure the individual's health and welfare in the community, and to prevent the individual's admission to institutional services; and

(3) documentation of the deliberations and conclusions of the service planning team that the TxHmL Program service components are necessary for the individual to live in the community; are necessary to prevent the individual's admission to institutional services, and are sufficient, when combined with services or supports available from non-TxHmL Program sources (if applicable), to ensure the individual's health and welfare in the community.

(c) Before submission to DADS, an individual's IPC must be signed and dated by the required service planning team members indicating concurrence that the services recommended in the IPC meet the requirements of subsection (b) of this section.

(d) DADS reviews a submitted initial, revised, or renewal IPC and approves, modifies, or does not approve the IPC. DADS does not approve an IPC having a total cost that exceeds the combined cost limit specified in Appendix C of the TxHmL Program waiver application approved by CMS.

(e) If the IPC is submitted for approval electronically, the submitted IPC must contain information identical to that on the signed copy of the IPC.

(f) DADS may review an IPC at any time to determine if the type and amount of each service component specified in the IPC are appropriate. The service coordinator must submit documentation supporting the IPC to DADS in accordance with a request from DADS for documentation.

Comments

Source Note: The provisions of this §9.558 adopted to be effective January 5, 2003, 27 TexReg 12254; amended to be effective March 11, 2004, 29 TexReg 2317; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841; amended to be effective March 1, 2007, 32 TexReg 544; amended to be effective June 1, 2008, 33 TexReg 4340

§9.559: Request to Increase Service Category Limits

(a) If the cost of either service category included on an IPC submitted to DADS exceeds the service category limits described in §9.554(g)(1) and (2) of this subchapter (relating to Description of the TxHmL Program) but the total annual cost of the IPC does not exceed the combined cost limit specified in Appendix C of the TxHmL Program waiver application approved by CMS, an individual's service coordinator must request from DADS an increase in the appropriate service category limit.

(1) The service coordinator must submit the request in writing.

(2) The written request must be accompanied by documentation meeting the requirements of §9.558(b) of this subchapter (relating to Individual Plan of Care (IPC)).

(b) DADS reviews the request and approves or denies it.

(c) DADS may approve the request if the increase is determined necessary to protect the individual's health and welfare or to prevent the individual's admission to institutional services.

(d) DADS denies a request for an increase to the Professional and Technical Support Service Category if the request, if granted, would result in:

(1) more than $6,000 per IPC year for adaptive aids;

(2) more than $7,500 per IPC year for minor home modifications;

(3) more than $300 per IPC year for additional minor home modifications or minor home modification maintenance if the lifetime limit has been reached; or

(4) more than $1,000 per IPC year for dental treatment.

(e) As part of its review of the request, DADS reviews the individual's IPC in accordance with §9.558(d) of this subchapter.

(f) If DADS denies a request to increase a service category limit, DADS:

(1) notifies the individual's service coordinator; and

(2) notifies the individual or LAR of the individual's right to request a fair hearing in accordance with §9.571 of this subchapter (relating to Fair Hearings).

Comments

Source Note: The provisions of this §9.559 adopted to be effective January 5, 2003, 27 TexReg 12254; amended to be effective March 11, 2004, 29 TexReg 2317; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841; amended to be effective March 1, 2007, 32 TexReg 544; amended to be effective June 1, 2008, 33 TexReg 4340

§9.560: Level of Care (LOC) Determination

(a) An MRA must request an LOC determination for an applicant or individual by electronically submitting a completed MR/RC Assessment to DADS, indicating the recommended LOC. The electronically transmitted MR/RC Assessment must contain information identical to that on the signed MR/RC Assessment.

(b) DADS makes an LOC determination in accordance with §9.237(c) of this chapter (relating to Level of Care).

(c) Information on the MR/RC Assessment must be supported by current data obtained from standardized evaluations and formal assessments that measure physical, emotional, social, and cognitive factors.

(d) The MRA must maintain the signed MR/RC Assessment and documentation supporting the recommended LOC in the applicant's or individual's record.

(e) DADS approves and enters the appropriate LOC into the automated billing and enrollment system or sends written notification to the service coordinator that an LOC has been denied.

(f) An LOC determination is valid for 364 calendar days after the LOC effective date determined by DADS.

Comments

Source Note: The provisions of this §9.560 adopted to be effective January 5, 2003, 27 TexReg 12254; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841; amended to be effective March 1, 2007, 32 TexReg 544

§9.561: Lapsed Level of Care (LOC)

(a) To reinstate authorization for payment for days when services were delivered to an individual without a current LOC determination, an MRA must electronically submit to DADS an MR/RC Assessment for each period of time for which there was a lapsed LOC according to DADS procedures.

(b) The MRA must maintain in the individual's record:

(1) a copy of the individual's most recent MR/RC Assessment approved by DADS; and

(2) an MR/RC Assessment identical to that submitted in accordance with subsection (a) of this section for each period of time for which there was a lapsed LOC.

(c) DADS does not grant a request for reinstatement of an LOC determination:

(1) to establish program eligibility;

(2) to renew an LOC determination;

(3) to obtain an LOC determination for a period of time for which an LOC has been denied;

(4) to revise an LON; or

(5) for a period of time for which an individual's IPC is or was not current.

Comments

Source Note: The provisions of this §9.561 adopted to be effective January 5, 2003, 27 TexReg 12254; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841; amended to be effective March 1, 2007, 32 TexReg 544

§9.562: Level of Need (LON) Assignment

(a) An MRA must request DADS to assign an LON for an applicant or individual by electronically transmitting a completed MR/RC Assessment to DADS, indicating the recommended LON and, as appropriate, submitting supporting documentation in accordance with §9.563(b) and (c) of this subchapter (relating to DADS' Review of Level of Need (LON)).

(b) The MRA must maintain the applicant's or individual's Inventory for Client and Agency Planning (ICAP) Assessment Booklet supporting the recommended LON in the applicant's or individual's record and other documentation supporting the requested LON, including:

(1) the individual's PDP, including the deliberations and conclusions of the applicant's or individual's service planning team;

(2) assessments and interventions by qualified professionals; and

(3) behavioral intervention plans.

(c) If an LON 9 is recommended, the MRA must maintain documentation that proves:

(1) the applicant or individual exhibits extremely dangerous behavior that could be life threatening to the applicant or individual or to others;

(2) a written behavior intervention plan has been implemented that meets DADS guidelines and is based on ongoing written data, targets the extremely dangerous behavior with individualized objectives, and specifies intervention procedures to be followed when the extremely dangerous behavior occurs;

(3) management of the applicant's or individual's behavior requires a person to exclusively and constantly supervise the individual during the individual's waking hours, which must be at least 16 hours per day;

(4) the person supervising the individual has no other duties or activities during the period of supervision; and

(5) the individual's MR/RC Assessment if correctly scored with a "2" in the Behavior section.

(d) DADS assigns an LON for an individual based on the individual's ICAP service level score, information reported on the individual's MR/RC Assessment, and required supporting documentation. Documentation supporting a recommended LON must be submitted to DADS in accordance with DADS guidelines.

(e) DADS assigns one of five LONs in accordance with §9.161 of this chapter (relating to Level of Need Assignment).

Comments

Source Note: The provisions of this §9.562 adopted to be effective January 5, 2003, 27 TexReg 12254; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841; amended to be effective March 1, 2007, 32 TexReg 544

§9.563: Dads' Review of Level of Need (LON)

(a) DADS may review a recommended or assigned LON at any time to determine if it is appropriate. If DADS reviews an LON, documentation supporting the LON must be submitted by the MRA to DADS in accordance with DADS' request. Based on its review, DADS may modify an LON.

(b) If an LON 9 is requested, DADS may review documentation supporting the requested LON.

(c) Documentation supporting a recommended LON described in subsection (b) of this section must be submitted by the MRA to DADS in accordance with this subchapter and received by DADS within seven calendar days after the MRA has electronically transmitted the recommended LON.

(d) Within 21 calendar days after receiving the supporting documentation, DADS:

(1) requests additional documentation;

(2) electronically approves the recommended LON and establishes the effective date; or

(3) sends written notification that the recommended LON has been denied.

(e) DADS reviews any additional documentation submitted in accordance with DADS' request and electronically approves the recommended LON or sends written notification to the MRA that the recommended LON has been denied.

Comments

Source Note: The provisions of this §9.563 adopted to be effective January 5, 2003, 27 TexReg 12254; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841; amended to be effective March 1, 2007, 32 TexReg 544

§9.566: Notification of Applicants

(a) DADS notifies an MRA, in writing, of a TxHmL Program vacancy in the MRA's local service area and directs the MRA to offer the program vacancy to the applicant:

(1) whose name is not coded in the Client Assignment and Registration System (CARE) as having previously declined an offer to enroll in the TxHmL Program or as having been determined ineligible for the TxHmL Program and is:

(A) whose registration date, assigned in accordance with §9.165(1) of this chapter (relating to Maintenance of HCS Program Waiting List), is earliest on the statewide waiting list for the HCS Program as maintained by DADS; or

(B) whose registration date, assigned in accordance with §9.165(1) of this chapter, is earliest on the local service area waiting list for the HCS Program as maintained by the MRA in accordance with §9.165 of this chapter; or

(2) whose name is not coded in CARE as having been determined ineligible for the TxHmL Program and who is receiving services from the MRA that are funded by general revenue in an amount that would allow DADS to fund the services through the TxHmL Program.

(b) The MRA must make the offer of program vacancy in writing and deliver it to the applicant or LAR by regular United States mail or by hand delivery.

(c) The MRA must include in a written offer that is made in accordance with subsection (a) of this section:

(1) a statement that:

(A) if the applicant or LAR does not respond to the offer of the program vacancy within 30 calendar days after the MRA's written offer:

(i) the MRA withdraws the offer of the program vacancy; and

(ii) the MRA codes the applicant's name in CARE as having "declined" the offer of TxHmL Program enrollment; and

(B) if the applicant is currently receiving services from the MRA that are funded by general revenue and the applicant or LAR declines the offer of the program vacancy, the MRA terminates those services that are similar to services provided under the TxHmL Program;

(2) information relating to the time frame requirements described in subsection (e)(2) - (3) of this section using the Deadline Notification form, which is available at http://www.dads.state.tx.us; and

(3) a statement that whether the applicant or LAR responds to the offer of program vacancy or chooses or declines participation in the TxHmL Program, the applicant's name remains on the HCS Program waiting list without change to the applicant's registration date.

(d) If an applicant or LAR responds to an offer of program vacancy, the MRA must:

(1) provide the applicant, LAR, and, if the LAR is not a family member, at least one family member (if possible) both an oral and a written explanation of the services and supports for which the applicant may be eligible, including the ICF/MR Program (both state mental retardation facilities and community-based facilities), waiver programs authorized under §1915(c) of the Social Security Act, and other community-based services and supports using the Explanation of Services and Supports document which is available at http://www.dads.state.tx.us/business/mental_retardation/mrla/index.html; and

(2) give the applicant or LAR the TxHmL Verification of Freedom of Choice form, which is available at http://www.dads.state.tx.us/business/mental_retardation/forms/index.html to document the applicant's choice regarding the TxHmL Program and ICF/MR Program.

(e) The MRA must withdraw an offer of a program vacancy made to an applicant or LAR and code the applicant's name in CARE as having "declined" the offer of TxHmL Program enrollment in accordance with the Mental Retardation Services and Supports Interest List Policy and Procedures Manual if:

(1) within 30 calendar days after the MRA's offer made to the applicant or LAR in accordance with subsection (a) of this section, the applicant or LAR does not respond to the offer of the program vacancy;

(2) within seven calendar days after the applicant or LAR receives the TxHmL Verification of Freedom of Choice form from the MRA in accordance with subsection (d)(2) of this section, the applicant or LAR does not document the choice of TxHmL Program services over the ICF/MR Program using the TxHmL Verification of Freedom of Choice form; or

(3) within 30 calendar days after the applicant or LAR has received the contact information regarding all available program providers in the MRA's local service area in accordance with §9.567(d)(1) of this subchapter (relating to Process for Enrollment), the applicant or LAR does not document a choice of a program provider using the Documentation of Provider Choice form.

(f) If the MRA withdraws an offer of a program vacancy made to an applicant and codes the applicant's name in CARE as having "declined" the offer of TxHmL Program enrollment in accordance with subsection (e) of this section, the MRA must notify the applicant or LAR of such actions, in writing, by certified United States mail.

(g) If the applicant is currently receiving services from the MRA that are funded by general revenue and the applicant declines the offer of the program vacancy, the MRA must terminate those services that are similar to services provided under the TxHmL Program.

(h) If the MRA terminates an applicant's services in accordance with subsection (g) of this section, the MRA must notify the applicant or LAR of the termination, in writing, by certified United States mail and provide an opportunity for a review in accordance with §2.46 of this title (relating to Notification and Appeals Process).

(i) The MRA must retain in the applicant's record:

(1) the TxHmL Verification of Freedom of Choice form documenting the applicant's or LAR's choice of services;

(2) the Documentation of Provider Choice form documenting the applicant's or LAR's choice of program provider; and

(3) any correspondence related to the offer of a program vacancy.

Comments

Source Note: The provisions of this §9.566 adopted to be effective March 1, 2007, 32 TexReg 544

§9.567: Process for Enrollment

(a) If an applicant or LAR chooses participation in the TxHmL Program, the MRA must assign a service coordinator who develops, in conjunction with the service planning team, a PDP. At a minimum, the PDP must include the following:

(1) a description of the services and supports the applicant requires to continue living in the applicant's own home or family home;

(2) a description of the applicant's current existing natural supports and non-TxHmL Program services that will be available if the applicant is enrolled in the TxHmL Program;

(3) a description of individual outcomes to be achieved through TxHmL Program service components and justification for each service component to be included in the IPC;

(4) documentation that the type and amount of each service component included in the applicant's IPC do not replace existing natural supports or non-TxHmL Program sources for the service components for which the applicant may be eligible;

(5) a description of actions and methods to be used to reach identified service outcomes, projected completion dates, and person(s) responsible for completion;

(6) a statement that the applicant was provided the information regarding CDS as required by subsection (b) of this section;

(7) if the applicant chooses to participate in CDS, a description of the service components provided through CDS, as required by subsection (e) of this section; and

(8) if the applicant chooses to participate in CDS, a description of the applicant's service back-up plan, as required by subsection (e) of this section.

(b) The MRA must:

(1) inform the applicant or LAR of the applicant's right to participate in CDS and discontinue participation in CDS at any time, except as provided in §41.405(a) of this title (relating to Suspension of Participation in CDS);

(2) inform the applicant or LAR that:

(A) except as provided in subparagraph (B) of this paragraph, the applicant or LAR may choose to have one or more service components provided through CDS; and

(B) if the applicant is receiving community support and respite and chooses to have one of these service components provided through CDS, the other service component must also be provided through CDS;

(3) provide the applicant or LAR a copy of Forms 1581, 1582, and 1583, which are available at http://www.dads.state.tx.us/handbooks/forms/default.asp?HB=CDS and which contain information about CDS, including a description of financial management services and support consultation;

(4) provide an oral explanation of the information contained in Forms 1581, 1582, and 1583 to the applicant or LAR; and

(5) provide the applicant or LAR the opportunity to choose to participate in CDS and document the applicant's or LAR's choice on Form 1584, which is available at http://www.dads.state.tx.us/handbooks/forms/default.asp?HB=CDS.

(c) The MRA must compile and maintain information necessary to process the applicant's or LAR's request for enrollment in the TxHmL Program.

(1) The MRA must complete an MR/RC Assessment.

(A) The MRA must:

(i) determine or validate a determination that the applicant has mental retardation in accordance with Chapter 5, Subchapter D of this title (relating to Diagnostic Eligibility for Services and Supports--Mental Retardation Priority Population and Related Conditions); or

(ii) verify that the individual has been diagnosed by a licensed physician as having a related condition as defined in §9.203 of this chapter (relating to Definitions).

(B) The MRA must administer the Inventory for Client and Agency Planning (ICAP) or validate a current ICAP and recommend an LON assignment to DADS in accordance with §9.562 of this subchapter (relating to Level of Need (LON) Assignment).

(2) The MRA must develop a proposed IPC with the applicant or LAR based on the PDP and §9.555 of this subchapter (relating to Definitions of TxHmL Program Service Components).

(d) For applicants notified of a program vacancy in accordance with §9.566 of this subchapter (relating to Notification of Applicants), the MRA:

(1) provides names and contact information to the applicant or LAR regarding all available program providers in the MRA's local service area (i.e., program providers operating below their service capacity as identified in the Client Assignment and Registration System (CARE));

(2) reviews the proposed IPC with potential program providers selected by the applicant or the LAR;

(3) arranges for meetings or visits with potential program providers as desired by the applicant or the LAR;

(4) ensures that the applicant's or LAR's choice of a program provider is documented, signed by the individual or LAR, and retained by the MRA in the applicant's record; and

(5) negotiates and finalizes the proposed IPC with the selected program provider.

(e) If an applicant or LAR chooses to participate in CDS, the MRA must:

(1) provide names and contact information to the applicant or LAR regarding all CDSAs providing services in the MRA's local service area;

(2) document the applicant's or LAR's choice of CDSA on Form 1584;

(3) document, in the applicant's PDP, a description of the service component provided through CDS; and

(4) document, in the applicant's PDP, a description of the applicant's service back-up plan.

(f) When the selected program provider and CDSA, if applicable have agreed to deliver those services delineated on the IPC, the MRA transmits to DADS enrollment information, including the completed MR/RC Assessment, the proposed IPC, and, if applicable, a request for an increase in a service category limit as described in §9.559 of this subchapter (relating to Request to Increase Service Category Limits). DADS notifies the applicant or LAR, the selected program provider and CDSA, if applicable, and the MRA of its approval or denial of the applicant's program enrollment based on the eligibility criteria described in §9.556 (relating to Eligibility Criteria).

(g) If a selected program provider initiates services before DADS' notification of enrollment approval, the program provider may not be reimbursed in accordance with §9.573(a)(11)(K) of this subchapter (relating to Reimbursement).

Comments

Source Note: The provisions of this §9.567 adopted to be effective January 5, 2003, 27 TexReg 12254; amended to be effective March 11, 2004, 29 TexReg 2317; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841; amended to be effective March 1, 2007, 32 TexReg 544

§9.568: Revisions and Renewals of Individual Plans of Care (IPCs), Levels of Care (LOCs), and Levels of Need (LONs) for Enrolled Individuals

(a) At least annually, and before the expiration of an individual's IPC, the service planning team and the program provider must review the PDP and IPC to determine whether individual outcomes and services previously identified remain relevant.

(1) The service coordinator, in collaboration with the service planning team, initiates revisions to the IPC in response to changes in the individual's needs and identified outcomes as documented in the current PDP.

(2) The service coordinator must submit annual reviews and necessary revisions of the IPC, including any request for an increase in a service category limit as described in §9.559 of this subchapter (relating to Request to Increase Service Category Limits), to DADS for approval and retain documentation as described in §9.567 of this subchapter (relating to Process for Enrollment) and §9.558 of this subchapter (relating to Individual Plan of Care (IPC)).

(b) The service coordinator must submit annual evaluations of LOC or revisions of LOC to DADS for approval in accordance with §9.560 of this subchapter (relating to Level of Care (LOC) Determination).

(c) The MRA must re-administer the ICAP to an individual in accordance with paragraph (1) of this subsection and must submit an MR/RC Assessment to DADS recommending a revision of the individual's LON assignment if the ICAP results indicate a change of the individual's LON assignment may be appropriate.

(1) The ICAP must be re-administered three years after an individual's enrollment and every third year thereafter unless, before that date:

(A) changes in the individual's functional skills or behavior occur that are not expected to be of short duration or cyclical in nature; or

(B) the individual's skills and behavior are inconsistent with the individual's assigned LON.

(2) As appropriate, the service coordinator must submit supporting documentation to DADS in accordance with §9.563 of this subchapter (relating to DADS' Review of Level of Need (LON)).

(3) The MRA must retain in the individual's record results and recommendations of individualized assessments and other pertinent records documenting the recommended LON assignment.

Comments

Source Note: The provisions of this §9.568 adopted to be effective January 5, 2003, 27 TexReg 12254; amended to be effective March 11, 2004, 29 TexReg 2317; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841; amended to be effective March 1, 2007, 32 TexReg 544

§9.569: Coordination of Transfers

(a) An individual moving to the local service area of a different MRA or the LAR may request to transfer to a TxHmL Program provider in the new service area. The service coordinator from the receiving MRA must:

(1) coordinate with the individual or LAR and the current MRA to facilitate selection of a TxHmL Program provider in the receiving area;

(2) provide information to assist the individual or LAR regarding TxHmL Program providers in the area;

(3) determine an effective date for the transfer in conjunction with the individual or LAR, the current TxHmL Program provider, and the receiving TxHmL Program provider; and

(4) review the current IPC with the individual or LAR and the receiving TxHmL Program provider and negotiate and finalize the IPC.

(b) If an individual or LAR chooses to transfer to a TxHmL Program provider within the current MRA's local service area, the service coordinator must:

(1) coordinate with the individual or LAR, the current TxHmL Program provider, and the receiving TxHmL Program provider to facilitate the transfer;

(2) review the current IPC with the individual or LAR and the receiving TxHmL Program provider and initiate any changes, if needed; and

(3) determine an effective date for transfer in conjunction with the individual or LAR, current TxHmL Program provider and the receiving TxHmL Program provider.

(c) An individual's IPC year will not be changed upon transfer to another TxHmL Program provider.

Comments

Source Note: The provisions of this §9.569 adopted to be effective January 5, 2003, 27 TexReg 12254; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841

§9.570: Permanent Discharge from the Txhml Program and Suspension of Txhml Program Services

(a) An individual may be permanently discharged from the TxHmL Program if:

(1) the individual no longer meets the eligibility criteria specified in §9.556 of this subchapter (relating to Eligibility Criteria);

(2) the individual or LAR requests permanent discharge; or

(3) the individual or LAR refuses to cooperate in the delivery or planning of services and:

(A) such refusal is documented by the program provider and the service coordinator; and

(B) the service coordinator has explained to the individual or LAR in writing that such refusal may result in discharge from the TxHmL Program.

(b) DADS may propose permanent discharge of an individual at its own initiation or based on an MRA's request for permanent discharge of an individual.

(c) To request permanent discharge of an individual by DADS, the individual's service coordinator must, within 14 calendar days of determining that one of the criteria in subsection (a) of this section is met, submit a written request containing the following information to DADS and provide a copy of the request to the individual or LAR:

(1) the reason permanent discharge is requested;

(2) a discharge plan documenting, as appropriate:

(A) that, before submission of the request for permanent discharge, the individual or LAR was informed of the individual's option to transfer to another program provider and the consequences of permanent discharge for receiving future TxHmL Program services; and

(B) the service linkages that are in place following the individual's discharge from the TxHmL Program; and

(3) if permanent discharge is recommended for the reason stated in subsection (a)(3) of this section:

(A) a description of the action by the individual or LAR demonstrating refusal to cooperate in the delivery or planning of services and the effect of such action on the planning or delivery of services;

(B) a description of the action by the program provider and service coordinator, including face-to-face meetings between the service coordinator and individual or LAR, to resolve the circumstances causing the individual's or LAR's refusal to cooperate; and

(C) a copy of the written explanation sent by the service coordinator to the individual or LAR explaining the consequences of refusal to cooperate.

(d) If DADS proposes to permanently discharge an individual, DADS sends a written discharge notification to the individual or LAR, the program provider, and the MRA indicating the effective date of the discharge and the individual's right to a fair hearing in accordance with §9.571 of this subchapter (relating to Fair Hearings).

(e) If the reason for the proposed permanent discharge is that the individual no longer meets the eligibility criteria described in §9.556(a)(5) and (8) of this subchapter, DADS instructs the service coordinator to:

(1) inform the individual or LAR that DADS, based on availability, offers the individual a program vacancy in the HCS Program in accordance with §9.164(a)(3) of this chapter (relating to Process for Enrollment of Applicants); and

(2) offer to assist the individual or LAR to apply for other services for which the individual may be eligible including other home and community-based service programs and ICF/MR Program services.

(f) If an individual is temporarily admitted to one of the following settings, DADS suspends TxHmL Program services during that admission:

(1) a hospital;

(2) an ICF/MR licensed or subject to being licensed in accordance with Texas Health and Safety Code, Chapter 252 or certified by DADS;

(3) a nursing facility licensed or subject to being licensed in accordance with Texas Health and Safety Code, Chapter 242;

(4) a residential child-care operation licensed or subject to being licensed by DFPS;

(5) a facility licensed or subject to being licensed by the Department of State Health Services;

(6) a facility operated by the Department of Assistive and Rehabilitative Services; or

(7) a residential facility operated by the Texas Youth Commission, a jail, or a prison.

Comments

Source Note: The provisions of this §9.570 adopted to be effective January 5, 2003, 27 TexReg 12254; amended to be effective March 11, 2004, 29 TexReg 2317; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841; amended to be effective March 1, 2007, 32 TexReg 544; amended to be effective June 1, 2008, 33 TexReg 4340

§9.571: Fair Hearings

An applicant or individual whose request for eligibility for the TxHmL Program is denied or is not acted upon with reasonable promptness, or whose TxHmL Program services have been terminated, suspended, or reduced by DADS, or the applicant's or individual's LAR is entitled to a fair hearing in accordance with Subchapter G of this chapter (relating to Medicaid Fair Hearings).

Comments

Source Note: The provisions of this §9.571 adopted to be effective January 5, 2003, 27 TexReg 12254; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841; amended to be effective March 1, 2007, 32 TexReg 544

§9.572: Other Program Provider Requirements

Program providers must comply with requirements of the Omnibus Budget Reconciliation Act of 1990, 42 United States Code §1396a(w)(1), regarding advanced directives under state plans for medical assistance.

Comments

Source Note: The provisions of this §9.572 adopted to be effective January 5, 2003, 27 TexReg 12254; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841

§9.573: Reimbursement

(a) Program provider reimbursement.

(1) DADS pays the program provider for service components as follows:

(A) Community support, nursing, respite, day habilitation, employment assistance, supported employment, behavioral support, and specialized therapies are paid for in accordance with the reimbursement rate for the specific service component.

(B) Adaptive aids, minor home modifications, and dental treatment are paid for based on the actual cost of the item or service and an allowed requisition fee.

(2) The program provider must accept DADS' payment for a service component as payment in full for the service component.

(3) If the program provider disagrees with the enrollment date of an individual as determined by DADS, the program provider must notify DADS in writing of its disagreement, including the reasons for the disagreement, within 180 days after the end of the month in which the program provider receives the enrollment approval letter. DADS reviews the information submitted by the program provider and notifies the program provider, the MRA, and the individual or LAR of its determination regarding the individual's enrollment date.

(4) The program provider must prepare and submit claims for service components in accordance with this subchapter, the TxHmL Provider Agreement, and the TxHmL Service Definitions and Billing Guidelines.

(5) The program provider must submit an initial claim for a service component as follows:

(A) Community support, nursing, respite, day habilitation, employment assistance, supported employment, behavioral support, and specialized therapies must be electronically transmitted to DADS via the automated enrollment and billing system.

(B) Adaptive aids, minor home modifications, and dental treatment must be submitted in writing to DADS for entry into the automated enrollment and billing system.

(6) The program provider must submit a claim for a service component to DADS by the latest of the following dates:

(A) within 95 calendar days after the end of the month in which the service component was provided;

(B) within 45 calendar days after the date of the enrollment approval letter issued by DADS; or

(C) within 95 calendar days after the end of the month in which the program provider obtains from the MRA a dated response from a non-TxHmL Program source for which the individual may be eligible, refusing or denying a correctly submitted request for payment for or provision of the service component.

(7) If an individual is temporarily or permanently discharged from the TxHmL Program, the program provider may submit a claim for a service component provided on the day of the individual's discharge.

(8) If DADS rejects a claim for adaptive aids, minor home modifications, or dental treatment, the program provider may submit a corrected claim to DADS. The corrected claim must be received by DADS within 180 days after the end of the month in which the service component was provided or within 45 days after the date of the notification of the rejected claim, whichever is later.

(9) If the program provider submits a claim for an adaptive aid or dental treatment, the program provider must submit documentation obtained from the MRA demonstrating that sources of payment other than the TxHmL Program for which the individual may be eligible, including Medicare, Medicaid (such as Texas Health Steps and Home Health), a state rehabilitation agency, the public school system, and private insurance, denied a request for payment. Such documentation must include evidence that a proper, complete, and timely request for payment or provision of the service component was made to the other payment source and that payment or provision of the service was denied.

(10) If the program provider submits a claim for an adaptive aid that costs $500 or more or for a minor home modification that costs $1,000 or more, the program provider must submit an individualized assessment conducted by a professional qualified to assess whether the aid or modification is necessary and appropriate to address the individual's needs and other documentation in accordance with DADS instructions.

(11) DADS does not pay the program provider for a service component or recoups any payments made to the program provider for a service component if:

(A) the individual receiving the service component was, at the time the service component was provided, ineligible for the TxHmL Program or Medicaid benefits, or was an inpatient of a hospital, nursing facility, or intermediate care facility for persons with mental retardation;

(B) the service component was not included on the signed and dated IPC of the individual in effect at the time the service component was provided;

(C) the service component provided did not meet the service definition as described in §9.555 of this subchapter (relating to Definitions of TxHmL Program Service Components) or was not provided in accordance with the TxHmL Service Definitions and Billing Guidelines;

(D) the service component was not documented in accordance with the TxHmL Service Definitions and Billing Guidelines;

(E) the claim for the service component was not prepared and submitted in accordance with the TxHmL Service Definitions and Billing Guidelines;

(F) documentation as required by paragraph (10) of this subsection was not submitted by the program provider;

(G) DADS determines that the service component would have been paid for by a source other than the TxHmL Program;

(H) the service component was provided by a service provider who did not meet the qualifications to provide the service component as described in the TxHmL Service Definitions and Billing Guidelines;

(I) the service component was not provided in accordance with a signed and dated IPC meeting the requirements set forth in §9.558 of this subchapter (relating to Individual Plan of Care (IPC);

(J) the service component was not provided in accordance with the PDP;

(K) the service component was provided before the individual's enrollment date into the TxHmL Program; or

(L) the service component was not provided.

(12) The program provider must refund to DADS any overpayment made to the program provider within 60 days after the program provider's discovery of the overpayment or receipt of a notice of such discovery from DADS, whichever is earlier.

(13) Payments by DADS to a program provider are not withheld in the event the MRA erroneously fails to submit a renewal of an enrolled individual's LOC or IPC and the program provider continues to provide services in accordance with the most recent IPC as approved by DADS.

(b) CDSA reimbursement. For an individual participating in CDS, DADS pays the CDSA for the service components listed in §9.554(g) of this subchapter (relating to Description of the TxHmL Program) that are provided through CDS, in accordance with the reimbursement rate established by HHSC.

(c) Billing and payment reviews.

(1) DADS conducts billing and payment reviews to monitor a program provider's compliance with this subchapter and the TxHmL Program Service Definitions and Billing Guidelines. DADS conducts such reviews in accordance with the TxHmL Billing and Payment Review Protocol set forth in the TxHmL Program Service Definitions and Billing Guidelines. As a result of a billing and payment review, DADS may:

(A) recoup payments from a program provider; and

(B) based on the amount of unverified claims, require a program provider to develop and submit, in accordance with DADS instructions, a corrective action plan that improves the program provider's billing practices.

(2) A corrective action plan required by DADS in accordance with paragraph (1)(B) of this subsection must:

(A) include:

(i) the reason the corrective action plan is required;

(ii) the corrective action to be taken;

(iii) the person responsible for taking each corrective action; and

(iv) a date by which the corrective action will be completed that is no later than 90 calendar days after the date the program provider is notified the corrective action plan is required;

(B) be submitted to DADS within 30 calendar days after the date the program provider is notified the corrective action plan is required; and

(C) be approved by DADS before implementation.

(3) Within 30 calendar days after the corrective action plan is received by DADS, DADS notifies the program provider if the corrective action plan is approved or if changes to the plan are required.

(4) If DADS requires a program provider to develop and submit a corrective action plan in accordance with paragraph (1)(B) of this subsection and the program provider requests an administrative hearing for the recoupment in accordance with §9.575 of this chapter (relating to Program Provider's Right to Administrative Hearing), the program provider is not required to develop or submit a corrective action plan while a hearing decision is pending. DADS notifies the program provider if the requirement to submit a corrective action plan or the content of such a plan changes based on the outcome of the hearing.

(5) If the program provider does not submit the corrective action plan or complete the required corrective action within the time frames described in paragraph (2) of this subsection, DADS may impose a vendor hold on payments due to the program provider under the program provider agreement until the program provider takes the corrective action.

(6) If the program provider does not submit the corrective action plan or complete the required corrective action within 30 calendar days after the date a vendor hold is imposed in accordance with paragraph (5) of this subsection, DADS may terminate the program provider agreement.

Comments

Source Note: The provisions of this §9.573 adopted to be effective January 5, 2003, 27 TexReg 12254; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841; amended to be effective March 1, 2007, 32 TexReg 544; amended to be effective June 1, 2008, 33 TexReg 4340

§9.574: Record Retention

(a) A program provider must retain original records described in this subchapter necessary to disclose the extent of the service components provided by the program provider or required by the program provider agreement and, on request, provide DADS, at no cost to DADS, any such records and any information regarding claims filed by the program provider until the latest of the following occurs:

(1) six years elapse from the date the records were created;

(2) any audit exception or litigation involving the records is resolved; or

(3) the individual becomes 21 years of age.

(b) An MRA must retain original records described in this subchapter necessary to disclose the extent of the services provided to the individual and, on request, provide DADS, at no cost to DADS, any such records until the latest of the following occurs:

(1) six years elapse from the date the records were created;

(2) any audit exception or litigation involving the records is resolved; or

(3) the individual becomes 21 years of age.

Comments

Source Note: The provisions of this §9.574 adopted to be effective January 5, 2003, 27 TexReg 12254; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841; amended to be effective March 1, 2007, 32 TexReg 544

§9.575: Program Provider's Right to Administrative Hearing

A program provider may request an administrative hearing in accordance with Subchapter B of this chapter (relating to Adverse Actions), if DADS takes or proposes to take the following action:

(1) vendor hold;

(2) contract termination;

(3) recoupment of payments made to the program provider; or

(4) denial of a program provider's request for payment.

Comments

Source Note: The provisions of this §9.575 adopted to be effective January 5, 2003, 27 TexReg 12254; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841; amended to be effective March 1, 2007, 32 TexReg 544

§9.576: Program Provider Certification and Review

(a) The program provider must be in continuous compliance with the certification principles contained in this subchapter.

(b) DADS conducts an on-site certification review of the program provider to evaluate evidence of the program provider's compliance with certification principles. Based on its review, DADS takes action as described in §9.577 of this subchapter (relating to Corrective Action and Program Provider Sanctions).

(c) Following the initial on-site certification review by DADS, conducted in accordance with Subchapter Q of this chapter (relating to Enrollment of Medicaid Waiver Program Providers), DADS conducts an on-site certification review at least annually.

(d) DADS certifies a program provider for a period of 365 calendar days after the date of an initial or annual certification review.

(e) DADS may conduct announced or unannounced reviews of the program provider at any time.

(f) During any review, including a follow-up review or a review in which corrective action from a previous review is being evaluated, DADS may review the TxHmL Program services provided to any individual to determine if the program provider is in compliance with the certification principles.

(g) DADS conducts an exit conference at the end of all on-site reviews, at a time and location determined by DADS, to inform the program provider of DADS' findings, determination, any proposed actions, and any actions required of the program provider.

Comments

Source Note: The provisions of this §9.576 adopted to be effective January 5, 2003, 27 TexReg 12254; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841; amended to be effective March 1, 2007, 32 TexReg 544

§9.577: Corrective Action and Program Provider Sanctions

(a) If DADS determines that the program provider is in compliance with all certification principles at the end of the review exit conference, DADS certifies the program provider and no action by the program provider is required.

(b) If DADS determines that the program provider is out of compliance with 10 percent or fewer of the certification principles at the end of the review exit conference, but the program provider is in compliance with all principles found out of compliance in the previous review, the program provider must submit a corrective action plan to DADS within 14 calendar days after the program provider receives DADS' certification report.

(1) The corrective action plan must specify a date by which corrective action will be completed, and such date must be no later than 90 calendar days after the certification review exit conference.

(2) If the program provider submits a corrective action plan in accordance with this subsection and the plan is approved by DADS, DADS certifies the program provider. DADS evaluates the program provider's required corrective action during DADS' first review of the program provider after the corrective action completion date.

(3) If the program provider does not submit a corrective action plan in accordance with this subsection or the plan is not approved by DADS, DADS initiates termination of the program provider's program provider agreement, implements vendor hold against the program provider and, in conjunction with the local MRA, coordinates the provision of alternate services for the individuals receiving TxHmL Program services from the program provider.

(c) If DADS determines that the program provider is out of compliance with 10 percent or fewer of the certification principles at the end of the review exit conference, including any principles found out of compliance in the previous review, DADS:

(1) certifies the program provider, if the program provider:

(A) presents evidence before the end of the current certification period that it is in compliance with all principles found out of compliance in the previous review; and

(B) submits a corrective action plan in accordance with subsection (b) of this section addressing any new principles found out of compliance; or

(2) does not certify the program provider and initiates termination of the program provider's program provider agreement, if the provider does not:

(A) present evidence before the end of the current certification period that it is in compliance with all principles found out of compliance in the previous review; and

(B) submit a corrective action plan in accordance with subsection (b) of this section addressing any new principles found out of compliance.

(d) If DADS determines that the program provider is out of compliance with between 10 and 20 percent of the certification principles at the end of the review exit conference, including any principles found out of compliance in the previous review, DADS does not certify the program provider and applies Level I sanctions against the program provider.

(1) Under Level I sanctions, the program provider must complete corrective action within 30 calendar days after the review exit conference, and DADS conducts an on-site follow-up review within 30 to 45 calendar days after the review exit conference.

(2) Based on the results of the follow-up review, DADS:

(A) certifies the program provider, if DADS determines that the program provider is in compliance, by the end of the follow-up review exit conference, with the principles found out of compliance; or

(B) denies certification of and implements vendor hold against the program provider if DADS determines that the program provider is not in compliance, by the end of the follow-up review exit conference, with the principles found out of compliance.

(3) If DADS implements vendor hold against the provider, DADS conducts a second on-site follow-up review between 30 and 45 calendar days after the effective date of the vendor hold. Based on the results of the review, DADS:

(A) certifies the program provider and removes the vendor hold if DADS determines that the program provider is in compliance, by the end of the follow-up review exit conference, with the principles found out of compliance; or

(B) denies certification of the program provider and initiates termination of the program provider's program provider agreement if DADS determines that the program provider is not in compliance, by the end of the follow-up review exit conference, with the principles found out of compliance.

(e) If DADS determines that the program provider is out of compliance, at the end of the review exit conference, with 20 percent or more of the certification principles, including any principles found out of compliance in the previous review, DADS does not certify the program provider, implements vendor hold, and applies Level II sanctions against the program provider.

(1) Under Level II sanctions:

(A) the program provider must complete corrective action within 30 calendar days after the review exit conference; and

(B) DADS conducts an on-site follow-up review within 30 to 45 calendar days after the required correction date.

(2) Based on the results of the follow-up review, DADS:

(A) certifies the program provider and removes the vendor hold, if DADS determines that the program provider is in compliance, by the end of the follow-up review exit conference, with all principles found out of compliance; or

(B) denies certification of the program provider and initiates termination of the program provider's program provider agreement if DADS determines that the program provider is not in compliance, by the end of the follow-up review exit conference, with all principles found out of compliance.

(f) Notwithstanding subsections (b) - (e) of this section, if DADS determines that a hazard to the health, safety, or welfare of one or more individuals exists and the hazard is not eliminated before the end of the review exit conference, DADS denies certification of the program provider, initiates termination of the program provider agreement, implements vendor hold against the program provider, and, in conjunction with the local MRA, coordinates the provision of alternate services for individuals receiving TxHmL Program services from the program provider. A hazard to health, safety, or welfare is any condition that could result in life-threatening harm, serious injury, or death of an individual or other person within 48 hours. If hazards are identified by DADS during a review and the program provider corrects the hazards before the end of the review exit conference, the correction is designated in DADS' report of the review.

(g) Notwithstanding subsections (b) - (e) of this section, if DADS determines that a program provider's failure to comply with one or more of the certification principles is of a serious or pervasive nature, DADS may, at its discretion, take any action described in this section against the program provider. Serious or pervasive failure to comply includes but is not limited to conditions that have potentially dangerous consequences for an individual served by the program provider or conditions that affect a large percentage of individuals served by the program provider.

(h) Notwithstanding subsections (b) - (e) of this section, if DADS determines that a program provider has falsified documentation used to demonstrate compliance with this subchapter, DADS may, at its discretion, take any action described in this section against the program provider.

Comments

Source Note: The provisions of this §9.577 adopted to be effective January 5, 2003, 27 TexReg 12254; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841; amended to be effective March 1, 2007, 32 TexReg 544; amended to be effective June 1, 2008, 33 TexReg 4340

§9.578: Program Provider Certification Principles: Service Delivery

(a) A program provider must serve an eligible applicant or individual who selects the program provider unless the program provider's enrollment has reached its service capacity as identified in the Client Assignment and Registration System (CARE).

(b) The program provider must maintain a separate record for each individual enrolled with the provider. The individual's record must include:

(1) a copy of the individual's current PDP as provided by the MRA;

(2) a copy of the individual's current IPC as provided by the MRA; and

(3) a copy of the individual's current MR/RC Assessment as provided by the MRA.

(c) The program provider must:

(1) participate as a member of the service planning team, if requested by the individual or LAR;

(2) develop, in conjunction with the individual, the individual's family or LAR written support methodologies that describe actions and methods to be used to accomplish outcomes identified in the PDP; and

(3) at least 14 calendar days before the implementation date of the IPC, submit such methodologies to the service coordinator.

(d) The program provider must ensure that service provision is accomplished in accordance with the individual's PDP and the support methodologies described in subsection (c)(2) of this section.

(e) The program provider must ensure that services and supports provided to an individual assist the individual to achieve the outcomes identified in the PDP.

(f) The program provider must ensure that an individual's progress or lack of progress toward achieving the individual's identified outcomes is documented in observable, measurable terms that directly relate to the specific outcome addressed, and that such documentation is available for review by the service coordinator.

(g) The program provider must communicate to the individual's service coordinator changes needed to the individual's PDP or IPC as such changes are identified by the program provider or communicated to the program provider by the individual or LAR.

(h) The program provider must ensure that an individual who performs work for the program provider is paid at a wage level commensurate with that paid to a person without disabilities who would otherwise perform that work. The program provider must comply with local, state, and federal employment laws and regulations.

(i) The program provider must ensure that an individual provides no training, supervision, or care to another individual unless the individual is qualified and compensated in accordance with local, state and federal regulations.

(j) The program provider must ensure that an individual who produces marketable goods and services during habilitation activities is paid at a wage level commensurate with that paid to a person without disabilities who would otherwise perform that work. Compensation must be paid in accordance with local, state, and federal regulations.

(k) The program provider must offer an individual opportunities for leisure time activities, vacation periods, religious observances, holidays, and days off, consistent with the individual's choice and the routines of other members of the community.

(l) The program provider must offer an individual of retirement age opportunities to participate in activities appropriate to individuals of the same age and provide supports necessary for the individual to participate in such activities consistent with the individual's or LAR's choice and the individual's PDP.

(m) The program provider must offer an individual choices and opportunities for accessing and participating in community activities including employment opportunities and experiences available to peers without disabilities and provide supports necessary for the individual to participate in such activities consistent with an individual's or LAR's choice and the individual's PDP.

(n) The program provider must provide all TxHmL Program service components:

(1) authorized in an individual's IPC;

(2) in accordance with the applicable service component definition as specified in §9.555 of this subchapter (relating to Definitions of TxHmL Program Service Components); and

(3) in accordance with an individual's PDP.

(o) If respite is provided in a location other than an individual's family home, the location must be acceptable to the individual or LAR and provide an accessible, safe, and comfortable environment for the individual that promotes the health and welfare of the individual.

(1) Respite may be provided in the residence of another individual receiving TxHmL Program services or similar services if the program provider has obtained written approval from the individuals living in the residence or their LARs and:

(A) no more than three individuals receiving TxHmL Program services and other persons receiving similar services are provided services at any one time; or

(B) no more than four individuals receiving TxHmL Program services and other persons receiving similar services are provided services in the residence at any one time and the residence is approved in accordance with §9.188 of this chapter (relating to DADS' Approval of Residences).

(2) Respite may be provided in a respite facility if the program provider provides or intends to provide respite to more than three individuals receiving TxHmL Program services or persons receiving similar services at the same time; and

(A) the program provider has obtained written approval from the local fire authority having jurisdiction stating that the facility and its operation meet the local fire ordinances; and

(B) the program provider obtains such written approval from the local fire authority having jurisdiction on an annual basis.

(3) Respite must not be provided in an institution such as an ICF/MR, skilled nursing facility, or hospital.

Comments

Source Note: The provisions of this §9.578 adopted to be effective January 5, 2003, 27 TexReg 12254; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841; amended to be effective March 1, 2007, 32 TexReg 544

§9.579: Certification Principles: Qualified Personnel

(a) The program provider must ensure the continuous availability of trained and qualified employees and contractors to provide the service components in an individual's IPC.

(b) The program provider must comply with applicable laws and regulations to ensure that:

(1) its operations meet necessary requirements; and

(2) its employees or contractors possess legally necessary licenses, certifications, registrations, or other credentials and are in good standing with the appropriate professional agency before performing any function or delivering services.

(c) The program provider must employ or contract with a service provider of the individual's or LAR's choice if that service provider:

(1) is qualified to provide the service component;

(2) provides the service within the direct services portion of the applicable TxHmL Program rate; and

(3) contracts with or is employed by the program provider.

(d) The program provider must implement and maintain a plan for initial and periodic training of personnel that assures personnel are:

(1) trained and qualified to deliver services as required by the current needs and characteristics of the individual to whom they deliver services;

(2) knowledgeable of:

(A) acts that constitute abuse, neglect, or exploitation of an individual, as defined in Chapter 711, Subchapter A of this title (relating to Introduction);

(B) the requirement to report acts of abuse, neglect, or exploitation, or suspicion of such acts, to DFPS in accordance with §9.580(e) of this subchapter (relating to Certification Principles: Quality Assurance); and

(C) methods to prevent the occurrence of abuse, neglect, and exploitation.

(e) The program provider must implement and maintain personnel practices that safeguard an individual against infectious and communicable diseases.

(f) The program provider must prevent:

(1) conflicts of interest between program provider personnel and an individual;

(2) financial impropriety toward an individual;

(3) abuse, neglect, or exploitation of an individual; and

(4) threats of harm or danger toward an individual's possessions.

(g) The program provider must employ or contract with a person who has a minimum of three years work experience in planning and providing direct services to people with mental retardation or other developmental disabilities, as verified by a written professional reference, to oversee the provision of direct services to an individual.

(h) The program provider must ensure that the provider of community support, day habilitation, employment assistance, supported employment, or respite is at least 18 years of age and:

(1) has a high school diploma or a certificate recognized by a state as the equivalent of a high school diploma; or

(2) has documentation of a proficiency evaluation of experience and competence to perform the job tasks that includes:

(A) written competency-based assessment of the ability to document service delivery and observations of an individual to be served; and

(B) at least three personal references from persons not related by blood that indicate the ability to provide a safe, healthy environment for an individual being served.

(i) The program provider must ensure that the provider of community support, day habilitation, employment assistance, supported employment, or respite provides transportation in accordance with applicable state laws.

(j) The program provider must ensure that at least one of the following service components is provided by a person who is employed by, not contracting with, the program provider:

(1) community support;

(2) day habilitation;

(3) supported employment; or

(4) respite.

(k) The program provider must ensure that dental treatment is provided by a dentist currently licensed by the Texas State Board of Dental Examiners.

(l) The program provider must ensure that nursing is provided by a nurse who is currently licensed as a registered nurse or as a vocational nurse by the Board of Nurse Examiners for the State of Texas.

(m) The program provider must ensure that adaptive aids meet applicable standards of manufacture, design, and installation.

(n) The program provider must ensure that the provider of behavioral support is currently:

(1) licensed as a psychologist by the Texas State Board of Examiners of Psychologists;

(2) licensed as a psychological associate by the Texas State Board of Examiners of Psychologists and working under the supervision of a licensed psychologist;

(3) licensed as a psychological associate by the Texas State Board of Examiners of Psychologists or certified as a DADS-certified psychologist in accordance with §5.161 of this title (relating to TDMHMR-Certified Psychologist) and working in a public agency; or

(4) certified as a behavior analyst by the Behavior Analyst Certification Board, Inc.

(o) The program provider must ensure that minor home modifications are delivered by contractors who provide the service in accordance with state and local building codes and other applicable regulations.

(p) The program provider must ensure that a provider of specialized therapies is licensed by the appropriate State of Texas licensing authority for the specific therapeutic service provided by the provider.

(q) The program provider must comply with THSC, Chapters 250 and 253, including taking the following action regarding certain applicants, employees, and contractors:

(1) obtain criminal history record information that relates to the applicant, employee, or contractor and refrain from employing or contracting with, or immediately discharge, a person who has been convicted of an offense that bars employment under THSC, §250.006, or an offense that the program provider determines is a contraindication to the person's employment or contract with the program provider;

(2) search the Nurse Aide Registry maintained by DADS in accordance with THSC, Chapter 250, and refrain from employing or contracting with, or immediately discharge, a person who is designated in the registry as having abused, neglected, or mistreated a consumer of a facility or has misappropriated a consumer's property; and

(3) search the Employee Misconduct Registry maintained by DADS in accordance with THSC, Chapter 253, and refrain from employing or contracting with, or immediately discharge, a person who is designated in the registry as having abused, neglected, or exploited a consumer or has misappropriated a consumer's property.

Comments

Source Note: The provisions of this §9.579 adopted to be effective January 5, 2003, 27 TexReg 12254; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841; amended to be effective March 1, 2007, 32 TexReg 544

§9.580: Certification Principles: Quality Assurance

(a) The program provider must:

(1) assist the individual or LAR in understanding the requirements for participation in the TxHmL Program and include the individual or LAR in planning service provision and any changes to the plan for service provision if changes become necessary;

(2) assist and cooperate with the individual's or LAR's request to transfer to another program provider;

(3) assist the individual to access public accommodations or services available to all citizens;

(4) assist the individual to manage the individual's financial affairs upon documentation of the individual's or LAR's written request for such assistance;

(5) ensure that any restriction affecting the individual is approved by the individual's service planning team before the imposition of the restriction;

(6) inform the individual or LAR about the individual's health, mental condition, and related progress;

(7) inform the individual or LAR of the name and qualifications of any person serving the individual and the option to choose among various available service providers;

(8) provide the individual or LAR access to TxHmL Program records, including, if applicable, financial records maintained on the individual's behalf, about the individual and the delivery of services by the program provider to the individual;

(9) assist the individual to communicate by phone or by mail during the provision of TxHmL Program services unless the service planning team has agreed to limit the individual's access to communicating by phone or by mail;

(10) assist the individual, as specified in the individual's PDP, to attend religious activities as chosen by the individual or LAR;

(11) ensure the individual is free from unnecessary restraints during the provision of TxHmL Program services;

(12) regularly inform the individual or LAR about the individual's or program provider's progress or lack of progress made in the implementation of the PDP;

(13) receive and act on complaints about the program services provided by the program provider;

(14) ensure that the individual is free from abuse, neglect, or exploitation by program provider personnel;

(15) provide active, individualized assistance to the individual or LAR in exercising the individual's rights and exercising self-advocacy, including:

(A) making complaints;

(B) registering to vote;

(C) obtaining citizenship information and education;

(D) obtaining advocacy services; and

(E) obtaining information regarding legal guardianship;

(16) provide the individual privacy during treatment and care of personal needs;

(17) include the individual's LAR in decisions involving the planning and provision of TxHmL Program services;

(18) inform the individual or LAR of the process for reporting a complaint to DADS or the MRA when the program provider's resolution of a complaint is unsatisfactory to the individual or LAR, including the DADS Office of Consumer Rights and Services telephone number to initiate complaints (1-800-458-9858) or the MRA telephone number to initiate complaints;

(19) inform the individual or LAR, orally and in writing, of the requirements described in paragraphs (1) - (18) of this subsection:

(A) when the individual is enrolled in the program provider's program;

(B) if the requirements described in paragraphs (1) - (18) of this subsection are revised;

(C) at the request of the individual or LAR; and

(D) if the legal status of the individual changes;

(20) obtain an acknowledgement stating that the information described in paragraph (19) of this subsection was provided to the individual or LAR and that is signed by:

(A) the individual or LAR;

(B) the program provider staff person providing such information; and

(C) a third-party witness; and

(21) notify the individual's service coordinator of an individual's or LAR's expressed interest in CDS and document such notification.

(b) The program provider must make available all records, reports, and other information related to the delivery of TxHmL Program services as requested by DADS, other authorized agencies, or CMS and deliver such items, as requested, to a specified location.

(c) At least annually, the program provider must conduct a satisfaction survey of individuals, their families, and LARs, and take action regarding any areas of dissatisfaction.

(d) The program provider must publicize and make available a process for receiving complaints, and maintain a record of verifiable resolutions of complaints received from:

(1) individuals, their families, or LARs;

(2) the MRA;

(3) the program provider's personnel or service providers; and

(4) the general public.

(e) The program provider must ensure that:

(1) the individual and the LAR are informed of how to report allegations of abuse, neglect, or exploitation to DFPS and are provided with the DFPS toll-free telephone number (1-800-647-7418) in writing; and

(2) all program provider personnel:

(A) are instructed to report to DFPS immediately, but not later than one hour after having knowledge or suspicion, that an individual has been or is being abused, neglected, or exploited; and

(B) are provided with the DFPS toll-free telephone number (1-800-647-7418) in writing; and

(C) report suspected abuse, neglect or exploitation as instructed.

(f) Upon suspicion that an individual has been or is being abused, neglected, or exploited or notification of an allegation of abuse, neglect or exploitation, the program provider must take necessary actions to secure the safety of the alleged victim, including:

(1) obtaining immediate and on-going medical and other appropriate supports for the alleged victim, as necessary;

(2) restricting access by the alleged perpetrator of the abuse, neglect, or exploitation to the alleged victim or other individuals pending investigation of the allegation, when an alleged perpetrator is an employee or contractor of the program provider; and

(3) notifying, as soon as possible but no later than 24 hours after the program provider reports or is notified of an allegation, the alleged victim, the alleged victim's LAR, and the MRA of the allegation report and the actions that have been or will be taken.

(g) The program provider personnel must cooperate with the DFPS investigation of an allegation of abuse, neglect, or exploitation, including:

(1) providing complete access to all TxHmL Program service sites owned, operated, or controlled by the program provider;

(2) providing complete access to individuals and program provider personnel;

(3) providing access to all records pertinent to the investigation of the allegation; and

(4) preserving and protecting any evidence related to the allegation in accordance with DFPS instructions.

(h) The program provider must:

(1) report the program provider's response to the finding of a DFPS investigation of abuse, neglect, or exploitation to DADS in accordance with DADS procedures within 14 calendar days of the program provider's receipt of the investigation findings;

(2) promptly, but not later than five calendar days from the program provider's receipt of the DFPS investigation finding, notify the alleged victim or LAR of:

(A) the investigation finding;

(B) the corrective action taken by the program provider if DFPS confirms that abuse, neglect, or exploitation occurred;

(C) the process to appeal the investigation finding as described in Chapter 711, Subchapter M of this title (relating to Requesting an Appeal if You are the Reporter, Alleged Victim, Legal Guardian, or with Advocacy, Incorporated); and

(D) the process for requesting a copy of the investigative report from the program provider; and

(3) upon request of the alleged victim or LAR, provide to the alleged victim or LAR a copy of the DFPS investigative report after concealing any information that would reveal the identity of the reporter or of any individual who is not the alleged victim.

(i) If the DFPS investigation confirms that abuse, neglect, or exploitation by program provider personnel occurred, the program provider must take appropriate action to prevent the recurrence of abuse, neglect or exploitation including, when warranted, disciplinary action against or termination of the employment of program provider personnel confirmed by the DFPS investigation to have committed abuse, neglect, or exploitation.

(j) In all respite facilities, the program provider must post in a conspicuous location:

(1) the name, address, and telephone number of the program provider;

(2) the effective date of the program provider agreement; and

(3) the name of the legal entity named on the program provider agreement.

(k) At least quarterly, the program provider must review incidents of confirmed abuse, neglect, or exploitation, complaints, temporary and permanent discharges, transfers, and unusual incidents to identify program operation modifications that will prevent the recurrence of such incidents and improve service delivery.

(l) A program provider must ensure that all personal information maintained by the program provider or its contractors concerning an individual, such as lists of names, addresses, and records created or obtained by the program provider or its contractor, is kept confidential, that the use or disclosure of such information and records is limited to purposes directly connected with the administration of the TxHmL Program, and is otherwise neither directly nor indirectly used or disclosed unless the written permission of the individual to whom the information applies or the individual's LAR is obtained before the use or disclosure.

(m) The program provider must ensure that:

(1) the individual or LAR has agreed in writing to all charges assessed by the program provider against the individual's personal funds before the charges are assessed; and

(2) charges for items or services are reasonable and comparable to the costs of similar items and services generally available in the community.

(n) The program provider must not charge an individual or LAR for costs for items or services reimbursed through the TxHmL Program.

(o) At the written request of an individual or LAR, the program provider:

(1) must manage the individual's personal funds entrusted to the program provider;

(2) must not commingle the individual's personal funds with the program provider's funds; and

(3) must maintain a separate, detailed record of all deposits and expenditures for the individual.

(p) When a behavioral support plan includes techniques that involve restriction of individual rights or intrusive techniques, the program provider must ensure that the implementation of such techniques includes:

(1) approval by the individual's service planning team;

(2) written consent of the individual or LAR;

(3) verbal and written notification to the individual or LAR of the right to discontinue participation in the behavioral support plan at any time;

(4) assessment of the individual's needs and current level/severity of the behavior targeted by the plan;

(5) use of techniques appropriate to the level/severity of the behavior targeted by the plan;

(6) a written behavior support plan developed by a psychologist or behavior analyst with input from the individual, LAR, the individual's service planning team, and other professional personnel;

(7) collection and monitoring of behavioral data concerning the targeted behavior;

(8) allowance for the decrease in the use of intervention techniques based on behavioral data;

(9) allowance for revision of the behavioral support plan when the desired behavior is not displayed or techniques are not effective;

(10) consideration of the effects of the techniques in relation to the individual's physical and psychological well-being; and

(11) at least annual review by the individual's service planning team to determine the effectiveness of the program and the need to continue the techniques.

(q) The program provider must report the death of an individual to the MRA and DADS by the end of the next business day following the death of the individual or the program provider's knowledge of the death and, if the program provider reasonably believes that the individual's LAR or family does not know of the individual's death, to the individual's LAR or family as soon as possible, but not later than 24 hours after the program provider learns of the individual's death.

(r) A program provider must enter critical incident data in CARE no later than 30 days after the last day of the month being reported.

Comments

Source Note: The provisions of this §9.580 adopted to be effective January 5, 2003, 27 TexReg 12254; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841; amended to be effective March 1, 2007, 32 TexReg 544; amended to be effective June 1, 2008, 33 TexReg 4340

§9.582: Compliance with Txhml Program Principles for Mental Retardation Authorities (MRAs)

(a) An MRA participating in the TxHmL Program must be in continuous compliance with the TxHmL Program Principles for Mental Retardation Authorities as described in §9.583 of this subchapter (relating to TxHmL Program Principles for Mental Retardation Authorities).

(b) DADS conducts a compliance review at least annually of each MRA participating in the TxHmL Program.

(c) If any item of noncompliance remains uncorrected by the MRA at the time of the review exit conference, the MRA must, within 30 calendar days after the exit conference, submit to DADS a plan of correction with timelines to implement the plan after approval by DADS. DADS may take action as specified in the performance contract between the MRA and DADS if the MRA fails to submit or implement an approved plan of correction.

Comments

Source Note: The provisions of this §9.582 adopted to be effective January 5, 2003, 27 TexReg 12254; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841; amended to be effective March 1, 2007, 32 TexReg 544

§9.583: Txhml Program Principles for Mental Retardation Authorities

(a) An MRA must notify an applicant of a TxHmL Program vacancy in accordance with §9.566 of this subchapter (relating to Notification of Applicants).

(b) An MRA must process requests for enrollment in the TxHmL Program in accordance with §9.567 of this subchapter (relating to Process for Enrollment).

(c) An MRA must have a mechanism to ensure objectivity in the process to assist an individual or LAR in the selection of a program provider and a system for training all MRA staff who may assist an individual or LAR in such process.

(d) An MRA must ensure the development and completion of the initial IPC and all necessary assessments within 45 working days of the individual or LAR documenting the choice of TxHmL Program services over ICF/MR Program services in accordance with §9.566(d)(2) of this subchapter.

(e) An MRA must submit to DADS necessary documentation for an applicant's enrollment within 10 working days after the applicant's or LAR's selection of a program provider.

(f) An MRA must ensure that its employees and contractors possess legally necessary licenses, certifications, registrations, or other credentials and are in good standing with the appropriate professional agency before performing any function or delivering services.

(g) An MRA must ensure that an individual or LAR is informed orally and in writing of the following processes for filing complaints about service provision:

(1) processes for filing complaints with the MRA about the provision of service coordination; and

(2) processes for filing complaints about the provision of TxHmL Program services including:

(A) the telephone number of the MRA to file a complaint;

(B) the toll-free telephone number of DADS to file a complaint; and

(C) the toll-free telephone number of DFPS (1-800-647-7418) to file a complaint of abuse, neglect, or exploitation.

(h) An MRA must maintain for each individual:

(1) a current IPC;

(2) a current PDP;

(3) a current MR/RC Assessment; and

(4) current service information.

(i) For an individual receiving TxHmL Program services within the MRA's local service area, the MRA must provide the individual's program provider a copy of the individual's current PDP, IPC, and MR/RC Assessment.

(j) An MRA must employ service coordinators who:

(1) meet the minimum qualifications and staff training requirements specified in Chapter 2, Subchapter L of this title (relating to Service Coordination for Individuals with Mental Retardation); and

(2) have received training about the TxHmL Program, including the requirements of this subchapter and the TxHmL Program service components as specified in §9.555 of this subchapter (relating to Definitions of TxHmL Program Service Components).

(k) An MRA must ensure that a service coordinator:

(1) initiates, coordinates, and facilitates the person-directed planning process to meet the desires and needs as identified by an individual and LAR in the individual's PDP;

(2) coordinates the development and implementation of the individual's PDP;

(3) submits a correctly completed request for authorization of payment from non-TxHmL Program sources for which an individual may be eligible;

(4) coordinates and develops an individual's IPC based on the individual's PDP;

(5) coordinates and monitors the delivery of TxHmL Program and non-TxHmL Program services;

(6) integrates various aspects of services delivered under the TxHmL Program and through non-TxHmL Program sources;

(7) records each individual's progress;

(8) develops discharge and transfer plans, when necessary; and

(9) keeps records as they pertain to the implementation of an individual's PDP.

(l) An MRA must ensure that an individual or LAR is informed of the name of the individual's service coordinator and how to contact the service coordinator.

(m) A service coordinator must:

(1) assist the individual or LAR in exercising the legal rights of the individual as a citizen and as a person with a disability;

(2) assist the individual's LAR or family members to encourage the individual to exercise the individual's rights;

(3) inform the individual or LAR orally and in writing of:

(A) the eligibility criteria for participation in the TxHmL Program;

(B) the services and supports provided by the TxHmL Program and the limits of those services and supports; and

(C) the reasons an individual may be discharged from the TxHmL Program as described in §9.570 of this subchapter (relating to Permanent Discharge from the TxHmL Program);

(4) ensure that the individual and LAR participate in developing a personalized PDP and IPC that meet the individual's identified needs and service outcomes and that the individual's PDP is updated when the individual's needs or outcomes change but not less than annually;

(5) ensure that a restriction affecting the individual is approved by the individual's service planning team before the imposition of the restriction;

(6) ensure that the individual or LAR is informed of decisions regarding denial or termination of services and the individual's or LAR's right to request a fair hearing as described in §9.571 of this subchapter (relating to Fair Hearings);

(7) ensure that, if needed, the individual or LAR participates in developing a discharge plan that addresses assistance for the individual after the individual is discharged from the TxHmL Program; and

(8) inform the individual or LAR that the service coordinator will assist the individual or LAR to transfer the individual's TxHmL Program services from one program provider to another program provider as chosen by the individual or LAR.

(n) When a change to an individual's PDP or IPC occurs or is needed, the service coordinator must communicate the need for the change to the individual or LAR, the individual's program provider, and other appropriate persons as necessary.

(o) At least 30 calendar days before the expiration of an individual's IPC, the service coordinator must:

(1) update the individual's PDP in conjunction with the individual's service planning team; and

(2) submit the updated information to the program provider for completion of necessary support methodologies to be incorporated in the updated PDP.

(p) A service coordinator must:

(1) review the status of an individual who is temporarily discharged at least every 90 calendar days following the effective date of the temporary discharge and document in the individual's record the reasons for continuing the discharge; and

(2) if the temporary discharge continues 270 calendar days, submit written documentation of the 90, 180, and 270 calendar day reviews to DADS for review and approval to continue the temporary discharge status.

(q) A service coordinator must:

(1) inform the individual or LAR orally and in writing, of the requirements described in subsection (m) of this section:

(A) upon receipt of DADS approval of the enrollment of the individual;

(B) if the requirements described in subsection (m) of this section are revised;

(C) at the request of the individual or LAR; and

(D) if the legal status of the individual changes; and

(2) document that the information described in paragraph (1) of this subsection was provided to the individual or LAR.

(r) A service coordinator must, at least annually:

(1) inform the individual or LAR of the individual's right to participate in CDS and discontinue participation in CDS at any time, except as provided in §41.405(a) of this title (relating to Suspension of Participation in CDS);

(2) provide the individual or LAR a copy of Forms 1581, 1582, and 1583, which are available at http://www.dads.state.tx.us/handbooks/forms/default.asp?HB=CDS, and which contain information about CDS, including financial management services and support consultation;

(3) provide an oral explanation of the information contained in Forms 1581, 1582, and 1583 to the individual or LAR; and

(4) provide the individual or LAR the opportunity to choose to participate in CDS and document the individual's choice on Form 1584, which is available at http://www.dads.state.tx.us/handbooks/forms/default.asp?HB=CDS.

(s) If an individual or LAR chooses to participate in CDS, the service coordinator must:

(1) provide names and contact information to the individual or LAR regarding all CDSAs providing services in the MRA's local service area;

(2) document the individual's or LAR's choice of CDSA on Form 1584;

(3) document, in the individual's PDP, a description of the service components provided through CDS; and

(4) document, in the individual's PDP, a description of the individual's service back-up plan.

(t) The service coordinator must document in the individual's PDP that the information described in subsections (r) and (s)(1) of this section was provided to the individual or LAR.

(u) For an individual participating in CDS, the MRA must recommend to DADS that financial management services and support consultation, if applicable, be terminated if the service coordinator determines that:

(1) the individual's continued participation in CDS poses a significant risk to the individual's health, safety or welfare; or

(2) the individual or LAR has not complied with Chapter 41, Subchapter B of this title (relating to Responsibilities of Employers and Designated Representatives).

(v) If an MRA makes a recommendation under subsection (u) of this section, the MRA must:

(1) submit the individual's IPC to DADS electronically; and

(2) submit the following, in writing, to the Department of Aging and Disability Services, Access and Intake, Program Enrollment, P.O. Box 149030, Mail Code W-354, Austin, Texas 78714-9030:

(A) a description of the service recommended for termination;

(B) the reasons why termination is recommended;

(C) a description of the attempts to resolve the issues before recommending termination; and

(D) other supporting documentation, as appropriate.

Comments

Source Note: The provisions of this §9.583 adopted to be effective January 5, 2003, 27 TexReg 12254; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841; amended to be effective March 1, 2007, 32 TexReg 544

Subchapter Q

§9.701: Purpose

The purpose of this subchapter is to establish the process and conditions under which the Texas Department of Mental Health and Mental Retardation (TDMHMR) enters into a waiver program provider agreement with providers of home and community-based services waiver programs operated by TDMHMR, including the Home and Community-based Services (HCS), Home and Community-based Services -- OBRA (HCS-O), and the Mental Retardation Local Authority (MRLA) programs authorized by the Centers for Medicare and Medicaid Services (CMS) in accordance with §1915(c) of the Social Security Act.

Comments

Source Note: The provisions of this §9.701 adopted to be effective May 16, 1999, 24 TexReg 3519; amended to be effective June 29, 2000, 25 TexReg 6141; amended to be effective January 5, 2003, 27 TexReg 12279; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841

§9.702: Application

This subchapter applies to any person seeking to obtain a waiver program provider agreement.

Comments

Source Note: The provisions of this §9.702 adopted to be effective May 16, 1999, 24 TexReg 3519; amended to be effective June 29, 2000, 25 TexReg 6141; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841

§9.703: Definitions

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

(1) Affiliate--An employee or independent contractor of an applicant or a person with a significant financial interest in an applicant including, but not limited, to the following:

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

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

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

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

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

(2) Applicant--A person seeking to obtain a waiver program provider agreement.

(3) Assignment of a waiver program provider agreement--The transfer of rights, interests, and obligations of the waiver program provider agreement from the program provider to another person.

(4) Debarred--Termination of rights to continue an existing Medicaid provider agreement, to receive a new Medicaid provider agreement, to participate as a provider or manager of a provider agency, or to make a bid, offer, application or proposal for a TDMHMR Medicaid provider agreement or contract.

(5) Excluded--The temporary or permanent exclusion by a state or federal authority of a person from participating as a provider in a federal health care program, as defined in §1128B(f) of the Social Security Act. Exclusion includes refusal to reimburse the person for items and services furnished by that person and refusal to enter into or renew a provider agreement or the termination of the provider agreement with the person.

(6) HCSSA license--A Home and Community Support Services Agencies license issued by the Texas Department of Human Services.

(7) LAR (legally authorized representative)--A person authorized by law to act on behalf of an individual with regard to a matter described in this subchapter, and who may include a parent, guardian, or managing conservator of a child or adolescent, a guardian of an adult, or a personal representative of a deceased individual.

(8) Person--A corporation, organization, government or governmental subdivision or agency, business trust, estate, trust, partnership, association, individual, or any other legal entity.

(9) Program provider--A person who delivers waiver program services under a waiver program provider agreement.

(10) Self-assessment--The document an applicant completes to describe the procedures that will be used and the evidence that will be presented during a certification review to demonstrate the applicant's ability to comply with the program provider principles.

(11) Waiver program--A home and community-based program, operated by TDMHMR and authorized by CMS in accordance with §1915(c) of the Social Security Act, that serves people with mental retardation and related conditions. The term includes the HCS, HCS-O, and MRLA programs.

(12) Waiver program provider agreement--A written agreement between TDMHMR and a program provider that obligates the program provider to provide waiver program services.

Comments

Source Note: The provisions of this §9.703 adopted to be effective May 16, 1999, 24 TexReg 3519; amended to be effective June 29, 2000, 25 TexReg 6141; amended to be effective January 5, 2003, 27 TexReg 12279; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841

§9.704: Pre-application Orientation

An applicant must attend the waiver program provider pre-application orientation (PAO) prior to receiving a program provider application packet.

(1) TDMHMR conducts a PAO at least twice a year. The date of the PAO and registration process are published in the Texas Register at least 90 calendar days prior to the PAO.

(2) Upon an applicant's written request, TDMHMR provides the applicant with information regarding the provider application and enrollment processes and a registration form for the PAO.

(3) To attend the PAO, an applicant must submit a completed registration form to TDMHMR. The registration is valid only for the PAO announced most recently in the Texas Register . The completed registration form must be submitted no later than 30 calendar days prior to the PAO. A registration form will be considered submitted on time only under the following conditions:

(A) if mailed via the United States Postal Service, it bears a postmark bearing a date no later than 30 calendar days prior to the PAO;

(B) if sent via a common or contract carrier, a receipt by the carrier shows that it was placed in the hands of the carrier no later than 30 calendar days prior to the PAO; or

(C) if hand delivered, it is delivered directly to the Office of Medicaid Administration, TDMHMR, 909 West 45th Street, Building 4, Austin, Texas, no later than 30 calendar days prior to the PAO.

(4) If the 30th calendar day is a Saturday, Sunday, or day on which TDMHMR Central Office is closed, then the period extends through the end of the next day which is not a Saturday, Sunday, or day on which TDMHMR Central Office is closed.

(5) All portions of the registration form must be completed including, but not limited to:

(A) the name of the waiver program(s) in which the applicant seeks to participate;

(B) a list of the counties in which the applicant proposes to operate as a program provider;

(C) the legal name of the applicant and the name of the individual authorized to sign a waiver program provider agreement with TDMHMR; and

(D) the name, title/function, address, and telephone number of not more than two representatives of the applicant who attend the PAO. Each registered applicant representative must be an individual who is responsible for the direct management of the program.

(6) Only the applicant representatives named on the applicant's registration form may attend the PAO.

(7) An individual may attend the PAO as the representative of only one applicant.

Comments

Source Note: The provisions of this §9.704 adopted to be effective May 16, 1999, 24 TexReg 3519; amended to be effective June 29, 2000, 25 TexReg 6141; amended to be effective January 5, 2003, 27 TexReg 12279; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841

§9.705: Application Process

(a) An applicant must submit a separate program provider application packet for each waiver program provider agreement it seeks to obtain. Upon request, TDMHMR provides a program provider application packet to an applicant representative on the day the applicant representative completes the PAO.

(b) An applicant must complete all portions of the application packet and submit all documentation to TDMHMR in accordance with TDMHMR's instructions.

(c) A completed program provider application packet must be submitted to TDMHMR no later than 45 calendar days following the PAO. The application packet must be submitted in accordance with TDMHMR's instructions. An application packet will be considered submitted on time only under the following conditions:

(1) if mailed via the United States Postal Service, it bears a postmark bearing a date no later than 45 calendar days following the PAO;

(2) if sent via a common or contract carrier, a receipt by the carrier shows that it was placed in the hands of the carrier on a date no later than 45 calendar days following the PAO; or

(3) if hand delivered, it is delivered directly to the Office of Medicaid Administration, TDMHMR, 909 West 45th Street, Building 4, Austin, Texas, no later than 45 calendar days following the PAO.

(d) If the 45th day is a Saturday, Sunday, or day on which TDMHMR Central Office is closed, then the period extends through the end of the next day which is not a Saturday, Sunday, or day on which TDMHMR Central Office is closed.

(e) TDMHMR may reject a program provider application packet:

(1) if the application packet does not include all of the documentation required by TDMHMR's instructions;

(2) if the application packet contains a self-assessment that is not completed according to TDMHMR's instructions in every respect;

(3) if the application packet contains a self-assessment that demonstrates less than 90% compliance with the program provider principles, as determined by TDMHMR;

(4) if the application packet contains documentation required by TDMHMR's instructions, other than the self-assessment, having more than five errors, as determined by TDMHMR;

(5) if the application packet is received by TDMHMR after the date specified in subsection (c) of this section or is not delivered according to TDMHMR's instructions;

(6) if the application packet contains false information;

(7) if the application packet does not contain original signatures and dates; or

(8) for good cause, which includes, but is not limited to:

(A) TDMHMR has previously terminated a Medicaid provider agreement or other contract with the applicant or its affiliate within the last three years prior to the application;

(B) the applicant or its affiliate has been excluded or debarred;

(C) another state or federal agency has terminated a contract, licensure, or certification of the applicant or its affiliate within the last three years prior to the application date;

(D) the applicant or its affiliate has an outstanding Medicaid program audit exception or other unresolved financial liability owed to the State of Texas;

(E) the applicant or its affiliate is ineligible to enroll as a Medicaid provider for reasons relating to criminal history records as set forth in TDMHMR rules; or

(F) the applicant or its affiliate has terminated a provider agreement in a federal health care program, as defined in §1128B(f) of the Social Security Act, while an adverse action or sanction was in effect.

(f) After the application due date, TDMHMR reviews all application packets and provides written notification to each applicant advising whether its application is approved or rejected.

(1) If an application is approved, TDMHMR informs the applicant of the date and time of the next orientation for waiver program providers.

(2) If an application is rejected and the applicant wants to become a program provider, the applicant must repeat the application process described in this subchapter, including having an applicant representative attend a PAO.

Comments

Source Note: The provisions of this §9.705 adopted to be effective May 16, 1999, 24 TexReg 3519; amended to be effective June 29, 2000, 25 TexReg 6141; amended to be effective January 5, 2003, 27 TexReg 12279; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841

§9.706: Provisional Certification

(a) An applicant whose application packet is approved by TDMHMR must attend the orientation for waiver program providers conducted by TDMHMR prior to being provisionally certified.

(b) Admittance to the orientation for waiver program providers is limited to three representatives for each applicant.

(1) At least one representative must be the individual who is directly responsible for the administration of the program.

(2) At least one representative must be the applicant's employee or contractor who manages and oversees the provision of direct services to consumers who are enrolled in the program and who has provided TDMHMR with a resume or curriculum vita meeting the requirements described in §419.705(b)(1)(B) of this title (relating to Application Process).

(3) A representative may attend on behalf of only one applicant.

(c) TDMHMR provisionally certifies only those applicants that:

(1) demonstrate 100% compliance with the program provider principles on the self-assessment by the end of the orientation for waiver program providers and complete the entire orientation for waiver program providers; and

(2) comply with all requirements of §419.704 of this title (relating to Pre-application Orientation), §419.705 of this title (relating to Application Process), and this section.

(d) TDMHMR revokes the provisional certification of a provider that does not submit a copy of its HCSSA license in accordance with §419.707(a) of this title (relating to Waiver Program Provider Agreement).

(e) An applicant that is not provisionally certified in accordance with subsection (c) of this section or a program provider whose provisional certification has been revoked must re-apply to obtain a waiver program provider agreement in accordance with this subchapter.

Comments

Source Note: The provisions of this §9.706 adopted to be effective May 16, 1999, 24 TexReg 3519; amended to be effective June 29, 2000, 25 TexReg 6141; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841

§9.707: Waiver Program Provider Agreement

(a) TDMHMR enters into a waiver program provider agreement only with a provisionally certified provider who has submitted a copy of its current HCSSA license to TDMHMR no later than 270 calendar days following the provisional certification date. The license must be valid for a minimum of licensed home health services and personal assistance services. If the last day of the 270-day time period is a Saturday, Sunday, or day on which TDMHMR Central Office is closed, then the period extends through the end of the next day which is not a Saturday, Sunday, or day on which TDMHMR Central Office is closed.

(b) TDMHMR approves a consumer's enrollment in a program of a provisionally certified provider only after the effective date of the waiver program provider agreement as determined by TDMHMR.

Comments

Source Note: The provisions of this §9.707 adopted to be effective May 16, 1999, 24 TexReg 3519; amended to be effective June 29, 2000, 25 TexReg 6141; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841

§9.708: Provider Certification

(a) No later than 120 calendar days following TDMHMR's approval of the enrollment of the first consumer in a provisionally certified provider's program, TDMHMR or its designee conducts a certification review in accordance with Chapter 419, Subchapter D (relating to Home and Community-based Services (HCS)), Chapter 419, Subchapter P (relating to Home and Community-based Services -- OBRA (HCS-O) Program), or Chapter 409, Subchapter L (relating to Mental Retardation Local Authority (MRLA) Program), as applicable.

(b) TDMHMR may terminate the waiver program provider agreement of a provisionally certified provider that is not certified within 540 calendar days following the effective date of the waiver program provider agreement.

(c) A program provider whose waiver program provider agreement has been terminated in accordance with subsection (b) of this section and who wants to become a program provider again must repeat the application process described in this subchapter, including having an applicant representative attend a PAO.

Comments

Source Note: The provisions of this §9.708 adopted to be effective May 16, 1999, 24 TexReg 3519; amended to be effective June 29, 2000, 25 TexReg 6141; amended to be effective January 5, 2003, 27 TexReg 12279; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841

§9.709: Additional Provider Certification

(a) TDMHMR may provisionally certify as an HCS provider a provisionally certified MRLA or HCS-O provider.

(b) TDMHMR may certify as an HCS provider a certified MRLA or HCS-O provider.

(c) Upon request of an MRA, TDMHMR may provisionally certify the MRA as a Texas Home Living (TxHmL) Program provider.

(d) Upon request of a provisionally certified HCS program provider, TDMHMR may provisionally certify an HCS program provider as a TxHmL provider.

(e) Upon request of a certified HCS program provider, TDMHMR may certify an HCS program provider as a TxHmL provider.

(f) Corrective actions or sanctions pending at the time of certification or provisional certification under subsection (a) or (b) of this section will remain in effect until resolved. If not resolved, TDMHMR may impose sanctions in accordance with §409.537 of this title (related to Sanctions).

(g) TDMHMR may deny provisional certification or certification for good cause, which includes but is not limited to corrective actions or sanctions that are pending against the HCS, HCS-O, or MRLA provider.

Comments

Source Note: The provisions of this §9.709 adopted to be effective August 20, 2000, 25 TexReg 7717; amended to be effective January 5, 2003, 27 TexReg 12280; amended to be effective September 1, 2003, 28 TexReg 6890; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841

§9.710: Waiver Program Provider Agreement Assignment

(a) No assignment of a waiver program provider agreement is effective until it is approved in writing by TDMHMR. The effective date of the assignment may not precede the date of TDMHMR's approval of the assignment.

(b) A program provider must notify TDMHMR Medicaid Administration in writing at least 30 calendar days prior to the proposed assignment of its waiver program provider agreement. This notification must include the legal name of the proposed assignee, proposed date of the assignment, and the provider vendor number. If the program provider fails to provide this notification in a timely manner, approval of the assignment may be delayed.

(c) Upon approval of the assignment, the program provider (hereafter referred to as the assignor) and the assignee, as indicated, are subject to the following provisions.

(1) The assignee must keep, perform and fulfill all of the terms, conditions and obligations that must be performed by the assignor under the waiver program provider agreement and this subchapter.

(2) The assignee is subject to all pending conditions that exist against the assignor, including but not limited to, any plan of correction, audit exception, vendor hold, or proposed termination of a waiver program provider agreement.

(3) The assignor and the assignee are jointly and severally liable to TDMHMR for any liabilities or obligations that arise from any act, event, or condition which occurred or existed prior to the effective date of the assignment and which is identified in any survey, review, or audit conducted by TDMHMR.

(4) The assignor must complete and submit billing claims to TDMHMR for services provided prior to the approval date of the assignment in accordance with state rules.

(5) The assignee must complete the enrollment/transfer process within 95 calendar days of the effective date of the assignment if any consumer requests to transfer into or from the assignor's program or any initial enrollments into the assignor's program are pending as of the effective date of the assignment.

(6) The assignor must give written notification to each consumer or the consumer's LAR in the assignor's program of the proposed assignment, the proposed effective date of the assignment and of the consumer's option to transfer to another program provider.

(7) The assignee must retain written documentation signed by each consumer or the consumer's LAR verifying that the notification was received and indicates the consumer's or LAR's choice whether to receive services from the assignee after the assignment is effective or to transfer to another program provider.

(d) Except as provided by subsection (e) of this section, TDMHMR does not approve an assignment unless:

(1) the proposed assignee holds a current waiver program provider agreement with TDMHMR or is eligible to enter into a provider agreement with TDMHMR as specified in §419.707(a) of this title (relating to Waiver Program Provider Agreement);

(2) consumers are enrolled and receiving services or individuals are pending enrollment (as indicated by the TDMHMR Automated Enrollment and Billing System) in the assignor's program; and

(3) the assignor and the proposed assignee submit an assignment agreement to TDMHMR that includes:

(A) a statement that the assignor and assignee agree to the provisions set forth in subsection (c) of this section;

(B) the effective date of the assignment, the name and address of the assignor and assignee and the provider vendor number to be assigned;

(C) a statement that the assignment is subject to and contingent upon TDMHMR's written approval of the assignment or the assignment is void;

(D) the signatures of the authorized representatives of the assignor and the assignee acknowledged before a notary public;

(E) a blank space for TDMHMR's representative to sign indicating approval of the assignment agreement; and

(F) any other provision required by law to make the assignment agreement legally enforceable.

(e) If the proposed assignment is part of a plan approved by TDMHMR to redesign the public provider service system, the proposed assignee is not subject to the provisions in subsection (d)(1) of this section.

(f) TDMHMR may disapprove an assignment for good cause including, but not limited to:

(1) a vendor hold on Medicaid payments is currently in effect for a program operated by the proposed assignee; or

(2) a proposed contract/provider agreement termination is in effect for a program operated by the proposed assignee.

(g) On the date TDMHMR receives notice of a proposed assignment in accordance with subsection (b) of this section, TDMHMR may place a vendor hold on Medicaid payments to the assignor until all findings made from a survey, billing and payment review or audit which has been or is being conducted by TDMHMR are resolved.

(1) At its discretion, TDMHMR may allow an assignor to obtain a surety bond or an irrevocable letter of credit in order to release the vendor hold prior to completing a survey, billing and payment review, or audit.

(2) The surety bond or irrevocable letter of credit must be for a period of three years. The three-year period begins with the effective date of the assignment. TDMHMR specifies the amount of the surety bond or letter of credit.

(3) The surety bond or irrevocable letter of credit must be in a format acceptable to TDMHMR and must not include requirements for TDMHMR to:

(A) return the original bond or irrevocable letter of credit prior to receipt of payment; or

(B) submit a sight draft or any other draft or demand requirement other than TDMHMR's letter demanding payment.

(4) If the assignor submits an acceptable surety bond or irrevocable letter of credit to TDMHMR, TDMHMR releases the vendor hold.

(5) If TDMHMR does not approve the proposed assignment, the vendor hold is released.

(h) TDMHMR may recoup Medicaid payments from the assignor or assignee for liabilities or obligations arising from any act, event, or condition which occurred or existed prior to the effective date of the assignment and which is identified in a survey, review, or audit conducted by TDMHMR.

(i) If TDMHMR approves an assignment, TDMHMR or its designee conducts an on-site certification review within 120 calendar days of the effective date of the assignment in accordance with Chapter 419, Subchapter D (relating to Home and Community-based Services (HCS)), Chapter 419, Subchapter P (relating to Home and Community-based Services -- OBRA (HCS-O) Program), or Chapter 409, Subchapter L (relating to Mental Retardation Local Authority (MRLA) Program), as applicable.

Comments

Source Note: The provisions of this §9.710 adopted to be effective May 16, 1999, 24 TexReg 3519; amended to be effective June 29, 2000, 25 TexReg 6141; amended to be effective January 5, 2003, 27 TexReg 12279; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841

§9.711: References

The following rules, laws, and regulations are referenced in this subchapter.

(1) Texas Health and Safety Code, Chapter 534, Subchapter A;

(2) Social Security Act, §§1128(f) and 1915(c);

(3) Chapter 419, Subchapter D (relating to Home and Community-based Services (HCS));

(4) Chapter 419, Subchapter P (relating to Home and Community-based Services - OBRA (HCS-O) Program); and

(5) Chapter 409, Subchapter L (relating to Mental Retardation Local Authority (MRLA) Pilot Program).

Comments

Source Note: The provisions of this §9.711 adopted to be effective June 29, 2000, 25 TexReg 6141; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841

§9.712: Distribution

This subchapter shall be distributed to:

(1) members of the Texas MHMR Board;

(2) executive, management, and program staff of Central Office;

(3) chief executive officers of all Medicaid waiver program providers; and

(4) advocacy organizations.

Comments

Source Note: The provisions of this §9.712 adopted to be effective June 29, 2000, 25 TexReg 6141; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841