Proposed Rules Title 26

TITLE 26. HEALTH AND HUMAN SERVICES

PART 1. HEALTH AND HUMAN SERVICES COMMISSION

CHAPTER 260. DEAF BLIND WITH MULTIPLE DISABILITIES (DBMD) PROGRAM AND COMMUNITY FIRST CHOICE (CFC) SERVICES

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §§260.5, concerning Definitions; 260.7, concerning Description of the Deaf Blind with Multiple Disabilities (DBMD) Program and Community First Choice (CFC); 260.59, concerning Requirements for Home and Community-Based Settings; 260.203, concerning Qualifications of Program Provider Staff; 260.205, concerning Training; 260.341, concerning Employment Services; and 260.357, concerning Non-Billable Time and Activities.

BACKGROUND AND PURPOSE

The proposed amendments ensure compliance with Texas Human Resources Code §32.0755, add by House Bill 4169, 88th Legislature, Regular Session, 2023. Texas Human Resources Code §32.0755 requires HHSC to establish a service similar to prevocational services in HHSC's §1915(c) Medicaid waiver programs. The proposed amendments implement this new service, named employment readiness, in the Deaf Blind with Multiple Disabilities (DBMD) Program. The proposed amendments describe employment readiness and the requirements for the provision of employment readiness in the DBMD Program.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §260.5 adds and defines the terms, "employment readiness," "employment readiness location," and "job task-oriented" because these terms are used in the amended rules. The proposed amendment renumbers the paragraphs because of the new definitions added.

The proposed amendment to §260.7 adds employment readiness in subsection (c) to the list of services offered in the DBMD Program.

The proposed amendment to §260.59 adds a new subsection (d) to require a program provider to ensure that employment readiness is not provided in the residence of an individual or another person. The proposed amendment adds a new subsection (e) to the rule. Proposed new subsection (e)(1) requires a program provider to ensure that an employment readiness location, allows an individual to control the individual's schedule and activities, have access to the individual's food at any time, and have visitors of the individual's choosing at any time. Proposed new subsection (e)(2) requires a program provider to ensure an employment readiness location is physically accessible and free of hazards to an individual. The proposed amendment adds new subsections (f) and (g) that outline requirements for implementing a modification to a requirement in proposed new subsection (e)(1).

The proposed amendment to §260.203 adds the qualifications for a service provider of employment readiness in a new subsection (i). Specifically, the required qualifications include being at least 18 years of age; not being the parent, if the individual is under 18 years of age, or the spouse of the individual; having a high school diploma or the equivalent of a high school diploma; and having documentation of a proficiency evaluation of experience and competence to perform the job tasks as further outlined in the rule. The proposed amendment renumbers the remaining subsection after proposed new subsection (i).

The proposed amendment to §260.205 adds employment readiness in subsection (c)(1) and (3)(A); subsection (f)(1)(B) and (C); and subsection (g) to set forth the training requirements for a service provider of employment readiness. Specifically, the proposed training requirements include training and certification on cardiopulmonary resuscitation and choking prevention before assuming job duties; completion of the DBMD Program Service Provider Training as described in subsection (f)(2) of the rule; and training on the needs of an individual.

The proposed amendment to §260.341 adds new subsections (f) - (i) to provide a description of employment readiness. They prescribe what activities are required and prohibited in employment readiness, what services a program provider must provide, what a service provider may not provide, and what factors the program provider must consider related to eligibility and what documentation of eligibility the program provider must maintain, and the provision of employment readiness service to the individual must be supported by an HHSC Employment First Discovery Tool that is completed in accordance with §284.105 of this title (relating to Uniform Process).

The proposed amendment to §260.357 adds employment readiness in paragraph (8) to exclude employment readiness as a nonbillable activity for travel to and from an individual's residence.

FISCAL NOTE

Trey Wood, HHSC Chief Financial Officer, has determined that for each year of the first five years that the rules will be in effect, enforcing or administering the rules does not have foreseeable implications relating to costs or revenues of state or local governments.

GOVERNMENT GROWTH IMPACT STATEMENT

HHSC has determined that during the first five years that the rules will be in effect:

(1) the proposed rule(s) will not create or eliminate a government program;

(2) implementation of the proposed rules will not affect the number of HHSC employee positions;

(3) implementation of the proposed rules will result in no assumed change in future legislative appropriations;

(4) the proposed rules will not affect fees paid to HHSC;

(5) the proposed rules will not create a new regulation;

(6) the proposed rules will expand existing regulations;

(7) the proposed rules will not change the number of individuals subject to the rules; and

(8) the proposed rules will not affect the state's economy.

SMALL BUSINESS, MICRO-BUSINESS, AND RURAL COMMUNITY IMPACT ANALYSIS

Trey Wood, HHSC Chief Financial Officer, has also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities because any changes required by the programs to implement employment readiness services are included in providing contracted client services and the payment rate for providing services.

LOCAL EMPLOYMENT IMPACT

The proposed rules will not affect a local economy.

COSTS TO REGULATED PERSONS

Texas Government Code §2001.0045 does not apply to these rules because the rules do not impose a cost on regulated persons and are necessary to implement legislation that does not specifically state that §2001.0045 applies to the rules.

PUBLIC BENEFIT AND COSTS

Emily Zalkovsky, State Medicaid Director, has determined that for each year of the first five years the rules are in effect, individuals in the DBMD Program will benefit from having an additional service to provide assistance with getting ready for competitive employment and furthering their employment goals.

Trey Wood has also determined that for the first five years the rules are in effect, there are no anticipated economic costs to persons who are required to comply with the proposed rules because the rules do not create new regulations, standards, or processes for program providers and local intellectual and developmental disability authorities to comply. The new service, employment readiness, is included in providing contracted client services and the payment rate for providing services.

TAKINGS IMPACT ASSESSMENT

HHSC has determined that the proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under Texas Government Code §2007.043.

PUBLIC COMMENT

Written comments on the proposal may be submitted to Rules Coordination Office, P.O. Box 13247, Mail Code 4102, Austin, Texas 78711-3247, or street address 701 W. 51st Street, Austin, Texas 78751; or emailed to HHSRulesCoordinationOffice@hhs.texas.gov.

To be considered, comments must be submitted no later than 31 days after the date of this issue of the Texas Register. Comments must be (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered before 5:00 p.m. on the last working day of the comment period; or (3) emailed before midnight on the last day of the comment period. If the last day to submit comments falls on a holiday, comments must be postmarked, shipped, or emailed before midnight on the following business day to be accepted. When emailing comments, please indicate "Comments on Proposed Rule 24R046" in the subject line.

SUBCHAPTER A. DEFINITIONS, DESCRIPTION OF SERVICES, AND EXCLUDED SERVICES

26 TAC §260.5, §260.7

STATUTORY AUTHORITY

The amendments are authorized by Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies; Texas Government Code §531.033, which provides the Executive Commissioner of HHSC with broad rulemaking authority; Texas Human Resources Code §32.021, which provides HHSC with the authority to administer the federal medical assistance program in Texas and to adopt rules and standards for program administration; and Texas Human Resources Code §32.0755(f), which provides that the Executive Commissioner shall adopt rules to establish performance standards for providers providing prevocational or similar services to persons in a Medicaid waiver program.

The amendments implement Texas Human Resources Code §32.0755.

§260.5.Definitions.

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

(1) Abuse--

(A) physical abuse;

(B) sexual abuse; or

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

(A) interactions with the individual;

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

(3) Adaptive aid--A service in the Deaf Blind with Multiple Disabilities (DBMD) Program that:

(A) enables an individual to retain or increase the ability to perform ADLs or perceive, control, or communicate with the environment in which the individual lives; and

(B) meets one of the following criteria:

(i) is an item included in the list of adaptive aids in the Deaf Blind with Multiple Disabilities Program Manual; or

(ii) is the repair or maintenance of an item on the list of adaptive aids in the Deaf Blind with Multiple Disabilities Program Manual that is not covered by a warranty.

(4) Adaptive behavior--The effectiveness with or degree to which an individual meets the standards of personal independence and social responsibility expected of the individual's age and cultural group as assessed by an adaptive behavior screening assessment.

(5) Adaptive behavior level--The categorization of an individual's functioning level based on a standardized measure of adaptive behavior. There are four adaptive behavior levels ranging from mild limitations in adaptive skills (I) through profound limitations in adaptive skills (IV).

(6) Adaptive behavior screening assessment--A standardized assessment used to determine an individual's adaptive behavior level, and conducted using the current version of one of the following assessment instruments:

(A) American Association of Intellectual and Developmental Disabilities (AAIDD) Adaptive Behavior Scales (ABS);

(B) Inventory for Client and Agency Planning (ICAP);

(D) Vineland Adaptive Behavior Scales.

(7) ADLs--Activities of daily living. Basic personal everyday activities, including tasks such as eating, toileting, grooming, dressing, bathing, and transferring.

(8) Agency foster home--This term has the meaning set forth in Texas Human Resources Code §42.002.

(9) Alarm call--A signal transmitted from an individual's Community First Choice (CFC ) Emergency Response Services (ERS ) equipment to the CFC ERS response center indicating that the individual needs immediate assistance.

(10) ALF--Assisted living facility. A facility licensed in accordance with Texas Health and Safety Code Chapter 247.

(11) Alleged perpetrator--A person alleged to have committed an act of abuse, neglect, or exploitation of an individual.

(12) Audiology--A DBMD Program service that provides assessment and treatment by a licensed audiologist and includes training and consultation with an individual's family members or other support providers.

(13) Auxiliary aid--A service or device that enables an individual with impaired sensory, manual, or speaking skills to participate in the person-centered planning process. An auxiliary aid includes interpreter services, transcription services, and a text telephone.

(14) Behavior support plan--A comprehensive, individualized written plan based on a current functional behavior assessment that includes specific outcomes and behavioral techniques designed to teach or increase adaptive skills and decrease or eliminate target behaviors.

(15) Behavioral emergency--A situation in which an individual is acting in an aggressive, destructive, violent, or self-injurious manner that poses a risk of death or serious bodily harm to the individual or others.

(16) Behavioral support--A DBMD Program service that provides specialized interventions to assist an individual in increasing adaptive behaviors and replacing or modifying behaviors that prevent or interfere with the individual's inclusion in the community and consists of the following activities:

(A) conducting a functional behavior assessment;

(B) developing an individualized behavior support plan;

(C) training and consulting with an individual, family member, or other persons involved in the individual's care regarding the implementation of the behavior support plan;

(D) monitoring and evaluating the effectiveness of the behavior support plan;

(E) modifying, as necessary, the behavior support plan based on monitoring and evaluating the plan's effectiveness; and

(F) counseling and educating an individual, family members, or other persons involved in the individual's care about the techniques to use in assisting the individual to control challenging or socially unacceptable behaviors.

(17) Business day--Any day except a Saturday, a Sunday, or a national or state holiday listed in Texas Government Code §662.003(a) or (b).

(18) Calendar day--Any day, including weekends and holidays.

(19) Case management--The DBMD Program service described in §260.337 of this chapter (relating to Case Management).

(20) Case manager--A service provider of case management.

(21) CDS option--Consumer directed services option. A service delivery option defined in 40 TAC §41.103 (relating to Definitions).

(22) CFC--Community First Choice.

(23) CFC ERS--CFC emergency response services. A CFC service that provides backup systems and supports used to ensure continuity of services and supports. CFC ERS includes electronic devices and an array of available technology, personal emergency response systems, and other mobile communication devices.

(24) CFC ERS provider--The entity directly providing CFC ERS to an individual, which may be the program provider or a contractor of the program provider.

(25) CFC FMS--CFC financial management services. A CFC service provided to an individual who receives only CFC PAS/HAB through the CDS option.

(26) CFC PAS/HAB--CFC personal assistance services/habilitation. A CFC service:

(A) that consists of:

(i) personal assistance services, which provide assistance to an individual in performing ADLs and IADLs based on the individual's person-centered service plan, including:

(I) non-skilled assistance with the performance of the ADLs and IADLs;

(II) household chores necessary to maintain the home in a clean, sanitary, and safe environment;

(III) escort services, which consist of accompanying and assisting an individual to access services or activities in the community, but do not include transporting an individual; and

(IV) assistance with health-related tasks; and

(ii) habilitation, which provides assistance to an individual in acquiring, retaining, and improving self-help, socialization, and daily living skills and training the individual on ADLs, IADLs, and health-related tasks, including:

(I) self-care;

(II) personal hygiene;

(III) household tasks;

(IV) mobility;

(V) money management;

(VI) community integration, including how to get around in the community;

(VII) use of adaptive equipment;

(VIII) personal decision making;

(IX) reduction of challenging behaviors to allow individuals to accomplish ADLs, IADLs, and health-related tasks; and

(X) self-administration of medication; and

(B) does not include transporting the individual, which means driving the individual from one location to another.

(27) CFC support consultation--A CFC service that provides support consultation to an individual who receives only CFC PAS/HAB through the CDS option.

(28) CFC support management--A CFC service that provides training on how to select, manage, and dismiss an unlicensed service provider of CFC PAS/HAB.

(29) CFR--Code of Federal Regulations.

(30) Chemical restraint--A medication used to control an individual's behavior or to restrict the individual's freedom of movement that is not a standard treatment for the individual's medical or psychological condition.

(31) Chore services--A DBMD Program service, other than CFC PAS/HAB household chores, needed to maintain a clean, sanitary, and safe environment in an individual's home and consists of heavy household chores, such as washing floors, windows, and walls, securing loose rugs and tiles, and moving heavy items or furniture.

(32) CMS--The Centers for Medicare & Medicaid Services. CMS is the agency within the United States Department of Health and Human Services that administers the Medicare and Medicaid programs.

(33) Competitive employment--Employment that pays an individual at least minimum wage if the individual is not self-employed.

(34) Contract--A provisional contract that the Texas Health and Human Services Commission enters into in accordance with 40 TAC §49.208 (relating to Provisional Contract Application Approval) that has a term of no more than three years, not including any extension agreed to in accordance with 40 TAC §49.208(e) or a standard contract that HHSC enters into in accordance with 40 TAC §49.209 (relating to Standard Contract) that has a term of no more than five years, not including any extension agreed to in accordance with 40 TAC §49.209(d).

(35) Controlling person--A person who:

(A) has an ownership interest in a program provider;

(B) is an officer or director of a corporation that is a program provider;

(D) is a member or manager in a limited liability company that is a program provider;

(E) is a trustee or trust manager of a trust that is a program provider; or

(F) because of a personal, familial, or other relationship with a program provider, is in a position of actual control or authority with respect to the program provider, regardless of the person's title.

(36) Day Activity and Health Services Program--This term has the meaning set forth in Texas Human Resource Code §103.003.

(37) DBMD Program--The Deaf Blind with Multiple Disabilities Program.

(38) Deafblindness--A chronic condition in which a person:

(A) has deafness, which is a hearing impairment severe enough that most speech cannot be understood with amplification; and

(B) has legal blindness, which results from a central visual acuity of 20/200 or less in the person's better eye, with correction, or a visual field of 20 degrees or less.

(39) Denial--An action taken by HHSC that:

(A) rejects an individual's request for enrollment into the DBMD Program;

(B) disallows a DBMD Program service or a CFC service requested on an individual plan of care (IPC) that was authorized on the prior IPC; or

(C) disallows a portion of the amount or level of a DBMD Program service or a CFC service requested on an IPC that was not authorized on the prior IPC.

(40) Dental treatment--A DBMD Program service that:

(A) consists of the following:

(i) emergency dental treatments, which are procedures necessary to control bleeding, relieve pain, and eliminate acute infection; operative procedures that are required to prevent the imminent loss of teeth; and treatment of injuries to the teeth or supporting structures;

(ii) routine preventative dental treatments, which are examinations, x-rays, cleanings, sealants, oral prophylaxes, and topical fluoride applications;

(iii) therapeutic dental treatments, which include fillings, scaling, extractions, crowns, and pulp therapy for permanent and primary teeth; restoration of carious permanent and primary teeth; maintenance of space; and limited provision of removable prostheses when masticatory function is impaired, when an existing prosthesis is unserviceable, or when aesthetic considerations interfere with employment or social development;

(iv) orthodontic dental treatments, which are procedures that include treatment of retained deciduous teeth; cross-bite therapy; facial accidents involving severe traumatic deviations; cleft palates with gross malocclusion that will benefit from early treatment; and severe, handicapping malocclusions affecting permanent dentition with a minimum score of 26 as measured on the Handicapping Labio-lingual Deviation Index; and

(v) dental sedation, which is sedation necessary to perform dental treatment including non-routine anesthesia, (for example, intravenous sedation, general anesthesia, or sedative therapy prior to routine procedures) but not including administration of routine local anesthesia only; and

(B) does not include cosmetic orthodontia.

(41) Developmental disability--As defined in the Developmental Disabilities Assistance and Bill of Rights Act of 2000, Section 102(8), a severe, chronic disability of an individual five years of age or older that:

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

(B) is manifested before the individual attains 22 years of age;

(D) results in substantial functional limitations in three or more of the following areas of major life activity:

(i) self-care;

(ii) receptive and expressive language;

(iii) learning;

(iv) mobility;

(v) self-direction;

(vi) capacity for independent living; and

(vii) economic self-sufficiency.

(42) DFPS--Department of Family and Protective Services.

(43) Dietary services--A DBMD Program service that provides nutrition services, as defined in Texas Occupations Code §701.002.

(44) Employment assistance--A DBMD Program service that provides assistance to an individual to help the individual locate competitive employment in the community to the same degree of access as individuals not receiving DBMD Program services.

(45) Employment readiness--The DBMD Program service described in §260.341 of this chapter (relating to Employment Services).

(46) Employment readiness location--A location where employment readiness is provided.

(47) [~~(45)~~] Enrollment Individual Plan of Care (IPC)--The first IPC for an individual developed before the individual's enrollment into the DBMD Program.

(48) [~~(46)~~] Enrollment Individual Program Plan (IPP)--The first IPP for an individual developed before the individual's enrollment into the DBMD Program in accordance with §260.65 of this chapter (relating to Development of an Enrollment IPP).

(49) [~~(47)~~] Exploitation--The illegal or improper act or process of using, or attempting to use, an individual or the resources of an individual for monetary or personal benefit, profit, or gain.

(50) [~~(48)~~] FMS--Financial management services. A DBMD Program service that is defined in 40 TAC §41.103 and provided to an individual participating in the CDS option.

(51) [~~(49)~~] FMSA--Financial management services agency. An entity, as defined in 40 TAC §41.103, that provides FMS.

(52) [~~(50)~~] Former military member--A person who served in the United States Army, Navy, Air Force, Marine Corps, Coast Guard, or Space Force:

(A) who declared and maintained Texas as the person's state of legal residence in the manner provided by the applicable military branch while on active duty; and

(B) who was killed in action or died while in service, or whose active duty otherwise ended.

(53) [~~(51)~~] Functional behavior assessment--An evaluation that is used to determine the underlying function or purpose of an individual's behavior, so an effective behavior support plan can be developed.

(54) [~~(52)~~] Functions as a person with deafblindness--Situation in which a person is determined:

(A) to have a progressive medical condition, manifested before 22 years of age, that will result in the person having deafblindness; or

(B) before attaining 22 years of age, to have limited hearing or vision due to protracted inadequate use of either or both of these senses.

(55) [~~(53)~~] Good cause--As determined by HHSC, A reason outside the control of a CFC ERS provider that is an acceptable reason for the CFC ERS provider's failure to comply.

(56) [~~(54)~~] HCSSA--Home and community support services agency. An entity required to be licensed under Texas Health and Safety Code (THSC) Chapter 142.

(57) [~~(55)~~] Health-related tasks--Specific tasks related to the needs of an individual that can be delegated or assigned by a licensed healthcare professional under state law to be performed by a service provider of CFC PAS/HAB. These include:

(A) tasks delegated by a registered nurse (RN);

(B) health maintenance activities, as defined in 22 TAC §225.4 (relating to Definitions), that may not require delegation; and

(C) activities assigned to a service provider of CFC PAS/HAB by a licensed physical therapist, occupational therapist, or speech-language pathologist.

(58) [~~(56)~~] HHSC--The Texas Health and Human Services Commission.

(59) [~~(57)~~] Hospital--A public or private institution that is licensed or is exempt from licensure in accordance with THSC Chapters 13, 241, 261, or 552.

(60) [~~(58)~~] IADLs--Instrumental activities of daily living. Activities related to living independently in the community, including meal planning and preparation; managing finances; shopping for food, clothing, and other essential items; performing essential household chores; communicating by phone or other media; and traveling around and participating in the community.

(61) [~~(59)~~] ICF/IID--Intermediate care facility for individuals with an intellectual disability or related conditions. An ICF/IID is A facility in which ICF/IID Program services are provided and that is:

(A) licensed in accordance with THSC Chapter 252; or

(B) certified by HHSC, including a state supported living center.

(62) [~~(60)~~] ICF/IID Program--The Intermediate Care Facilities for Individuals with an Intellectual Disability or Related Conditions Program, which provides Medicaid-funded residential services to individuals with an intellectual disability or related conditions.

(63) [~~(61)~~] ID/RC Assessment--Intellectual Disability/Related Conditions Assessment. An HHSC form used to determine the LOC for an individual.

(64) [~~(62)~~] Impairment to independent functioning--An adaptive behavior level of II, III, or IV.

(65) [~~(63)~~] Individual--A person seeking to enroll or who is enrolled in the DBMD Program.

(66) [~~(64)~~] Individual transportation plan--A written plan developed by an individual's service planning team and documented on the HHSC Individual Transportation Plan form. The form is used to document how transportation as a residential habilitation activity will be delivered to support an individual's desired goals and outcomes for transportation as identified in the IPP.

(67) [~~(65)~~] Inpatient chemical dependency treatment facility--A facility licensed in accordance with THSC Chapter 464.

(68) [~~(66)~~] In person or in-person--Within the physical presence of another person. In person or in-person does not include using videoconferencing or a telephone.

(69) [~~(67)~~] Institution for mental diseases--Has the meaning set forth in 42 CFR §435.1010.

(70) [~~(68)~~] Institutional services--Medicaid-funded services provided in a nursing facility or in an ICF/IID.

(71) [~~(69)~~] Intellectual disability--Consistent with THSC §591.003, significantly sub-average general intellectual functioning that is concurrent with deficits in adaptive behavior and originates during the developmental period.

(72) [~~(70)~~] Intervener--A service provider with specialized training and skills in deafblindness who, working with one individual at a time, serves as a facilitator to involve an individual in home and community services and activities, and who is classified as an Intervener, Intervener I, Intervener II, or Intervener III in accordance with Texas Government Code §531.0973.

(73) [~~(71)~~] IPC--Individual plan of care. A written plan developed by an individual's service planning team and documented on the HHSC Individual Plan of Care form. An IPC:

(A) documents:

(i) the type and amount of each DBMD Program service and each CFC service, except for CFC support management, to be provided to the individual during an IPC year; and

(ii) if an individual will receive CFC support management; and

(B) is authorized by HHSC.

(74) [~~(72)~~] IPC period--The effective period of an enrollment IPC and a renewal IPC as follows:

(A) for an enrollment IPC, the period of time from the effective date of the enrollment IPC, as described in §260.67(a)(1)(F) of this chapter (relating to Development of a Proposed Enrollment IPC), through the last calendar day of the 11th month after the month in which enrollment occurred; and

(B) for a renewal IPC, a 12-month period of time starting on the effective date of a renewal IPC as described in §260.77(a)(1) of this chapter (relating to Renewal and Revision of an IPP and IPC).

(75) [~~(73)~~] IPP--Individual program plan. A written plan that includes the information described in §260.65(b) of this chapter (relating to Development of an Enrollment IPP) and documented on an HHSC Individual Program Plan form.

(76) Job task-oriented--Focused on developing a skill related to a specific type of employment.

(77) [~~(74)~~] LAR--Legally authorized representative. A person authorized by law to act on behalf of an individual with regard to a matter described in this chapter, including a parent, guardian, or managing conservator of a minor; a guardian of an adult; an agent appointed under a power of attorney; or a representative payee appointed by the Social Security Administration. An LAR, such as an agent appointed under a power of attorney or representative payee appointed by the Social Security Administration, may have limited authority to act on behalf of a person.

(78) [~~(75)~~] Licensed assisted living--A DBMD Program service provided by a program provider in an ALF that is owned by the program provider.

(79) [~~(76)~~] Licensed home health assisted living--A DBMD Program service provided by a program provider licensed as a HCSSA, in a residence for no more than three individuals. The residence must be owned or leased by at least one of the residents and must not be owned or leased by a program provider.

(80) [~~(77)~~] Licensed vocational nursing--A DBMD Program service that provides vocational nursing, as defined in Texas Occupations Code §301.002.

(81) [~~(78)~~] LIDDA--Local intellectual and developmental disability authority. An entity designated by the executive commissioner of HHSC, in accordance with THSC §533A.035.

(82) [~~(79)~~] LOC--Level of care. A determination given to an individual as part of the eligibility determination process based on data submitted on the ID/RC Assessment.

(83) [~~(80)~~] LVN--Licensed vocational nurse. A person licensed to provide vocational nursing in accordance with Texas Occupations Code Chapter 301.

(84) [~~(81)~~] Managed care organization--This term has the meaning set forth in Texas Government Code §536.001.

(85) [~~(82)~~] MAO Medicaid--Medical Assistance Only Medicaid. A type of Medicaid by which an individual qualifies financially for Medicaid assistance but does not receive Supplemental Security Income (SSI) benefits.

(86) [~~(83)~~] Mechanical restraint--A mechanical device, material, or equipment used to control an individual's behavior by restricting the ability of the individual to freely move part or all of the individual's body. The term does not include a protective device.

(87) [~~(84)~~] Medicaid--A program administered by CMS and funded jointly by the states and the federal government that pays for health care to eligible groups of low-income people.

(88) [~~(85)~~] Medicaid HCBS--Medicaid home and community-based services. Medicaid services provided to an individual in an individual's home and community, rather than in a facility.

(89) [~~(86)~~] Mental health facility--A facility licensed in accordance with THSC Chapter 577.

(90) [~~(87)~~] MESAV--Medicaid Eligibility Service Authorization Verification. The automated system that contains information regarding an individual's Medicaid eligibility and service authorizations.

(91) [~~(88)~~] Military family member--A person who is the spouse or child, regardless of age, of:

(A) a military member; or

(B) a former military member.

(92) [~~(89)~~] Military member--A member of the United States military serving in the Army, Navy, Air Force, Marine Corps, Coast Guard, or Space Force on active duty who has declared and maintains Texas as the member's state of legal residence in the manner provided by the applicable military branch.

(93) [~~(90)~~] Minor home modifications--A DBMD Program service that:

(A) makes a physical adaptation to an individual's residence that:

(i) is necessary to address the individual's specific needs; and

(ii) enables the individual to function with greater independence in the individual's residence or to control his or her environment; and

(B) meets one of the following criteria:

(i) is included on the list of minor home modifications in the Deaf Blind with Multiple Disabilities Program Manual; or

(ii) is the repair or maintenance of a minor home modification purchased through the DBMD Program that:

(I) is needed after one year has elapsed from the date the minor home modification is complete;

(II) is needed for a reason other than the minor home modification was intentionally damaged, as described in §260.329(c) of this chapter (relating to Repair or Replacement of a Minor Home Modification); and

(III) is not covered by a warranty.

(94) [~~(91)~~] Natural supports--Unpaid persons, including family members, volunteers, neighbors, and friends, who assist and sustain an individual.

(95) [~~(92)~~] Neglect--A negligent act or omission that caused physical or emotional injury or death to an individual or placed an individual at risk of physical or emotional injury or death.

(96) [~~(93)~~] Nursing--One or more of the following DBMD Program services:

(A) licensed vocational nursing;

(B) registered nursing;

(D) specialized registered nursing.

(97) [~~(94)~~] Nursing facility--A facility that is licensed or exempt from licensure in accordance with the THSC Chapter 242.

(98) [~~(95)~~] Occupational therapy--A DBMD Program service that provides occupational therapy, as described in Texas Occupations Code §454.006.

(99) [~~(96)~~] Orientation and mobility--A DBMD Program service that assists an individual to acquire independent travel skills that enable the individual to negotiate safely and efficiently between locations at home, school, work, and in the community.

(100) [~~(97)~~] PAS/HAB plan--Personal Assistance Services (PAS)/Habilitation Plan. A written plan developed by an individual's service planning team and documented on the HHSC Personal Assistance Services (PAS)/Habilitation Plan form that describes the type and frequency of CFC PAS/HAB activities to be performed by a service provider.

(101) [~~(98)~~] Person--A corporation, organization, government or governmental subdivision or agency, business trust, estate, trust, partnership, association, natural person, or any other legal entity that can function legally, sue or be sued, and make decisions through agents.

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

(103) [~~(100)~~] Person-centered planning process--The process described in §260.57 of this chapter (relating to Person-Centered Planning Process).

(104) [~~(101)~~] Personal leave day--A continuous 24-hour period, measured from midnight to midnight, when an individual who resides in a residence in which licensed assisted living or licensed home health assisted living is provided is absent from the residence for personal reasons.

(105) [~~(102)~~] Physical abuse--Any of the following:

(A) an act or failure to act performed knowingly, recklessly, or intentionally, including incitement to act, that caused physical injury or death to an individual or placed an individual at risk of physical injury or death;

(B) an act of inappropriate or excessive force or corporal punishment, regardless of whether the act results in a physical injury to an individual;

(D) seclusion.

(106) [~~(103)~~] Physical restraint--Any manual method used to control an individual's behavior, except for physical guidance or prompting of brief duration that an individual does not resist, that restricts:

(A) the free movement or normal functioning of all or a part of the individual's body; or

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

(107) [~~(104)~~] Physical therapy--A DBMD program service that provides physical therapy, as defined in Texas Occupations Code §453.001.

(108) [~~(105)~~] Physician--Consistent with §558.2 of this title (relating to Definitions), a person who is:

(A) licensed in Texas to practice medicine or osteopathy in accordance with Texas Occupations Code Chapter 155;

(B) licensed in Arkansas, Louisiana, New Mexico, or Oklahoma to practice medicine, who is the treating physician of an individual, and orders home health or hospice services for the individual in accordance with Texas Occupations Code §151.056(b)(4); or

(C) a commissioned or contract physician or surgeon who serves in the United States uniformed services or Public Health Service if the person is not engaged in private practice, in accordance with the Texas Occupations Code §151.052(a)(8).

(109) [~~(106)~~] Program provider--A person that has a contract with HHSC to provide DBMD Program services, excluding an FMSA.

(110) [~~(107)~~] Protective device--An item or device, such as a safety vest, lap belt, bed rail, safety padding, adaptation to furniture, or helmet, if:

(A) used only:

(i) to protect an individual from injury; or

(ii) for body positioning of the individual to ensure health and safety; and

(B) not used to modify or control behavior.

(111) [~~(108)~~] Public emergency personnel--Personnel of a sheriff's department, police department, emergency medical service, or fire department.

(112) [~~(109)~~] Reduction--An action taken by HHSC as a result of a review of a revised IPC or renewal IPC that decreases the amount or level of a service authorized by HHSC on the prior IPC.

(113) [~~(110)~~] Registered nursing--A DBMD Program service that provides professional nursing, as defined in Texas Occupations Code §301.002.

(114) [~~(111)~~] Related condition--As defined in 42 CFR §435.1010, 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 an intellectual disability because the condition results in impairment of general intellectual functioning or adaptive behavior similar to that of individuals with an intellectual disability, and requires treatment or services similar to those required for individuals with an intellectual disability;

(B) is manifested before the individual reaches 22 years of age;

(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.

(115) [~~(112)~~] Relative--A person related to another person within the fourth degree of consanguinity or within the second degree of affinity. A more detailed explanation of this term is included in the Deaf Blind with Multiple Disabilities Program Manual.

(116) [~~(113)~~] Renewal IPC--An IPC developed in accordance with §260.77 of this chapter.

(117) [~~(114)~~] Residential child-care facility--The term has the meaning set forth in Texas Human Resources Code §42.002.

(118) [~~(115)~~] Respite--A DBMD Program service described in §260.353 of this chapter (relating to Respite).

(119) [~~(116)~~] Responder--A person designated to respond to an alarm call activated by an individual.

(120) [~~(117)~~] Restraint--Any of the following:

(A) a physical restraint;

(B) a mechanical restraint; or

(121) [~~(118)~~] Restrictive intervention--An action or procedure that limits an individual's movement, access to other individuals, locations, or activities, or restricts an individual's rights, including a restraint, a protective device, and seclusion.

(122) [~~(119)~~] Revised IPC--An enrollment IPC or a renewal IPC that is revised during an IPC period in accordance with §260.77 of this chapter to add a new DBMD Program service or CFC service or change the amount of an existing service.

(123) [~~(120)~~] RN--Registered nurse. A person licensed to provide professional nursing in accordance with Texas Occupations Code Chapter 301.

(124) [~~(121)~~] Seclusion--A restrictive intervention that is the involuntary placement of an individual alone in an area from which the individual is prevented from leaving.

(125) [~~(122)~~] Service backup plan--A written plan developed and revised by an individual's service planning team in accordance with §260.213 of this chapter (relating to Service Backup Plans) to ensure continuity of critical program services if service delivery is interrupted.

(126) [~~(123)~~] Service planning team--A team consisting of:

(A) the individual;

(B) if applicable, the individual's LAR or an actively involved person;

(D) one of the following persons who is not the case manager:

(i) the program director; or

(ii) an RN designated by the program provider;

(E) other persons whose inclusion is requested by the individual, LAR, or actively involved person, including a managed care organization service coordinator, a family member, a friend, and a teacher; and

(F) other persons selected by the program provider who are:

(i) professionally qualified by certification or licensure and have special training and experience in the diagnosis and habilitation of persons with the individual's related condition; or

(ii) directly involved in the delivery of services and supports to the individual.

(127) [~~(124)~~] Service provider--A person who is an employee or contractor of a program provider who provides a DBMD Program service or a CFC service directly to an individual.

(128) [~~(125)~~] Sexual abuse--Any of the following:

(A) sexual exploitation of an individual;

(B) non-consensual or unwelcomed sexual activity with an individual; or

(C) consensual sexual activity between an individual and a service provider, staff person, volunteer, or controlling person, unless a consensual sexual relationship with an adult individual existed before the service provider, staff person, volunteer, or controlling person became a service provider, staff person, volunteer, or controlling person.

(129) [~~(126)~~] Sexual activity--An activity that is sexual in nature, including kissing, hugging, stroking, or fondling with sexual intent.

(130) [~~(127)~~] Sexual exploitation--A pattern, practice, or scheme of conduct against an individual that can reasonably be construed as being for the purposes of sexual arousal or gratification of any person:

(A) which may include sexual contact; and

(B) does not include obtaining information about an individual's sexual history within standard accepted clinical practice.

(131) [~~(128)~~] Significant subaverage general intellectual functioning--Consistent with THSC §591.003, measured intelligence on standardized general intelligence tests of two or more standard deviations (not including standard error of measurement adjustments) below the age-group mean for the tests used.

(132) [~~(129)~~] Specialized licensed vocational nursing--A DBMD Program service that provides licensed vocational nursing to an individual who has a tracheostomy or is dependent on a ventilator.

(133) [~~(130)~~] Specialized registered nursing--A DBMD Program service that provides registered nursing to an individual who has a tracheostomy or is dependent on a ventilator.

(134) [~~(131)~~] Speech-language pathology--A DBMD Program service that provides speech-language pathology as defined in Texas Occupations Code §401.001.

(135) [~~(132)~~] SSA--Social Security Administration.

(136) [~~(133)~~] SSI--Supplemental Security Income.

(137) [~~(134)~~] Staff person--A full-time or part-time employee of a program provider, other than a service provider.

(138) [~~(135)~~] State supported living center--A state-supported and structured residential facility operated by HHSC to provide to persons with an intellectual disability 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 HHSC.

(139) [~~(136)~~] Support consultation--A DBMD Program service that is defined in 40 TAC §41.103 and may be provided an individual who chooses to participate in the CDS option.

(140) [~~(137)~~] Supported employment--A DBMD Program service that provides assistance to sustain competitive employment to an individual who, because of a disability, requires intensive, ongoing support to be self-employed, work from home, or perform in a work setting at which individuals without disabilities are employed.

(141) [~~(138)~~] System check--A test of the CFC ERS equipment to determine if:

(A) the individual can successfully activate an alarm call; and

(B) the equipment is working properly.

(142) [~~(139)~~] TAC--Texas Administrative Code. A compilation of state agency rules published by the Texas State Secretary of State in accordance with Texas Government Code Chapter 2002, Subchapter C.

(143) [~~(140)~~] TAS--Transition Assistance Services. A DBMD Program service provided in accordance with Chapter 272 of this title (relating to Transition Assistance Services) to an individual who is receiving institutional services and is eligible for and enrolling into the DBMD Program.

(144) [~~(141)~~] Texas Workforce Commission--The state agency established under Texas Labor Code Chapter 301.

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

(146) [~~(143)~~] TMHP--Texas Medicaid & Healthcare Partnership. The Texas Medicaid program claims administrator.

(147) [~~(144)~~] Transfer--The movement of an individual from a DBMD Program provider or a FMSA to a different DBMD Program provider or FMSA.

(148) [~~(145)~~] Trust fund account--An account at a financial institution that contains an individual's personal funds and is under the program provider's control.

(149) [~~(146)~~] Verbal or emotional abuse--Any act or use of verbal or other communication, including gestures:

(A) to:

(i) harass, intimidate, humiliate, or degrade an individual; or

(ii) threaten an individual with physical or emotional harm; and

(B) that:

(i) results in observable distress or harm to the individual; or

(ii) is of such a serious nature that a reasonable person would consider it harmful or a cause of distress.

(150) [~~(147)~~] Videoconferencing--An interactive, two-way audio and video communication:

(A) used to conduct a meeting between two or more persons who are in different locations; and

(B) that conforms to the privacy requirements under the Health Insurance Portability and Accountability Act.

(151) [~~(148)~~] Volunteer--A person who works for a program provider without compensation, other than reimbursement for actual expenses.

§260.7.Description of the DBMD Program and CFC.

(a) The DBMD Program is a Medicaid waiver program approved by CMS and operated by HHSC pursuant to §1915(c) of the Social Security Act. It provides community-based services and supports to an eligible individual as an alternative to the ICF/IID Program. DBMD Program services are intended to:

(1) enhance the individual's integration into the community;

(2) maintain or improve the individual's independent functioning, and

(3) prevent the individual's admission to an institution.

(b) HHSC limits the enrollment in the DBMD Program to the number of individuals approved by CMS and funded by the State of Texas.

(1) adaptive aids;

(2) residential assistance, provided as:

(A) licensed assisted living; or

(B) licensed home health assisted living;

(3) behavioral support;

(4) case management;

(5) chore services;

(6) day habilitation;

(7) dental treatment;

(8) dietary services;

(9) employment assistance;

(10) employment readiness;

(11) [~~(10)~~] intervener services;

(12) [~~(11)~~] minor home modifications;

(13) [~~(12)~~] nursing;

(14) [~~(13)~~] occupational therapy;

(15) [~~(14)~~] orientation and mobility;

(16) [~~(15)~~] physical therapy;

(17) [~~(16)~~] residential habilitation;

(18) [~~(17)~~] respite, provided as:

(A) in-home respite; or

(B) out-of-home respite;

(19) [~~(18)~~] speech-language pathology;

(20) [~~(19)~~] audiology;

(21) [~~(20)~~] supported employment;

(22) [~~(21)~~] TAS; and

(23) [~~(22)~~] if the individual's IPC includes at least one DBMD Program service to be delivered through the CDS option:

(A) FMS; and

(B) support consultation.

(d) A program provider may only provide and bill for residential habilitation if the activity provided is transportation, as described in §260.343(b)(1)(A)(ii)(I) of this chapter (relating to Day Habilitation, Residential Habilitation, and CFC PAS/HAB).

(e) CFC is a state plan option governed by CFR, Title 42, Part 441, Subpart K, regarding Home and Community-Based Attendant Services and Supports State Plan Option (Community First Choice) that provides the following services to an individual:

(1) CFC PAS/HAB;

(2) CFC ERS; and

(3) CFC support management for an individual receiving CFC PAS/HAB.

(f) A program provider with a contract enrollment date on or after September 1, 2009, must serve all counties within an HHSC region.

(g) A program provider with a contract enrollment date before September 1, 2009, may continue to serve only the counties specified in its contract. If such a program provider chooses to provide services in additional counties, the program provider does not have to serve all the counties within the HHSC region.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on July 18, 2024.

TRD-202403181

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: September 1, 2024

For further information, please call: (512) 438-2910

SUBCHAPTER B. ELIGIBILITY, ENROLLMENT, AND REVIEW

DIVISION 2. ENROLLMENT PROCESS, PERSON-CENTERED PLANNING, AND REQUIREMENTS FOR SERVICE SETTINGS

26 TAC §260.59

STATUTORY AUTHORITY

The amendment is authorized by Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies; Texas Government Code §531.033, which provides the Executive Commissioner of HHSC with broad rulemaking authority; Texas Human Resources Code §32.021, which provides HHSC with the authority to administer the federal medical assistance program in Texas and to adopt rules and standards for program administration; and Texas Human Resources Code §32.0755(f), which provides that the Executive Commissioner shall adopt rules to establish performance standards for providers providing prevocational or similar services to persons in a Medicaid waiver program.

The amendment implements Texas Human Resources Code §32.0755.

§260.59.Requirements for Home and Community-Based Settings.

(a) A home and community-based setting is a setting in which an individual resides or receives DBMD Program services or CFC services. A home and community-based setting must have all of the following qualities based on the individual's strengths, preferences, and needs as documented in the individual's IPP.

(1) The setting is integrated in and supports the individual's access to the greater community to the same degree as a person not enrolled in a Medicaid waiver program, including opportunities for the individual to:

(A) seek employment and work in a competitive integrated setting;

(B) engage in community life;

(D) receive services in the community.

(2) The setting is selected by an individual from among setting options, including non-disability specific settings and an option for a private unit in a setting in which licensed assisted living is provided. The setting options are identified and documented in an individual's IPP and are based on the individual's needs, preferences, and, for settings in which licensed assisted living is provided, resources available for room and board.

(3) The setting ensures the individual's rights of privacy, dignity and respect, and freedom from coercion and restraint.

(4) The setting optimizes, not regiments, individual initiative, autonomy, and independence in making life choices, including choices regarding daily activities, physical environment, and with whom to interact.

(5) The setting facilitates individual choice regarding services and supports and the service providers who provide the services and supports.

(b) Except as provided in subsection (c) of this section, a program provider must ensure that DBMD Program services and CFC services are not provided in a setting that is presumed to have the qualities of an institution. A setting is presumed to have the qualities of an institution if the setting:

(1) is located in a building in which a certified ICF/IID operated by a LIDDA or state supported living center is located but is distinct from the ICF/IID;

(2) is located in a building on the grounds of, or immediately adjacent to, a certified ICF/IID operated by a LIDDA or state supported living center;

(3) is located in a building in which a licensed private ICF/IID, a hospital, a nursing facility, or other institution is located but is distinct from the ICF/IID, hospital, nursing facility, or other institution;

(4) is located in a building on the grounds of, or immediately adjacent to, a hospital, a nursing facility, or other institution except for a licensed private ICF/IID; or

(5) has the effect of isolating individuals from the broader community of persons not receiving Medicaid HCBS.

(c) A program provider may provide a DBMD Program service or a CFC service to an individual in a setting that is presumed to have the qualities of an institution as described in subsection (b) of this section, if CMS determines through a heightened scrutiny review that the setting:

(1) does not have the qualities of an institution; and

(2) does have the qualities of home and community-based settings.

(d) A program provider must ensure that employment readiness is not provided in the residence of an individual or another person.

(e) In addition to the requirements in subsection (a) of this section, a program provider must ensure that an employment readiness location:

(1) allows an individual to:

(A) control the individual's schedule and activities;

(B) have access to the individual's food at any time; and

(2) is physically accessible and free of hazards to an individual.

(f) If an individual's service planning team determines that the requirements in subsection (e)(1)(A) and (B) of this section must be modified, the service planning team must:

(1) revise the individual's IPP in accordance with §260.77 of this chapter (relating to Renewal and Revision of an IPP and IPC); and

(2) document on the individual's IPP:

(A) a description of the specific and individualized assessed need that justifies the modification;

(B) a description of any positive interventions and supports that have been tried but did not work;

(D) a description of the condition that is directly proportionate to the specific assessed need;

(E) a description of how data will be routinely collected and reviewed to measure the ongoing effectiveness of the modification;

(F) the established time limits for periodic reviews to determine if the modification is still necessary or can be terminated;

(G) the individual's or LAR's signature evidencing informed consent to the modification; and

(H) the program provider's assurance that the modification will cause the individual no harm.

(g) After the service planning team updates the IPP as required by subsection (f) of this section, the program provider must implement the modifications.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on July 18, 2024.

TRD-202403182

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: September 1, 2024

For further information, please call: (512) 438-2910

SUBCHAPTER D. ADDITIONAL PROGRAM PROVIDER PROVISIONS

26 TAC §260.203, §260.205

STATUTORY AUTHORITY

The amendments implement Texas Human Resources Code §32.0755.

§260.203.Qualifications of Program Provider Staff.

(a) A program provider must employ a program director who is responsible for the program provider's day-to-day operations. The program director must:

(1) have a minimum of one year of paid experience in community programs planning and providing direct services to individuals with deafness, blindness, or multiple disabilities and have a master's degree in a health and human services related field;

(2) have a minimum of two years of paid experience in community programs planning and providing direct services to individuals with deafness, blindness, or multiple disabilities, and have a bachelor's degree in a health and human services related field; or

(3) have been a program director for the DBMD Program provider on or before June 15, 2010.

(b) A program provider must ensure that a case manager:

(1) has:

(A) a bachelor's degree in a health and human services related field and a minimum of two years of experience in the delivery of direct services to individuals with disabilities;

(B) an associate degree in a health and human services related field and a minimum of four years of experience providing direct services to individuals with disabilities; or

(C) a high school diploma or certificate recognized by a state as the equivalent of a high school diploma and a minimum of six years of experience providing direct services to individuals with disabilities; and

(2) either:

(A) is fluent in the individual's preferred communication methods (American sign language, tactile symbols, communication boards, pictures, or gestures); or

(B) within six months after being assigned to an individual, becomes fluent in the individual's communication methods.

(c) For purposes of subsection (d) of this section and consistent with Texas Government Code §531.0973, "deafblind-related course work" means educational courses designed to improve a person's:

(1) knowledge of deafblindness and its effect on learning;

(2) knowledge of the role of intervention and ability to facilitate the intervention process;

(3) knowledge of areas of communication relevant to deafblindness, including methods, adaptations, and use of assistive technology, and ability to facilitate the development and use of communication skills for a person with deafblindness;

(4) knowledge of the effect that deafblindness has on a person's psychological, social, and emotional development and ability to facilitate the emotional well-being of a person with deafblindness;

(5) knowledge of and issues related to sensory systems and ability to facilitate the use of the senses;

(6) knowledge of motor skills, movement, orientation, and mobility strategies and ability to facilitate orientation and mobility skills;

(7) knowledge of the effect that additional disabilities have on a person with deafblindness and the ability to provide appropriate support; or

(8) professionalism and knowledge of ethical issues relevant to the role of an intervener.

(d) A program provider must ensure that:

(1) an intervener:

(A) is at least 18 years of age;

(B) is not:

(i) the spouse of the individual to whom the intervener is assigned; or

(ii) if the individual is under 18 years of age, a parent of the individual to whom the intervener is assigned;

(D) has at least two years of experience working with individuals with developmental disabilities; and

(E) has the ability to proficiently communicate in the functional language of the individual to whom the intervener is assigned;

(2) an intervener I:

(A) meets the requirements for an intervener described in paragraph (1) of this subsection;

(B) has at least six months of experience working with persons who have deafblindness or function as persons with deafblindness;

(C) completed at least eight semester credit hours in deafblind-related course work at a college or university accredited by:

(i) a state agency recognized by the United States Department of Education; or

(ii) a non-governmental entity recognized by the United States Department of Education; and

(D) has completed a practicum that is at least one semester credit hour in deafblind-related course work at a college or university accredited by:

(i) a state agency recognized by the United States Department of Education; or

(ii) a non-governmental entity recognized by the United States Department of Education;

(3) an intervener II:

(A) meets the requirements for an intervener I described in paragraph (2) of this subsection;

(B) has at least nine months of experience working with persons who have deafblindness or function as persons with deafblindness; and

(C) has completed at least an additional 10 semester credit hours in deafblind-related course work at a college or university accredited by:

(i) a state agency recognized by the United States Department of Education; or

(ii) a non-governmental entity recognized by the United States Department of Education; and:

(4) an intervener III:

(A) meets the requirements for an intervener II described in paragraph (3)(A) of this subsection;

(B) has at least one year of experience working with persons with deafblindness or function as persons with deafblindness; and

(C) holds an associate degree or bachelor's degree in a course of study with a focus on deafblind-related course work from a college or university accredited by:

(i) a state agency recognized by the United States Department of Education; or

(ii) a non-governmental entity recognized by the United States Department of Education.

(e) A program provider must ensure that a service provider who interacts directly with an individual is able to communicate with the individual.

(f) A program provider must ensure that a service provider of a therapy described in §260.355(a) of this chapter (relating to Therapies) is licensed by the State of Texas as described in §260.355(b) of this chapter.

(g) A program provider must ensure that a service provider of employment assistance or a service provider of supported employment:

(1) is at least 18 years of age;

(2) is not:

(A) the spouse of the individual; or

(B) a parent of the individual if the individual is under 18 years of age; and

(3) has:

(A) a bachelor's degree in rehabilitation, business, marketing, or a related human services field with six months of paid or unpaid experience providing services to people with disabilities;

(B) an associate degree in rehabilitation, business, marketing, or a related human services field with one year of paid or unpaid experience providing services to people with disabilities; or

(C) a high school diploma or a certificate recognized by a state as the equivalent of a high school diploma, with two years of paid or unpaid experience providing services to people with disabilities.

(h) Documentation of the experience required by subsection (g) of this section must include:

(1) for paid experience, a written statement from a person who paid for the service or supervised the provision of the service; and

(2) for unpaid experience, a written statement from a person who has personal knowledge of the experience.

(i) A program provider must ensure that a service provider of employment readiness:

(1) be at least 18 years of age;

(2) is not:

(A) the parent of the individual if the individual is under 18 years of age; or

(B) the spouse of the individual; and

(3) has:

(A) a high school diploma or a certificate recognized by a state as the equivalent of a high school diploma; and

(B) documentation of a proficiency evaluation of experience and competence to perform the job tasks that includes:

(i) a written competency-based assessment of the ability to document service delivery and observations of individuals receiving services; and

(ii) at least three written personal references from persons not related by blood that indicate the ability to provide a safe, healthy environment for the individuals receiving services.

(j) [~~(i)~~] A program provider must ensure that dental treatment is provided by a person licensed to practice dentistry or dental hygiene in accordance with Texas Occupations Code Chapter 256.

(k) [~~(j)~~] A program provider must ensure that a service provider not required to meet the other education or experience requirements described in this section:

(1) is 18 years of age or older;

(2) has:

(A) a high school diploma;

(B) a certificate recognized by a state as the equivalent of a high school diploma; or

(i) documentation of a proficiency evaluation of experience and competence to perform job tasks including an ability to provide the required services needed by the individual as demonstrated through a written competency-based assessment; and

(ii) at least three personal references from persons not related by blood that evidence the person's ability to provide a safe and healthy environment for the individual; and

(3) except for a service provider of chore services, either:

(A) is fluent in the communication method preferred by the individual to whom the service provider is assigned, including American sign language, tactile symbols, communication boards, pictures, and gestures; or

(B) has the ability to become fluent in the communication methods used by an individual within three months after being assigned to the individual.

(l) [~~(k)~~] A program provider must ensure that:

(1) a vehicle in which a service provider transports an individual has a valid Vehicle Identification Certificate of Inspection, in accordance with state law; and

(2) a service provider who transports an individual in a vehicle has:

(A) a current Texas driver's license; and

(B) vehicle liability insurance, in accordance with state law.

(m) [~~(l)~~] A service provider:

(1) must not be a parent of the individual to whom the service provider is providing any service, if the individual is under 18 years of age;

(2) must not be the spouse of the individual to whom the service provider is providing any service;

(3) must not be a relative or guardian of the individual to whom the service provider is providing an adaptive aid; and

(4) must not be a relative or guardian of the individual to whom the service provider is providing any of the following services, if the individual is 18 years of age or older:

(A) assisted living;

(B) case management;

(D) dental treatment;

(E) dietary services;

(F) FMS, if the individual is participating in the CDS option;

(G) occupational therapy;

(H) orientation and mobility;

(I) physical therapy;

(J) speech and language pathology;

(K) audiology; and

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

(n) [~~(m)~~] A service provider of CFC PAS/HAB must:

(1) have:

(A) a high school diploma;

(B) a certificate recognized by a state as the equivalent of a high school diploma; or

(i) a successfully completed written competency-based assessment demonstrating the service provider's ability to perform CFC PAS/HAB tasks, including an ability to perform CFC PAS/HAB tasks required for the individual to whom the service provider will provide CFC PAS/HAB; and

(ii) at least three written personal references from persons not related by blood that evidence the service provider's ability to provide a safe and healthy environment for the individual; and

(2) meet any other qualifications requested by the individual or LAR based on the individual's needs and preferences.

(o) [~~(n)~~] The program provider must maintain documentation in a service provider's employment, contract, or personal service agreement file that the service provider meets the requirements of this section.

§260.205.Training.

(a) General orientation training. A program provider must ensure that a program director and a service provider complete a general orientation curriculum before assuming job duties and annually thereafter.

(1) The general orientation curriculum must include training on:

(A) the rights of an individual;

(B) confidentiality;

(D) the DBMD Program and CFC, including the requirements of this chapter and the DBMD Program services and CFC services specified in §260.7 of this chapter (relating to Description of the DBMD Program and CFC).

(2) A program provider must document:

(A) the name of the person who received the training required by this subsection;

(B) the date the training was conducted; and

(b) Abuse, neglect, and exploitation training. A program provider must:

(1) ensure that a program director, service provider, staff person, and volunteer:

(A) are trained on and knowledgeable of:

(i) acts that constitute abuse, neglect, and exploitation;

(ii) signs and symptoms of abuse, neglect, and exploitation; and

(iii) methods to prevent abuse, neglect, and exploitation;

(B) are instructed to report an allegation of abuse, neglect, or exploitation of an individual as described in §260.219 of this subchapter (relating to Reporting Allegations of Abuse, Neglect, or Exploitation of an Individual); and

(2) conduct the activities described in paragraph (1) of this subsection:

(A) within one year after the person's most recent training on abuse, neglect, and exploitation and annually thereafter, if the program director, service provider, staff person, or volunteer was hired before July 1, 2019; or

(B) before assuming job duties and annually thereafter, if the program director, service provider, staff person, or volunteer is hired on or after July 1, 2019; and

(3) document:

(A) the name of the person who received the training required by this subsection;

(B) the date the training was conducted; and

(c) Cardiopulmonary resuscitation and choking prevention training. A program provider must ensure training on cardiopulmonary resuscitation and choking prevention in accordance with this subsection.

(1) A program provider must ensure that a program director, a case manager, an intervener, and a service provider of licensed assisted living, licensed home health assisted living, day habilitation, employment assistance, employment readiness, transportation provided as a residential habilitation activity, respite, supported employment, and CFC PAS/HAB have current certification in:

(A) cardiopulmonary resuscitation; and

(B) choking prevention.

(2) The training received to obtain the certification must include an in-person evaluation by a qualified instructor of the trainee's ability to perform the actions listed in paragraph (1) of this subsection.

(3) A program provider must ensure that:

(A) a program director, a case manager, an intervener, and a service provider of licensed assisted living, licensed home health assisted living, day habilitation, employment assistance, transportation provided as a residential habilitation activity, respite, employment readiness, and supported employment have the certification described in paragraph (1) of this subsection before assuming job duties; and

(B) a CFC PAS/HAB service provider has the certification described in paragraph (1) of this subsection:

(i) within 90 calendar days after the original effective date of this section, if the CFC PAS/HAB service provider was hired on or before the original effective date of this section; or

(ii) before assuming job duties, if the CFC PAS/HAB service provider is hired after the original effective date of this section.

(4) A program provider must maintain a copy of the certification required by paragraph (1) of this subsection. The certification must be issued by the organization granting the certification.

(d) HHSC DBMD Computer Based Training.

(1) A program provider must ensure that a program director and case manager complete the HHSC Deaf Blind with Multiple Disabilities Waiver Computer Based Training and receive a score of at least 80 percent on the examination included in the training:

(A) within 90 days after October 1, 2019, and annually thereafter, if the program director or case manager was hired before October 1, 2019; or

(B) within 90 days after assuming job duties and annually thereafter, if the program director or case manager is hired on or after October 1, 2019.

(2) A program provider must maintain a copy of the certification from the training required by this subsection, issued by HHSC, showing that the person successfully completed the training.

(e) DBMD Program Case Management Training.

(1) A program provider must ensure that a program director and case manager complete, within six months after assuming job duties, the DBMD Program Case Management Training provided by HHSC or training developed by the program provider. A program provider that develops and conducts its own training must ensure that:

(A) the training addresses the following elements from the HHSC DBMD Program Case Management Training:

(i) the DBMD Program service delivery model, which includes:

(I) the role of the case manager and DBMD Program provider;

(II) the role of the service planning team;

(III) person-centered planning; and

(IV) the CDS option;

(ii) DBMD Program services, including how these services:

(I) complement other Medicaid services;

(II) supplement family supports and non-waiver services available in the individual's community; and

(III) prevent admission to an institution;

(iii) DBMD Program process and procedures for:

(I) eligibility and enrollment;

(II) service planning, service authorization, and program plans;

(III) access to non-waiver resources; and

(IV) complaint procedures and the fair hearing process; and

(iv) rules, policies, and procedures about:

(I) prevention of abuse, neglect, and exploitation of an individual;

(II) reporting abuse, neglect, and exploitation to local and state authorities; and

(III) financial improprieties involving an individual; and

(B) the staff person who develops and conducts the training successfully completes the DBMD Program Case Management Training provided by HHSC before developing or conducting training.

(2) A program provider must:

(A) for the training required by this subsection that is provided by HHSC, maintain a copy of the certificate issued by HHSC that the person completed the training; or

(B) for the training required by this subsection that is developed and conducted by the program provider, maintain a copy of a certificate or form letter issued by the program provider that includes:

(i) the name of the person who received the training;

(ii) the date the training was conducted; and

(iii) the name of the person conducting the training.

(f) DBMD Program Service Provider Training.

(1) A program provider must ensure that:

(A) a case manager, within six months after assuming job duties, completes the DBMD Program Service Provider Training as described in paragraph (2) of this subsection;

(B) a program director, if providing intervener services, licensed assisted living, licensed home health assisted living, case management, day habilitation, employment assistance, nursing, specialized nursing, transportation provided as a residential habilitation activity, respite, supported employment, employment readiness, or CFC PAS/HAB to an individual, completes, within six months after assuming job duties, the DBMD Program Service Provider Training as described in paragraph (2) of this subsection;

(C) an intervener and a service provider of licensed assisted living, licensed home health assisted living, day habilitation, employment assistance, employment readiness, nursing, specialized nursing, transportation provided as a residential habilitation activity, respite, or supported employment, within 90 calendar days after assuming job duties, complete the DBMD Program Service Provider Training described in paragraph (2) of this subsection; and

(D) a CFC PAS/HAB service provider completes the DBMD Program Service Provider Training:

(i) within 90 days after the original effective date of this section, if the CFC PAS/HAB service provider was hired on or before the original effective date of this section; or

(ii) within 90 calendar days after assuming job duties, if the CFC PAS/HAB service provider is hired after the original effective date of this section.

(2) The DBMD Program Service Provider Training is provided by HHSC or developed by a program provider. If the training is developed by the program provider, the training must address the following elements from the HHSC DBMD Program Service Provider Training curriculum:

(A) methods and strategies for communication;

(B) active participation in home and community life;

(D) behavior as communication;

(E) causes and origins of deafblindness; and

(F) vision, hearing, and the functional implications of deafblindness.

(3) A program provider that develops and conducts its own training, as described in paragraph (2) of this subsection, must ensure that the staff person who develops and conducts the training successfully completes the DBMD Program Service Provider Training provided by HHSC before developing or conducting training.

(4) A program provider must:

(A) for the training required by this subsection that is provided by HHSC, maintain a copy of the certificate issued by HHSC that the person completed the training; or

(B) for the training required by this subsection that is developed and conducted by the program provider, maintain a copy of a certificate or form letter issued by the program provider that includes:

(i) the name of the person who received the training;

(ii) the date the training was conducted; and

(iii) the name of the person conducting the training.

(g) Training on needs of an individual.

(1) Except as provided in paragraph (3) of this subsection, a program provider must ensure an intervener and a service provider of licensed assisted living, licensed home health assisted living, day habilitation, employment assistance, transportation provided as a residential habilitation activity, respite, supported employment, employment readiness, and CFC PAS/HAB, complete training on the needs of an individual:

(A) before providing services to the individual;

(B) at least annually; and

(2) Training on the needs of an individual must include:

(A) the special needs of the individual, including the individual's:

(i) methods of communication;

(ii) specific visual and audiological loss; and

(iii) adaptive aids;

(B) managing challenging behavior, including training in:

(i) prevention of aggressive behavior; and

(ii) de-escalation techniques; and

(C) instruction in the individual's home with full participation by the individual, LAR, or other actively involved person, as appropriate, concerning the specific tasks to be performed.

(3) A program provider must ensure that a CFC PAS/HAB service provider hired before the original effective date of this section receives the training required by this subsection within 90 days after the original effective date of this section, annually thereafter, and if the individual's needs change.

(4) A program provider must document:

(A) the name of the person who received the training required by this subsection;

(B) the date the training was conducted;

(D) the topic of the training; and

(E) the name of the person who conducted the training.

(h) Training on delegated tasks.

(1) A program provider must ensure a service provider performing a delegated task is:

(A) trained to perform the delegated task in accordance with state law and rules:

(i) before providing services to an individual;

(ii) annually thereafter; and

(iii) if the individual's needs change; and

(B) supervised by a physician or nurse in accordance with state law and rules.

(2) A program provider must document:

(A) the name of the person who received the training required by this subsection;

(B) the date the training was conducted;

(D) the topic of the training; and

(E) the name of the person who conducted the training.

(i) Person-centered planning training.

(1) A program provider must ensure that:

(A) a case manager completes a comprehensive non-introductory person-centered planning training developed or approved by HHSC within six months after the case manager's date of hire; and

(B) a service provider whose duties include participating as a member of a service planning team completes HHSC's web-based Introductory Training within six months after assuming this duty.

(2) A program provider must maintain documentation that includes:

(A) for the training described in paragraph (1)(A) of this subsection:

(i) the name of the case manager who received the training;

(ii) the date the training was conducted; and

(iii) the name of the person or organization that conducted the training; and

(B) for the training described in paragraph (1)(B) of this subsection:

(i) the name of the service provider who completed the training; and

(ii) the date the service provider completed the training.

(j) Training requested for a CFC PAS/HAB service provider. If requested by an individual or LAR, a program provider must:

(1) allow the individual or LAR to:

(A) train a CFC PAS/HAB service provider in the specific assistance needed by the individual; and

(B) have the service provider perform CFC PAS/HAB in a manner that comports with the individual's personal, cultural, or religious preferences; and

(2) ensure that a CFC PAS/HAB service provider attends training by HHSC so the service provider meets any additional qualifications desired by the individual or LAR.

(k) Training on protective devices. A program provider must ensure compliance with the training and training documentation requirements described in §260.215(c)(8) and (9) of this subchapter (relating to Protective Devices).

(l) Training on restraints. A program provider must ensure compliance with the training and documentation requirements described in §260.217(d)(3) of this subchapter (relating to Restraints).

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on July 18, 2024.

TRD-202403183

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: September 1, 2024

For further information, please call: (512) 438-2910

SUBCHAPTER F. SERVICE DESCRIPTIONS AND REQUIREMENTS

DIVISION 3. REQUIREMENTS FOR OTHER DBMD PROGRAM SERVICES

26 TAC §260.341

STATUTORY AUTHORITY

The amendment implements Texas Human Resources Code §32.0755.

§260.341.Employment Services.

(a) A program provider must ensure that a service provider of employment assistance or a service provider of supported employment meets the qualifications described in §260.203(g) of this chapter (relating to Qualifications of Program Provider Staff).

(b) Before including employment assistance on an individual's IPC, a program provider must ensure and maintain documentation in the individual's record that employment assistance is not available to the individual under a program funded under §110 of the Rehabilitation Act of 1973 or under a program funded under the Individuals with Disabilities Education Act (20 U.S.C. §1401 et seq.).

(1) consists of a service provider performing the following activities:

(A) identifying an individual's employment preferences, job skills, and requirements for a work setting and work conditions;

(B) locating prospective employers offering employment compatible with an individual's identified preferences, skills, and requirements;

(D) transporting the individual to help the individual locate competitive employment in the community; and

(E) participating in service planning team meetings;

(2) is provided in accordance with the individual's IPC and with Appendix C of the DBMD waiver application approved by CMS and available on the HHSC website;

(3) is not provided to an individual with the individual present at the same time that one of the following services is provided:

(A) day habilitation;

(B) transportation provided as a residential habilitation activity;

(D) respite; or

(E) CFC PAS/HAB; and

(4) does not include using Medicaid funds paid by HHSC to a program provider for incentive payments, subsidies, or unrelated vocational training expenses, such as:

(A) paying an employer:

(i) to encourage the employer to hire an individual; or

(ii) for supervision, training, support, or adaptations for an individual that the employer typically makes available to other workers without disabilities filling similar positions in the business; or

(B) paying the individual:

(i) as an incentive to participate in employment assistance activities; or

(ii) for expenses associated with the start-up costs or operating expenses of an individual's business.

(d) Before including supported employment on an individual's IPC, a program provider must ensure and maintain documentation in the individual's record that supported employment is not available to the individual under a program funded under the Individuals with Disabilities Education Act (20 U.S.C. §1401 et seq.).

(e) A program provider must ensure that supported employment:

(1) consists of a service provider performing the following activities:

(A) making employment adaptations, supervising, and providing training related to an individual's assessed needs;

(B) transporting the individual to support the individual to be self-employed, work from home, or perform in a work setting; and

(2) is provided in accordance with the individual's IPC and with Appendix C of the DBMD waiver application approved by CMS and available on the HHSC website;

(3) is not provided to an individual with the individual present at the same time that one of the following services are provided:

(A) day habilitation;

(B) transportation provided as a residential habilitation activity;

(D) respite; or

(E) CFC PAS/HAB; and

(4) does not include:

(A) sheltered work or other similar types of vocational services furnished in specialized facilities; or

(B) using Medicaid funds paid by HHSC to a program provider for incentive payments, subsidies, or unrelated vocational training expenses, such as:

(i) paying an employer:

(I) to encourage the employer to hire an individual; or

(II) to supervise, train, support, or make adaptations for an individual that the employer typically makes available to other workers without disabilities filling similar positions in the business; or

(ii) paying the individual:

(I) as an incentive to participate in supported employment activities; or

(II) for expenses associated with the start-up costs or operating expenses of an individual's business.

(f) Employment readiness:

(1) is assistance that prepares an individual to participate in employment;

(2) provides the following person-centered activities:

(A) teaching generalized habilitative skills necessary to prepare an individual to participate in employment;

(B) training in the use of adaptive equipment necessary to obtain and retain employment skills; and

(3) is not job task-oriented;

(4) includes activities for which an individual is compensated in accordance with applicable laws and regulations;

(5) provides personal assistance for an individual who cannot manage personal care needs during employment readiness activities; and

(6) includes:

(A) transportation between an individual's place of residence and an employment readiness location;

(B) transportation from one employment readiness location to another employment readiness location; and

(g) A program provider may provide employment readiness to an individual only if the individual's service planning team does not expect the individual to be competitively employed within one year after the date employment readiness begins.

(h) A program provider may not provide employment readiness to an individual who is:

(1) receiving supported employment; or

(2) engaged in competitive employment.

(i) Before employment readiness is included on an individual's enrollment IPC, renewal IPC, or revised IPC, a program provider must ensure:

(1) an HHS Employment First Discovery Tool is completed in accordance with §284.105 of this title (relating to Uniform Process) and supports the provision of employment readiness to the individual; and

(2) documentation is maintained in the individual's record that employment readiness is not available to the individual under a program funded under the Individuals with Disabilities Education Act (20 U.S.C. §1401 et seq.).

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on July 18, 2024.

TRD-202403184

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: September 1, 2024

For further information, please call: (512) 438-2910

DIVISION 4. NON-BILLABLE TIME AND ACTIVITIES

26 TAC §260.357

STATUTORY AUTHORITY

The amendment implements Texas Human Resources Code §32.0755.

§260.357.Non-Billable Time and Activities.

A program provider must not bill for and HHSC does not reimburse for:

(1) services provided to an individual before HHSC's approval of the individual's request for enrollment in the DBMD Program;

(2) supervision of service providers unless providing delegated tasks;

(3) phone calls, text messages, emails, letters, or meetings with HHSC or community resources that do not directly address an individual's services;

(4) administrative meetings or staff meetings;

(5) in-service training, general training, continuing education, or conferences;

(6) employee conferences or evaluations;

(7) filing claims for services;

(8) traveling to and from an individual's residence, except when a service provider of day habilitation, employment readiness, transportation provided as a residential habilitation activity, or in-home respite [~~service provider~~] is transporting the individual;

(9) processing paperwork or completing records or reports;

(10) services not included on an approved IPC;

(11) services that are mutually exclusive;

(12) other services and activities not authorized, permitted, or allowed under this chapter;

(13) routine care and supervision that a family member is legally obligated to provide;

(14) activities or supervision for which a payment is made by a source other than Medicaid;

(15) room and board;

(16) any expense related to providing transportation provided as a residential habilitation activity, nursing, out-of-home respite in a camp, case management, adaptive aids, intervener services, or CFC PAS/HAB outside the program provider's contracted service delivery area, including costs for transportation or lodging;

(17) transportation provided as a residential habilitation activity, nursing, out-of-home respite in a camp, case management, adaptive aids, intervener services, or CFC PAS/HAB provided to an individual outside the program provider's contracted service delivery area if the individual has received services outside the program provider's contracted service delivery during a period of more than 60 consecutive days;

(18) two or more services provided at the same time by the same service provider; or

(19) an item or service provided to an individual at the request of the individual or LAR that is not a reimbursable item in the DBMD Program.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on July 18, 2024.

TRD-202403185

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: September 1, 2024

For further information, please call: (512) 438-2910

CHAPTER 262. TEXAS HOME LIVING (TxHmL) PROGRAM AND COMMUNITY FIRST CHOICE (CFC)

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §262.3, concerning Definitions; §262.5, concerning Description of TxHmL Program Services; §262.103, Process for Enrollment of Applicants; §262.202, concerning Requirements for Home and Community-Based Settings; §262.301, concerning IPC Requirements; §262.304, concerning Service Limits; §262.401, concerning Program Provider Reimbursement; and §262.701, concerning LIDDA Requirements for Providing Service Coordination in the TxHmL Program.

BACKGROUND AND PURPOSE

The purpose of the proposed amendments is to implement Texas Human Resources Code §32.0755, added by House Bill 4169, 88th Legislature, Regular Session, 2023. The proposed amendments implement a service similar to prevocational services named employment readiness, in the TxHmL Program, one of HHSC's §1915(c) Medicaid waiver programs.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §262.3 adds and defines the terms "group setting" in new paragraph (25) and the term "job task-oriented" in new paragraph (48) because these new terms are used in the proposed amended rules. The proposed amendment also renumbers the paragraphs in the rule.

The proposed amendment to §262.5, adds a new paragraph (21) in subsection (a), to describe employment readiness. The proposed amendment also renumbers subsection (a).

The proposed amendment to §262.103, adds employment readiness in subsection (o)(2)(A)(ii), to the array of TxHmL Program services that may require the individual's initial individual plan of care (IPC) to include a sufficient amount of registered nursing units for the program provider's registered nurse to perform a comprehensive nursing assessment.

The proposed amendment to §262.202, adds a new subsection (d)(1) and (2) to the rule. Proposed new subsection (d)(1) requires a program provider to ensure that a group setting allows an individual to control the individual's own schedule and activities, have access to the individual's food at any time, and receive visitors of the individual's choosing at any time. Proposed new subsection (d)(2) requires a program provider to ensure a group setting is physically accessible and free of hazards. The proposed amendment adds new subsections (e), (f), and (g) that outline requirements for implementing a modification to a requirement in proposed new subsection (d)(1).

The proposed amendment to §262.301 adds a new paragraph (11) in subsection (c), requiring authorization of employment readiness to be supported by an HHSC Employment First Discovery Tool and be within the service limit described in the proposed amendment to §262.304.

The proposed amendment to §262.304 adds a new paragraph (5) in subsection (a) to establish a combined service limit for employment readiness and individualized skills and socialization.

The proposed amendment to §262.401, adds employment readiness in subsection (a)(1)(A), to the array of TxHmL Program services that HHSC pays in accordance with the reimbursement rate for the service. The proposed amendment adds subsection (a)(5)(J) that states HHSC does not pay a program provider for a service or recoups any payments for employment readiness if the program provider did not ensure and maintain documentation in the individual's record that employment readiness is not available to the individual under §110 of the Rehabilitation Act of 1973 or under a program funded under the Individuals with Disabilities Education Act (20 U.S.C. §1401 et seq.). The proposed amendment also renumbers the remaining subparagraphs in paragraph (5).

The proposed amendment to §262.701 adds employment readiness in subsection (j)(6) to the array of TxHmL services that require the service coordinator to inform the individual or LAR of the consequences and risks of refusing the comprehensive nursing assessment. The proposed amendment adds a new subsection (v) which refers to proposed new §262.202(d)(1), to require a service coordinator to update an individual's person-directed plan with certain information described in paragraphs (1) - (8) if a modification to a service delivered in a group setting is needed.

FISCAL NOTE

GOVERNMENT GROWTH IMPACT STATEMENT

HHSC has determined that during the first five years that the rules will be in effect:

(1) the proposed rules will not create or eliminate a government program;

(2) implementation of the proposed rules will not affect the number of HHSC employee positions;

(3) implementation of the proposed rules will result in no assumed change in future legislative appropriations;

(4) the proposed rules will not affect fees paid to HHSC;

(5) the proposed rules will not create a new regulation;

(6) the proposed rules will expand existing regulations;

(7) the proposed rules will not change the number of individuals subject to the rules; and

(8) the proposed rules will not affect the state's economy.

SMALL BUSINESS, MICRO-BUSINESS, AND RURAL COMMUNITY IMPACT ANALYSIS

Trey Wood, HHSC Chief Financial Officer has also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities because any changes required by the programs to implement employment readiness services are included in providing contracted client services and the payment rate for providing services.

LOCAL EMPLOYMENT IMPACT

The proposed rules will not affect a local economy.

COSTS TO REGULATED PERSONS

Texas Government Code §2001.0045 does not apply to these rules because the rules do not impose a cost on regulated persons; and are necessary to implement legislation that does not specifically state that §2001.0045 applies to the rules.

PUBLIC BENEFIT AND COSTS

Emily Zalkovsky, State Medicaid Director, has determined that for each year of the first five years the rules are in effect, the individuals in the TxHmL Program will benefit from having an additional service to provide assistance with getting ready for competitive employment and furthering their employment goals.

TAKINGS IMPACT ASSESSMENT

PUBLIC COMMENT

SUBCHAPTER A. GENERAL PROVISIONS

26 TAC §262.3, §262.5

STATUTORY AUTHORITY

The amendments implement Texas Human Resources Code §32.0755.

§262.3.Definitions.

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

(1) Abuse--

(A) physical abuse;

(B) sexual abuse; or

(2) Actively involved--Significant, ongoing, and supportive involvement with an 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.

(3) ADLs--Activities of daily living. Basic personal everyday activities including tasks such as eating, toileting, grooming, dressing, bathing, and transferring.

(4) Agency foster home--This term has the meaning set forth in Texas Human Resources Code §42.002.

(5) Applicant--A Texas resident seeking services in the Texas Home Living (TxHmL) Program.

(6) Audio-only--An interactive, two-way audio communication platform that only uses sound.

(7) Auxiliary aid--A service or device that enables an individual with impaired sensory, manual, or speaking skills to participate in the person-centered planning process. An auxiliary aid includes interpreter services, transcription services, and a text telephone.

(8) Business day--Any day except a Saturday, a Sunday, or a national or state holiday listed in Texas Government Code §662.003(a) or (b).

(9) Calendar day--Any day, including weekends and holidays.

(10) CDS option--Consumer directed services option. A service delivery option as defined in 40 TAC §41.103 (relating to Definitions).

(11) CFC--Community First Choice.

(12) CFC ERS--CFC emergency response services.

(13) CFC FMS--The term used for financial management services on the individual plan of care (IPC) of an applicant or individual if the applicant will receive or the individual receives only CFC personal assistance services (PAS)/habilitation (HAB) through the CDS option.

(14) CFC support consultation--The term used for support consultation on the IPC of an applicant or individual if the applicant will receive or the individual receives only CFC PAS/HAB through the CDS option.

(15) CMS--Centers for Medicare & Medicaid Services. The federal agency within the United States Department of Health and Human Services that administers the Medicare and Medicaid programs.

(16) Competitive employment--Employment that pays an individual at least minimum wage if the individual is not self-employed.

(17) Comprehensive nursing assessment--A comprehensive physical and behavioral assessment of an individual, including the individual's health history, current health status, and current health needs, that is completed by a registered nurse (RN).

(18) Contract--A provisional contract or a standard contract.

(19) Delegated nursing task--A nursing task delegated by a registered nurse to an unlicensed person in accordance with:

(A) 22 TAC Chapter 224 (relating to Delegation of Nursing Tasks by Registered Professional Nurses to Unlicensed Personnel for Clients with Acute Conditions or in Acute Care Environments); and

(B) 22 TAC Chapter 225 (relating to RN Delegation to Unlicensed Personnel and Tasks Not Requiring Delegation in Independent Living Environments for Clients with Stable and Predictable Conditions).

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

(21) DID--Determination of intellectual disability. This term has the meaning set forth in §304.102 of this title (relating to Definitions).

(22) DID report--Determination of intellectual disability report. This term has the meaning set forth in §304.102 of this title.

(23) EVV--Electronic visit verification. This term has the meaning set forth in 1 TAC §354.4003 (relating to Definitions).

(24) Exploitation--The illegal or improper act or process of using, or attempting to use, an individual or the resources of an individual for monetary or personal benefit, profit, or gain.

(25) Group setting--A setting, other than an individual's residence, in which more than one individual or other person receives employment readiness, employment assistance, supported employment, or a similar service.

(26) [~~(25)~~] FMS--Financial management services.

(27) [~~(26)~~] FMSA--Financial management services agency. As defined in 40 TAC §41.103, an entity that provides FMS to an individual participating in the CDS option.

(28) [~~(27)~~] Former military member--A person who served in the United States Army, Navy, Air Force, Marine Corps, Coast Guard, or Space Force:

(A) who declared and maintained Texas as the person's state of legal residence in the manner provided by the applicable military branch while on active duty; and

(B) who was killed in action or died while in service, or whose active duty otherwise ended.

(29) [~~(28)~~] HCS--Home and Community-based Services. Services provided through the HCS Program operated by the Texas Health and Human Services Commission (HHSC) as authorized by CMS in accordance with §1915(c) of the Social Security Act.

(30) [~~(29)~~] Health maintenance activities--This term has the meaning set forth in 22 TAC §225.4 (relating to Definitions).

(31) [~~(30)~~] Health-related tasks--Specific tasks related to the needs of an individual, which can be delegated or assigned by a licensed health care professional under state law to be performed by a service provider of CFC PAS/HAB. This includes tasks delegated by an RN; health maintenance activities, that may not require delegation; and activities assigned to a service provider of CFC PAS/HAB by a licensed physical therapist, occupational therapist, or speech-language pathologist.

(32) [~~(31)~~] HHSC--The Texas Health and Human Services Commission.

(33) [~~(32)~~] Hospital--A public or private institution licensed or exempt from licensure in accordance with Texas Health and Safety Code (THSC) Chapters 13, 241, 261, or 552.

(34) [~~(33)~~] IADLs--Instrumental activities of daily living. Activities related to living independently in the community, including meal planning and preparation; managing finances; shopping for food, clothing, and other essential items; performing essential household chores; communicating by phone or other media; and traveling around and participating in the community.

(35) [~~(34)~~] ICAP--Inventory for Client and Agency Planning. An instrument designed to assess a person's needs, skills, and abilities.

(36) [~~(35)~~] ICF/IID--Intermediate care facility for individuals with an intellectual disability or related conditions. An ICF/IID is a facility in which ICF/IID Program services are provided and that is:

(A) licensed in accordance with THSC Chapter 252; or

(B) certified by HHSC, including a state supported living center.

(37) [~~(36)~~] ICF/IID Program--The Intermediate Care Facilities for Individuals with an Intellectual Disability or Related Conditions Program, which provides Medicaid-funded residential services to individuals with an intellectual disability or related conditions.

(38) [~~(37)~~] ID/RC Assessment--Intellectual Disability/Related Conditions Program Assessment. A form used by HHSC for level of care determination and level of need assignment.

(39) [~~(38)~~] Implementation plan--A written document developed by a program provider for an individual for each TxHmL Program service, except community support, and for each CFC service, except CFC support management, on the individual's IPC to be provided by the program provider. An implementation plan includes:

(A) a list of outcomes identified in the person-directed plan that will be addressed using TxHmL Program services and CFC 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;

(D) the number of units of TxHmL Program services and CFC services needed to complete each objective;

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

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

(40) [~~(39)~~] In person or in-person--Within the physical presence of another person who is awake. In person or in-person does not include using videoconferencing or a telephone.

(41) [~~(40)~~] Individual--A person enrolled in the TxHmL Program.

(42) [~~(41)~~] Initial IPC--The first IPC for an individual developed before the individual's enrollment into the TxHmL Program.

(43) [~~(42)~~] Inpatient chemical dependency treatment facility--A facility licensed in accordance with THSC Chapter 464, Facilities Treating Persons with a Chemical Dependency.

(44) [~~(43)~~] Intellectual disability--This term has the meaning set forth in §304.102 of this title.

(45) [~~(44)~~] IPC--Individual plan of care. A written plan that:

(A) states:

(i) the type and amount of each TxHmL Program service and each CFC service, except for CFC support management, to be provided to an individual during an IPC year;

(ii) the services and supports to be provided to the individual through resources other than TxHmL Program services or CFC services, including natural supports, medical services, and educational services; and

(iii) if an individual will receive CFC support management; and

(B) is authorized by HHSC.

(46) [~~(45)~~] IPC cost--Estimated annual cost of TxHmL Program services included on an IPC.

(47) [~~(46)~~] IPC year--The effective period of an initial IPC and renewal IPC as described in this paragraph.

(A) Except as provided in subparagraph (B) of this paragraph, the IPC year for an initial and renewal IPC is a 365-calendar day period starting on the begin date of the initial or renewal IPC.

(B) If the begin date of an initial or renewal IPC is March 1 or later in a year before a leap year or January 1 - February 28 of a leap year, the IPC year for the initial or renewal IPC is a 366-calendar day period starting on the begin date of the initial or renewal IPC.

(48) Job task-oriented--Focused on developing a skill related to a specific type of employment.

(49) [~~(47)~~] 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, including a parent, guardian, or managing conservator of a minor; a guardian of an adult; an agent appointed under a power of attorney; or a representative payee appointed by the Social Security Administration. An LAR, such as an agent appointed under a power of attorney or representative payee appointed by the Social Security Administration, may have limited authority to act on behalf of a person.

(50) [~~(48)~~] LIDDA--Local intellectual and developmental disability authority. An entity designated by the executive commissioner of HHSC, in accordance with THSC §533A.035.

(51) [~~(49)~~] LOC--Level of care. A determination given to an applicant or individual as part of the eligibility determination process based on data submitted on the ID/RC Assessment.

(52) [~~(50)~~] LON--Level of need. An assignment given by HHSC to an applicant or individual that is derived from the ICAP service level score and from selected items on the ID/RC Assessment.

(53) [~~(51)~~] Managed care organization--This term has the meaning set forth in Texas Government Code §536.001.

(54) [~~(52)~~] MAO Medicaid--Medical Assistance Only Medicaid. A type of Medicaid by which an applicant or individual qualifies financially for Medicaid assistance but does not receive Supplemental Security Income (SSI) benefits.

(55) [~~(53)~~] Medicaid HCBS--Medicaid home and community-based services. Medicaid services provided to an individual in an individual's home and community, rather than in a facility.

(56) [~~(54)~~] Mental health facility--A facility licensed in accordance with THSC Chapter 577, Private Mental Hospitals and Other Mental Health Facilities.

(57) [~~(55)~~] Military family member--A person who is the spouse or child (regardless of age) of:

(A) a military member; or

(B) a former military member.

(58) [~~(56)~~] Military member--A member of the United States military serving in the Army, Navy, Air Force, Marine Corps, Coast Guard, or Space Force on active duty who has declared and maintains Texas as the member's state of legal residence in the manner provided by the applicable military branch.

(59) [~~(57)~~] Natural supports--Unpaid persons, including family members, volunteers, neighbors, and friends, who voluntarily assist an individual to achieve the individual's identified goals.

(60) [~~(58)~~] Neglect--A negligent act or omission that caused physical or emotional injury or death to an individual or placed an individual at risk of physical or emotional injury or death.

(61) [~~(59)~~] Nursing facility--A facility licensed in accordance with THSC Chapter 242.

(62) [~~(60)~~] PDP--Person-directed plan. A plan developed with an applicant or individual and LAR using an HHSC form that:

(A) describes the supports and services necessary to achieve the desired outcomes identified by the applicant or individual and LAR and to ensure the applicant's or individual's health and safety; and

(B) includes the setting for each service, which must be selected by the individual or LAR from setting options.

(63) [~~(61)~~] Performance contract--A written agreement between HHSC and a LIDDA for the performance of delegated functions, including those described in THSC §533A.035.

(64) [~~(62)~~] Physical abuse--Any of the following:

(B) an act of inappropriate or excessive force or corporal punishment, regardless of whether the act results in a physical injury to an individual;

(D) seclusion.

(65) [~~(63)~~] Platform--This term has the meaning set forth in Texas Government Code §531.001(4-d).

(66) [~~(64)~~] Post-move monitoring visit--A visit conducted by the service coordinator in accordance with the Intellectual and Developmental Disability Preadmission Screening and Resident Review (IDD-PASRR) Handbook.

(67) [~~(65)~~] Pre-move site review--A review conducted by the service coordinator in accordance with HHSC's IDD PASRR Handbook.

(68) [~~(66)~~] Professional therapies--Services that consist of the following:

(A) audiology services;

(B) behavioral support;

(D) occupational therapy services;

(E) physical therapy services; and

(F) speech and language pathology.

(69) [~~(67)~~] Program provider--A person, as defined in 40 TAC §49.102 (relating to Definitions), that has a contract with HHSC to provide TxHmL Program services, excluding an FMSA.

(70) [~~(68)~~] Provisional contract--A contract that HHSC enters into with a program provider in accordance with 40 TAC §49.208 (relating to Provisional Contract Application Approval) that has a term of no more than three years, not including any extension agreed to in accordance with 40 TAC §49.208(e).

(71) [~~(69)~~] Related condition--A severe and chronic disability that:

(A) is attributed to:

(i) cerebral palsy or epilepsy; or

(B) is manifested before the individual reaches age 22;

(D) results in substantial functional limitation in at least three of the following areas of major life activity:

(i) self-care;

(ii) understanding and use of language;

(iii) learning;

(iv) mobility;

(v) self-direction; and

(vi) capacity for independent living.

(72) [~~(70)~~] Relative--A person related to another person within the fourth degree of consanguinity or within the second degree of affinity. A more detailed explanation of this term is included in the TxHmL Program Billing Requirements.

(73) [~~(71)~~] Renewal IPC--An IPC developed for an individual in accordance with §262.302(a) of this chapter (relating to Renewal and Revision of an Individual's IPC).

(74) [~~(72)~~] Residential child care facility--The term has the meaning set forth in Texas Human Resources Code §42.002.

(75) [~~(73)~~] Revised IPC--An IPC that is revised during an IPC year in accordance with §262.302 of this chapter to add a new TxHmL Program service or CFC service or change the amount of an existing service.

(76) [~~(74)~~] RN--Registered nurse. A person licensed to practice professional nursing in accordance with Texas Occupations Code Chapter 301.

(77) [~~(75)~~] Service backup plan--A plan that ensures continuity of a service that is critical to an individual's health and safety if service delivery is interrupted.

(78) [~~(76)~~] Service coordination--A service as defined in §331.5 of this title (relating to Definitions).

(79) [~~(77)~~] Service coordinator--An employee of a LIDDA who provides service coordination to an individual.

(80) [~~(78)~~] Service planning team--One of the following:

(A) for an applicant or individual other than one described in subparagraph (B) or (C) of this paragraph, a planning team consisting of:

(i) an applicant or individual and LAR;

(ii) the service coordinator; and

(iii) other persons chosen by the applicant, individual, or LAR, for example, a staff member of the program provider, a family member, a friend, or a teacher;

(B) for an applicant 21 years of age or older who is residing in a nursing facility and enrolling in the TxHmL Program, a planning team consisting of:

(i) the applicant and LAR;

(ii) service coordinator;

(iii) a staff member of the program provider;

(iv) providers of specialized services;

(v) a nursing facility staff person who is familiar with the applicant's needs;

(vi) other persons chosen by the applicant or LAR, for example, a family member, a friend, or a teacher; and

(vii) at the discretion of the LIDDA and with the approval of the individual or LAR, other persons who are directly involved in the delivery of services to persons with an intellectual or developmental disability; or

(C) for an individual 21 years of age or older who has enrolled in the TxHmL program from a nursing facility or ICF/IID or has enrolled in the TxHmL Program as a diversion from admission to an institution, including a nursing facility or ICF/IID, for 180 days after enrollment, a planning team consisting of:

(i) the individual and LAR;

(ii) the service coordinator;

(iii) a staff member of the program provider;

(iv) other persons chosen by the individual or LAR, for example, a family member, a friend, or a teacher; and

(v) at the discretion of the LIDDA and with the approval of the individual or LAR, other persons who are directly involved in the delivery of services to persons with an intellectual or developmental disability.

(81) [~~(79)~~] Service provider--A person, who may be a staff member, who directly provides a TxHmL Program service or CFC service to an individual.

(82) [~~(80)~~] Sexual abuse--Any of the following:

(A) sexual exploitation of an individual;

(B) non-consensual or unwelcomed sexual activity with an individual; or

(C) consensual sexual activity between an individual and a service provider, staff member, volunteer, or controlling person, unless a consensual sexual relationship with an adult individual existed before the service provider, staff member, volunteer, or controlling person became a service provider, staff member, volunteer, or controlling person.

(83) [~~(81)~~] Sexual activity--An activity that is sexual in nature, including kissing, hugging, stroking, or fondling with sexual intent.

(84) [~~(82)~~] Sexual exploitation--A pattern, practice, or scheme of conduct against an individual that can reasonably be construed as being for the purposes of sexual arousal or gratification of any person:

(A) which may include sexual contact; and

(B) does not include obtaining information about an individual's sexual history within standard accepted clinical practice.

(85) [~~(83)~~] Staff member--An employee or contractor of a TxHmL Program provider.

(86) [~~(84)~~] Standard contract--A contract that HHSC enters into with a program provider in accordance with 40 TAC §49.209 (relating to Standard Contract) that has a term of no more than five years, not including any extension agreed to in accordance 40 TAC §49.209(d).

(87) [~~(85)~~] State supported living center--A state-supported and structured residential facility operated by HHSC to provide to persons with an intellectual disability 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 HHSC.

(88) [~~(86)~~] Store and forward technology--This term has the meaning set forth in Texas Occupations Code §111.001(2).

(89) [~~(87)~~] Synchronous audio-visual--An interactive, two-way audio and video communication platform that:

(A) allows a service to be provided to an individual in real time; and

(B) conforms to the privacy requirements under the Health Insurance Portability and Accountability Act.

(90) [~~(88)~~] 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.

(91) [~~(89)~~] Telehealth service--This term has the meaning set forth in Texas Occupations Code §111.001.

(92) [~~(90)~~] Temporary Admission--A stay in a facility listed in §262.505(a) of this chapter (relating to Suspension of TxHmL Program Services and CFC Services) for 270 calendar days or less or, if an extension is granted in accordance with §262.505(h) of this chapter, a stay in such a facility for more than 270 calendar days.

(93) [~~(91)~~] THSC--Texas Health and Safety Code. Texas statute relating to health and safety.

(94) [~~(92)~~] Transfer IPC--An IPC that is developed in accordance with §262.501 of this chapter (relating to Process for Individual to Transfer to a Different Program Provider or FMSA) or §262.502 of this chapter (relating to Process for Individual to Receive a Service Through the CDS Option that the Individual is Receiving from a Program Provider) when an individual transfers to another program provider or chooses a different service delivery option.

(95) [~~(93)~~] Transition plan--A written plan developed in accordance with §303.701 of this title (relating to Transition Planning for a Designated Resident) for an applicant residing in a nursing facility who is enrolling in the TxHmL Program.

(96) [~~(94)~~] Transportation plan--A written plan based on person-directed planning and developed with an applicant or individual using HHSC Individual Transportation Plan form available on the HHSC website. A transportation plan is used to document how community support will be delivered to support an individual's desired outcomes and purposes for transportation as identified in the PDP.

(97) [~~(95)~~] TxHmL Program--The Texas Home Living Program operated by HHSC as authorized by CMS in accordance with §1915(c) of the Social Security Act. The TxHmL Program provides community-based services and supports to eligible individuals who live in their own homes or in their family homes.

(98) [~~(96)~~] Vendor hold--A temporary suspension of payments that are due to a program provider under a contract.

(99) [~~(97)~~] Verbal or emotional abuse--Any act or use of verbal or other communication, including gestures:

(A) to:

(i) harass, intimidate, humiliate, or degrade an individual; or

(ii) threaten an individual with physical or emotional harm; and

(B) that:

(i) results in observable distress or harm to the individual; or

(ii) is of such a serious nature that a reasonable person would consider it harmful or a cause of distress.

(100) [~~(98)~~] Videoconferencing--An interactive, two-way audio and video communication:

(A) used to conduct a meeting between two or more persons who are in different locations; and

(B) that conforms to the privacy requirements under the Health Insurance Portability and Accountability Act.

(101) [~~(99)~~] Volunteer--A person who works for a program provider without compensation, other than reimbursement for actual expenses.

§262.5.Description of TxHmL Program Services.

(a) TxHmL Program services are described in this section and in Appendix C of the TxHmL Program waiver application approved by CMS.

(1) Adaptive aids include devices, controls, or items that are necessary to address specific needs identified in an individual's service plan. Adaptive aids enable an individual to maintain or increase the ability to perform ADLs or the ability to perceive, control, or communicate with the environment in which the individual lives.

(2) Audiology is the provision of audiology as defined in the Texas Occupations Code Chapter 401.

(3) Speech and language pathology is the provision of speech-language pathology as defined in the Texas Occupations Code Chapter 401.

(4) Occupational therapy is the provision of occupational therapy as described in the Texas Occupations Code Chapter 454.

(5) Physical therapy is the provision of physical therapy as defined in the Texas Occupations Code Chapter 453.

(6) Dietary is the provision of nutrition services as defined in the Texas Occupations Code Chapter 701.

(7) Behavioral support is the provision of specialized interventions that:

(A) 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; and

(B) improve an individual's quality of life.

(8) Day habilitation is assistance with acquiring, retaining, or improving self-help, socialization, and adaptive skills provided in a location other than the residence of an individual. Day habilitation does not include in-home day habilitation.

(9) In-home day habilitation is assistance with acquiring, retaining, or improving self-help, socialization, and adaptive skills provided in the individual's residence.

(10) Dental treatment is:

(A) emergency dental treatment;

(B) preventive dental treatment;

(D) orthodontic dental treatment, excluding cosmetic orthodontia.

(11) Minor home modifications are physical adaptations to an individual's residence to address specific needs identified by an individual's service planning team.

(12) Licensed vocational nursing is the provision of licensed vocational nursing as defined in the Texas Occupations Code Chapter 301.

(13) Registered nursing is the provision of professional nursing as defined in the Texas Occupations Code Chapter 301.

(14) Specialized registered nursing is the provision of registered nursing to an individual who has a tracheostomy or is dependent on a ventilator.

(15) Specialized licensed vocational nursing is the provision of licensed vocational nursing to an individual who has a tracheostomy or is dependent on a ventilator.

(16) Community support provides transportation to an individual.

(17) Respite provides temporary relief for an unpaid caregiver of an individual in a location other than the individual's residence.

(18) In-home respite provides temporary relief for an unpaid caregiver of an individual in the individual's residence.

(19) Employment assistance provides assistance to help an individual locate paid employment in the community.

(20) Supported employment provides assistance, in order to sustain competitive employment, to an individual who, because of a disability, requires intensive, ongoing support to be self-employed, work from home, or perform in a work setting at which individuals without disabilities are employed.

(21) Employment readiness is assistance that prepares an individual to participate in employment. Employment readiness services are not job-task oriented.

(b) The services described in this subsection are for an individual who is receiving at least one TxHmL Program service through the CDS option.

(1) FMS is a service defined in 40 TAC §41.103 (relating to Definitions).

(2) Support consultation is a service defined in 40 TAC §41.103.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on July 18, 2024.

TRD-202403171

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: September 1, 2024

For further information, please call: (512) 438-2910

SUBCHAPTER B. ELIGIBILITY, ENROLLMENT, AND REVIEW

26 TAC §262.103

STATUTORY AUTHORITY

The amendment implements Texas Human Resources Code §32.0755.

§262.103.Process for Enrollment of Applicants.

(a) HHSC notifies a LIDDA, in writing, when the opportunity for enrollment in the TxHmL Program becomes available in the LIDDA's local service area and directs the LIDDA to offer enrollment to the applicant:

(1) whose interest list date, assigned in accordance with §262.102 of this subchapter (relating to TxHmL Interest List), is earliest on the statewide interest list for the TxHmL Program as maintained by HHSC;

(2) whose name is not coded in the HHSC data system as having been determined ineligible for the TxHmL Program and who is receiving services from the LIDDA that are funded by general revenue in an amount that would allow HHSC to fund the services through the TxHmL Program; or

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

(b) Except as provided in subsection (c) of this section, a LIDDA must offer enrollment in the TxHmL Program in writing and deliver it to the applicant or LAR by United States mail or by hand delivery.

(c) A LIDDA must offer enrollment in the TxHmL Program to an applicant described in subsection (a)(2) or (3) of this section in accordance with HHSC's procedures.

(d) A LIDDA must include in a written offer that is made in accordance with subsection (a)(1) of this section:

(1) a statement that:

(A) if the applicant or LAR does not respond to the offer of enrollment in the TxHmL Program within 30 calendar days after the LIDDA's written offer, the LIDDA withdraws the offer; and

(B) if the applicant is currently receiving services from the LIDDA that are funded by general revenue and the applicant or LAR declines the offer of enrollment in the TxHmL Program, the LIDDA terminates those services that are similar to services provided in the TxHmL Program; and

(2) the HHSC Deadline Notification form, which is available on the HHSC website.

(e) If an applicant or LAR responds to an offer of enrollment in the TxHmL Program, a LIDDA 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/IID Program (both state supported living centers and community-based facilities), waiver programs authorized under §1915(c) of the Social Security Act, and other community-based services and supports, using the HHSC Explanation of Services and Supports document which is available on the HHSC website;

(2) provide the applicant and LAR both an oral and a written explanation of all TxHmL Program services and CFC services using the HHSC Understanding Program Eligibility and Services form, which is available on the HHSC website; and

(3) give the applicant or LAR the HHSC Waiver Program Verification of Freedom of Choice form, which is available on the HHSC website to document the applicant's choice between the TxHmL Program or the ICF/IID Program.

(f) A LIDDA must withdraw an offer of enrollment in the TxHmL Program made to an applicant or LAR if:

(1) within 30 calendar days after the LIDDA's offer made to the applicant or LAR in accordance with subsection (a)(1) of this section, the applicant or LAR does not respond to the offer of enrollment in the TxHmL Program;

(2) within seven calendar days after the applicant or LAR receives the HHSC Waiver Program Verification of Freedom of Choice form from the LIDDA in accordance with subsection (e)(3) of this section, the applicant or LAR does not use the form to document the applicant's choice of the TxHmL Program;

(3) within 30 calendar days after the applicant or LAR receives the contact information regarding all available program providers in the LIDDA's local service area in accordance with subsection (k)(2)(A) of this section, the applicant or LAR does not document a choice of a program provider using the HHSC Documentation of Provider Choice form, which is available on the HHSC website;

(4) the applicant or LAR does not complete the necessary activities to finalize the enrollment process and HHSC has approved the withdrawal of the offer; or

(5) the applicant has moved out of the State of Texas.

(g) If a LIDDA withdraws an offer of enrollment in the TxHmL Program made to an applicant, the LIDDA must notify the applicant or LAR of such action, in writing, by certified United States mail.

(h) If an applicant is currently receiving services from a LIDDA that are funded by general revenue and the applicant declines the offer of enrollment in the TxHmL Program, the LIDDA must terminate those services that are similar to services provided in the TxHmL Program.

(i) If a LIDDA terminates an applicant's services in accordance with subsection (h) of this section, the LIDDA 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 40 TAC §2.46 (relating to Notification and Appeals Process).

(j) A LIDDA must retain in an applicant's record:

(1) the HHSC Waiver Program Verification of Freedom of Choice form;

(2) the HHSC Documentation of Provider Choice form;

(3) the HHSC Deadline Notification form; and

(4) any correspondence related to the offer of enrollment in the TxHmL Program.

(k) If an applicant or LAR accepts the offer of enrollment in the TxHmL Program, the LIDDA must compile and maintain information necessary to process the applicant's request for enrollment in the TxHmL Program.

(1) The LIDDA must complete an ID/RC Assessment in accordance with §262.104(a)(1) of this subchapter (relating to LOC Determination).

(A) The LIDDA must:

(i) do one of the following:

(I) conduct a DID in accordance with §304.401 of this title (relating to Conducting a Determination of Intellectual Disability) except that the following activities must be conducted in person:

(-a-) a standardized measure of the individual's intellectual functioning using an appropriate test based on the characteristics of the individual; and

(-b-) a standardized measure of the individual's adaptive abilities and deficits reported as the individual's adaptive behavior level; or

(II) review and endorse a DID report in accordance with §304.403 of this title (relating to Review and Endorsement of a Determination of Intellectual Disability Report); and

(ii) determine whether the applicant has been diagnosed by a licensed physician as having a related condition.

(B) The LIDDA must:

(i) conduct an ICAP assessment in person; and

(ii) recommend an LON assignment to HHSC in accordance with §262.105 of this subchapter (relating to LON Assignment).

(C) The LIDDA must enter the information from the completed ID/RC Assessment in the HHSC data system and electronically submit the information to HHSC in accordance with §262.104(a)(2) of this subchapter and §262.105(a) of this subchapter and submit supporting documentation as required by §262.106 of this subchapter (relating to HHSC Review of LON).

(2) The LIDDA must:

(A) provide names and contact information to the applicant or LAR for all program providers in the LIDDA's local service area;

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

(C) ensure that the applicant's or LAR's choice of a program provider is documented on the HHSC Documentation of Provider Choice form and that the form is signed by the applicant or LAR and retained by the LIDDA in the applicant's record.

(3) The LIDDA must assign a service coordinator who, together with other members of the service planning team, must:

(A) develop a PDP; and

(B) if CFC PAS/HAB is included on the PDP, complete the HHSC HCS/TxHmL CFC PAS/HAB Assessment form, which is available on the HHSC website, to determine the number of CFC PAS/HAB hours the applicant needs.

(4) The CFC PAS/HAB assessment form required by paragraph (3)(B) of this subsection must be completed in person with the individual unless the following conditions are met, in which case the form may be completed by videoconferencing or telephone:

(A) the service coordinator gives the individual the opportunity to complete the form in person in lieu of completing it by videoconferencing or telephone and the individual agrees to the form being completed by videoconferencing or telephone; and

(B) the individual receives appropriate in-person support during the completion of the form by videoconferencing or telephone.

(l) A service coordinator must:

(1) in accordance with 40 TAC Chapter 41, Subchapter D (relating to Enrollment, Transfer, Suspension, and Termination):

(A) inform the applicant or LAR of the applicant's right to participate in the CDS option; and

(B) inform the applicant or LAR that the applicant or LAR may choose to have one or more services provided through the CDS option, as described in 40 TAC §41.108 (relating to Services Available Through the CDS Option); and

(2) if the applicant or LAR chooses to participate in the CDS option, comply with §262.701(r) of this chapter (relating to LIDDA Requirements for Providing Service Coordination in the TxHmL Program).

(m) The service coordinator must develop an initial IPC with the applicant or LAR based on the PDP and in accordance with §262.301 of this chapter (relating to IPC Requirements).

(n) If an applicant or LAR chooses to receive a TxHmL Program service or CFC service provided by a program provider, the service coordinator must review the initial IPC with potential program providers as requested by the applicant or the LAR.

(o) A service coordinator must:

(1) ensure that the initial IPC includes a sufficient number of RN nursing units for the program provider's RN to perform a comprehensive nursing assessment, unless:

(A) nursing services are not on the initial IPC and the applicant or LAR and selected program provider have determined that no nursing tasks will be performed by an unlicensed service provider as documented on the HHSC Nursing Task Screening Tool form; or

(B) an unlicensed service provider will perform a nursing task and a physician has delegated the task as a medical act under Texas Occupations Code Chapter 157, as documented by the physician;

(2) if an applicant or LAR refuses to include a sufficient number of RN nursing units on the initial IPC for the program provider's RN to perform a comprehensive nursing assessment as required by paragraph (1) of this subsection:

(A) inform the applicant or LAR that the refusal:

(i) will result in the applicant not receiving nursing services from the program provider; and

(ii) if the applicant needs community support, employment readiness, day habilitation, employment assistance, supported employment, respite, or CFC PAS/HAB from the program provider, will result in the applicant not receiving the service unless:

(I) the program provider's unlicensed service provider does not perform nursing tasks in the provision of the service; and

(II) the program provider determines that it can ensure the applicant's health, safety, and welfare in the provision of the service; and

(B) document the refusal of the RN nursing units on the initial IPC for a comprehensive nursing assessment by the program provider's RN in the applicant's record;

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

(4) ensure that the applicant or LAR signs and dates the initial IPC and provides the signed and dated IPC to the service coordinator in person, electronically, by fax, or by United States mail;

(5) ensure that the selected program provider signs and dates the initial IPC, demonstrating agreement that the services will be provided to the applicant; and

(6) sign and date the initial IPC to demonstrate that the service coordinator agrees that the requirements described in §262.301(c) of this chapter have been met.

(p) A service coordinator must:

(1) provide an oral and written explanation to the applicant or LAR of the following information using the HHSC Understanding Program Eligibility and Services form, which is available on the HHSC website:

(A) the eligibility requirements for TxHmL Program services as described in §262.101(a) of this subchapter (relating to Eligibility Criteria for TxHmL Program Services and CFC Services); and

(B) if the applicant's PDP includes CFC services:

(i) the eligibility requirements for CFC services as described in §262.101(b) of this subchapter to applicants who do not receive MAO Medicaid; and

(ii) the eligibility requirements for CFC services as described in §262.101(c) of this subchapter to applicants who receive MAO Medicaid; and

(2) provide an oral and written explanation to the applicant or LAR of:

(A) the reasons TxHmL Program services may be terminated as described in §262.507 of this chapter (relating to Termination of TxHmL Program Services and CFC Services with Advance Notice) and §262.508 of this chapter (relating to Termination of TxHmL Program Services and CFC Services without Advance Notice); and

(B) if the applicant's PDP includes CFC services, the reasons CFC services may be terminated as described in §262.507 and §262.508 of this chapter.

(q) After an initial IPC is finalized and signed in accordance with subsection (o) of this section, the LIDDA must:

(1) enter the information from the initial IPC in the HHSC data system and electronically submit the information to HHSC;

(2) keep the original initial IPC in the individual's record;

(3) ensure the information from the initial IPC entered in the HHSC data system and electronically submitted to HHSC contains information identical to the information on the initial IPC; and

(4) submit other required enrollment information to HHSC;

(r) HHSC notifies the applicant or LAR, the selected program provider, the FMSA, if applicable, and the LIDDA of its approval or denial of the applicant's enrollment. If the enrollment is approved, HHSC authorizes the applicant's enrollment in the TxHmL Program through the HHSC data system and issues an enrollment letter to the applicant that includes the effective date of the applicant's enrollment in the TxHmL Program.

(s) The selected program provider and the individual or LAR must develop:

(1) an implementation plan for:

(A) TxHmL Program services, except for community support, that is based on the individual's PDP and initial IPC; and

(B) CFC services, except for CFC support management, that is based on the individual's PDP, IPC, and if CFC PAS/HAB is included on the PDP, the completed HHSC HCS/TxHmL CFC PAS/HAB Assessment form; and

(2) a transportation plan, if community support is included on the PDP.

(t) Before the applicant's service begin date, a LIDDA must provide to the selected program provider and FMSA, if applicable:

(1) copies of all enrollment documentation and associated supporting documentation, including relevant assessment results and recommendations;

(2) the completed ID/RC Assessment;

(3) the IPC;

(4) the applicant's PDP; and

(5) if CFC PAS/HAB is included on the PDP, a copy of the completed HHSC HCS/TxHmL CFC PAS/HAB Assessment form.

(u) In accordance with §262.401(a)(5)(N) of this chapter (relating to Program Provider Reimbursement), if a selected program provider provides services before the date of an applicant's enrollment into the TxHmL Program, HHSC does not pay the program provider for the services.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on July 18, 2024.

TRD-202403172

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: September 1, 2024

For further information, please call: (512) 438-2910

SUBCHAPTER C. PERSON-CENTERED PLANNING AND SERVICE SETTINGS

26 TAC §262.202

STATUTORY AUTHORITY

The amendment implements Texas Human Resources Code §32.0755.

§262.202.Requirements for Home and Community-Based Settings.

(a) A home and community-based setting is a setting in which an individual receives TxHmL Program services or CFC services. A home and community-based setting must have all of the following qualities, based on the needs and preferences of an individual as documented in the individual's PDP.

(A) seek employment and work in a competitive integrated setting;

(B) engage in community life;

(D) receive services in the community.

(2) The setting is selected by the individual from among setting options, including non-disability specific settings. The setting options are identified and documented in the PDP and are based on the individual's needs and preferences.

(3) The setting ensures an individual's rights of privacy, dignity and respect, and freedom from coercion and restraint.

(5) The setting facilitates individual choice regarding services and supports, and the service providers who provide the services and supports.

(b) Except as provided in subsection (c) of this section, a program provider must ensure that TxHmL Program services and CFC services are not provided in a setting that is presumed to have the qualities of an institution. A setting is presumed to have the qualities of an institution if the setting:

(1) is located in a building in which a certified ICF/IID operated by a LIDDA or state supported living center is located but is distinct from the ICF/IID;

(2) is located in a building on the grounds of, or immediately adjacent to, a certified ICF/IID operated by a LIDDA or state supported living center;

(4) is located in a building on the grounds of, or immediately adjacent to, a hospital, a nursing facility, or other institution except for a licensed private ICF/IID; or

(5) has the effect of isolating individuals from the broader community of persons not receiving Medicaid HCBS.

(c) A program provider may provide a TxHmL Program service or a CFC service to an individual in a setting that is presumed to have the qualities of an institution as described in subsection (b) of this section, if CMS determines through a heightened scrutiny review that the setting:

(1) does not have the qualities of an institution; and

(2) does have the qualities of home and community-based settings.

(d) In addition to the requirements in subsection (a) of this section, a program provider must ensure that a group setting:

(1) allows an individual to:

(A) control the individual's schedule and activities;

(B) have access to the individual's food at any time; and

(2) is physically accessible and free of hazards to an individual.

(e) If a program provider becomes aware that a modification to a requirement described in subsection (d)(1) of this section is needed based on a specific assessed need of an individual, the program provider must:

(1) notify the service coordinator of the needed modification; and

(2) provide the service coordinator with the information described in §262.701(v) of this chapter relating to (LIDDA Requirements for Providing Service Coordination in the TxHmL Program) as requested by the service coordinator.

(f) If a service coordinator receives a notification as described in subsection (e) of this section, the service coordinator must convene a service planning team meeting to update the PDP as described §262.701(v) of this chapter.

(g) after the service planning team updates the PDP as required by subsection (f) of this section, the program provider may implement the modifications.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on July 18, 2024.

TRD-202403173

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: September 1, 2024

For further information, please call: (512) 438-2910

SUBCHAPTER D. DEVELOPMENT AND REVIEW OF AN IPC

26 TAC §262.301, §262.304

STATUTORY AUTHORITY

The amendments implement Texas Human Resources Code §32.0755.

§262.301.IPC Requirements.

(a) An IPC must be based on the PDP and specify:

(1) the type and amount of each TxHmL Program service and CFC service to be provided to the individual during an IPC year;

(2) the services and supports to be provided to the individual through resources other than TxHmL Program services or CFC services during an IPC year, including natural supports, medical services, day activity, and educational services;

(3) if an individual will receive CFC support management; and

(4) if there are any TxHmL Program services or CFC services identified on the PDP as critical, requiring a service backup plan.

(b) If an applicant's or individual's IPC includes only CFC PAS/HAB to be delivered through the CDS option, a service coordinator must include in the IPC:

(1) CFC FMS instead of FMS; and

(2) if the applicant or individual will receive support consultation, CFC support consultation instead of support consultation.

(1) must be necessary to protect the individual's health and welfare in the community;

(2) must not be available to the individual through any other source, including the Medicaid State Plan, other governmental programs, private insurance, or the individual's natural supports;

(3) must be the most appropriate type and amount to meet the individual's needs;

(4) must be cost effective;

(5) must be necessary to enable community integration and maximize independence;

(6) if an adaptive aid or minor home modification, must:

(A) be included on HHSC's approved list in the TxHmL Program Billing Requirements; and

(B) be within the service limit described in §262.304 of this subchapter (relating to Service Limits);

(7) if an adaptive aid costing $500 or more, must be supported by a written assessment from a licensed professional specified by HHSC in the TxHmL Program Billing Requirements;

(8) if a minor home modification costing $1,000 or more, must be supported by a written assessment from a licensed professional specified by HHSC in the TxHmL Program Billing Requirements;

(9) if dental treatment, must be within the service limit described in §262.304 of this subchapter; [~~and~~]

(10) if CFC PAS/HAB, must be supported by the HHSC HCS/TxHmL CFC PAS/HAB Assessment form; and[.]

(11) if employment readiness, must be:

(A) supported by a an HHSC Employment First Discovery Tool that is completed in accordance with §284.105 of this title (relating to Uniform Process); and

(B) within the service limit described in §262.304 of this subchapter.

§262.304.Service Limits.

(a) The following limits apply to an individual's TxHmL Program services:

(1) for adaptive aids, $10,000 during an IPC year;

(2) for dental treatment, $1,000 during an IPC year;

(3) for minor home modifications:

(A) $7,500 during the time the individual is enrolled in the TxHmL Program, which may be paid in one or more IPC years; [~~and~~]

(B) a maximum of $300 for repair and maintenance during the IPC year; and

(4) for day habilitation and in-home day habilitation combined, 260 units during an IPC year; and[.]

(5) for employment readiness and individualized skills and socialization combined:

(A) 1560 hours during an IPC year;

(B) six hours per calendar day; and

(b) A program provider may request, in accordance with the TxHmL Program Billing Requirements, authorization of a requisition fee:

(1) for an adaptive aid that is in addition to the $10,000 service limit described in subsection (a)(1) of this section;

(2) for dental treatment that is in addition to the $1,000 service limit described in subsection (a)(2) of this section; or

(3) for a minor home modification that is in addition to the $7,500 service limit described in subsection (a)(3)(A) of this section.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on July 18, 2024.

TRD-202403174

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: September 1, 2024

For further information, please call: (512) 438-2910

SUBCHAPTER E. REIMBURSEMENT BY HHSC

26 TAC §262.401

STATUTORY AUTHORITY

The amendment implements Texas Human Resources Code §32.0755.

§262.401.Program Provider Reimbursement.

(a) Program provider reimbursement.

(1) HHSC pays a program provider for services as described in this paragraph.

(A) HHSC pays for community support, nursing, in-home respite, respite, employment readiness, day habilitation, in-home day habilitation, employment assistance, supported employment, professional therapies, and CFC PAS/HAB in accordance with the reimbursement rate for the specific service.

(B) HHSC pays for adaptive aids, minor home modifications, and dental treatment based on the actual cost of the item or service and, if requested, a requisition fee in accordance with the TxHmL Program Billing Requirements available on the HHSC website.

(C) HHSC pays for CFC ERS based on the actual cost of the service not to exceed the reimbursement rate ceiling for CFC ERS.

(2) To be paid for the provision of a service, a program provider must submit a service claim that meets the requirements in 40 TAC §49.311 (relating to Claims Payment) and the TxHmL Program Billing Requirements or the CFC Billing Requirements for HCS and TxHmL Program Providers.

(3) If an individual's TxHmL Program services or CFC services are suspended or terminated, a program provider must not submit a claim for services provided during the period of the individual's suspension or after the termination except the program provider may submit a claim for a service provided on the first calendar day of the suspension or termination.

(4) If a 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 claim must be supported by a written assessment from a licensed professional specified by HHSC in the TxHmL Program Billing Requirements and other documentation as required by the TxHmL Program Billing Requirements.

(5) HHSC does not pay a program provider for a service or recoups any payments made to the program provider for a service if:

(A) the individual receiving the service was, at the time the service was provided, ineligible for the TxHmL Program or Medicaid benefits, or was an inpatient of a hospital, nursing facility, or ICF/IID;

(B) the service was not included on the signed and dated IPC of the individual in effect at the time the service was provided;

(C) the service was not provided in accordance with the TxHmL Program Billing Requirements or the CFC Billing Requirements for HCS and TxHmL Program Providers;

(D) the service was not documented in accordance with the TxHmL Program Billing Requirements or the CFC Billing Requirements for HCS and TxHmL Program Providers;

(E) the program provider did not comply with 40 TAC §49.305 (relating to Records);

(F) the claim for the service was not prepared and submitted in accordance with the TxHmL Program Billing Requirements or the CFC Billing Requirements Guidelines for HCS and TxHmL Program Providers;

(G) the program provider did not have the documentation described in subsection (a)(4) of this section;

(H) before including employment assistance on an individual's IPC, the program provider did not ensure and maintain documentation in the individual's record that employment assistance was not available to the individual under a program funded under §110 of the Rehabilitation Act of 1973, as amended (29 U.S.C. §701 et seq.) or under a program funded under the Individuals with Disabilities Education Act (20 U.S.C. §1401 et seq.);

(I) before including supported employment on an individual's IPC, the program provider did not ensure and maintain documentation in the individual's record that supported employment was not available to the individual under a program funded under the Individuals with Disabilities Education Act (20 U.S.C. §1401 et seq.);

(J) employment readiness, if before including the employment readiness on an individual's IPC, the program provider did not ensure and maintain documentation in the individual's record that employment readiness was not available to the individual under a program funded under §110 of the Rehabilitation Act of 1973 or under a program funded under the Individuals with Disabilities Education Act (20 U.S.C. §1401 et seq.);

(K) [~~(J)~~] HHSC determines that the service would have been paid for by a source other than the TxHmL Program;

(L) [~~(K)~~] the service was provided by a service provider who did not meet the qualifications to provide the service as described in the TxHmL Program Billing Requirements or the CFC Billing Requirements for HCS and TxHmL Program Providers;

(M) [~~(L)~~] the service was not provided in accordance with a signed and dated IPC meeting the requirements set forth in §262.301 of this subchapter (relating to IPC Requirements);

(N) [~~(M)~~] the service was not provided in accordance with the PDP or the implementation plan;

(O) [~~(N)~~] the service was provided before the individual's date of enrollment into the TxHmL Program;

(P) [~~(O)~~] for community support, the service was not provided in accordance with a transportation plan and §262.5(a)(16) of this chapter (relating to Description of TxHmL Program Services);

(Q) [~~(P)~~] the service was not provided; or

(R) [~~(Q)~~] for CFC PAS/HAB, in-home day habilitation, and in-home respite, if the service claim for the service did not match the EVV visit transaction as required by 1 TAC §354.4009(a)(4) (relating to Requirements for Claims Submission and Approval).

(6) A program provider must refund to HHSC 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 HHSC, whichever is earlier.

(7) Except as provided in paragraph (8) of this subsection, if HHSC approves an LOC requested in accordance with §262.104(b)(3) of this chapter (relating to LOC Determination), HHSC pays a program provider for services provided to an individual for a period of not more than 180 calendar days after the individual's previous ID/RC Assessment expires.

(8) If HHSC determines that an ID/RC Assessment was submitted more than 180 calendar days after the expiration date of the previous ID/RC Assessment because of circumstances beyond a program provider's control, HHSC may pay the program provider for a period of more than 180 calendar days after the individual's previous ID/RC Assessment expires.

(9) HHSC does not withhold payments to a program provider if a LIDDA fails to enter information from an individual's renewal IPC and the program provider continues to provide services in accordance with the most recent IPC authorized by HHSC.

(b) Provider fiscal compliance reviews.

(1) HHSC conducts provider fiscal compliance reviews to determine a program provider is in compliance with:

(A) this chapter;

(B) the TxHmL Program Billing Requirements;

(D) 40 TAC Chapter 49, Subchapter C; and

(E) the program provider's Community Services Contract-Provider Agreement.

(2) HHSC conducts provider fiscal compliance reviews in accordance with the Provider Fiscal Compliance Review Protocol set forth in the TxHmL Program Billing Requirements and the CFC Billing Requirements for HCS and TxHmL Program Providers. As a result of a provider fiscal compliance review, HHSC 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 HHSC's instructions, a corrective action plan that improves the program provider's billing practices.

(3) A corrective action plan required by HHSC in accordance with paragraph (2)(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 HHSC within 30 calendar days after the date the program provider is notified the corrective action plan is required; and

(4) Within 30 calendar days after HHSC receives a corrective action plan, HHSC notifies the program provider if HHSC approves the corrective action plan or if the plan requires changes.

(5) If HHSC requires a program provider to develop and submit a corrective action plan in accordance with paragraph (2)(B) of this subsection and the program provider requests an administrative hearing for the recoupment in accordance with §262.602 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. HHSC 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.

(6) If a program provider does not submit a corrective action plan or complete a required corrective action within the time frames described in paragraph (3) of this subsection, HHSC may impose a vendor hold on payments due to the program provider until the program provider takes the corrective action.

(7) If a program provider does not submit a corrective action plan or complete a required corrective action within 30 calendar days after the date a vendor hold is imposed in accordance with paragraph (6) of this subsection, HHSC may terminate the contract.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on July 18, 2024.

TRD-202403175

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: September 1, 2024

For further information, please call: (512) 438-2910

SUBCHAPTER H. LIDDA REQUIREMENTS

26 TAC §262.701

STATUTORY AUTHORITY

The amendment implements Texas Human Resources Code §32.0755.

§262.701.LIDDA Requirements for Providing Service Coordination in the TxHmL Program.

(a) A LIDDA must offer TxHmL Program services to an applicant in accordance with §262.103 of this chapter (relating to Process for Enrollment of Applicants).

(b) A LIDDA must process enrollments of individuals in the TxHmL Program in accordance with §262.103 of this chapter.

(c) A LIDDA must be objective in the process to assist an individual or LAR in the selection of a program provider or FMSA and train all LIDDA staff who may assist an individual or LAR in the process.

(d) A LIDDA must, upon the enrollment of an individual and annually thereafter, inform the individual or LAR orally and in writing of the following:

(1) the telephone number of the LIDDA to file a complaint;

(2) the toll-free telephone number of the HHSC IDD Ombudsman, 1-800-252-8154, to file a complaint; and

(3) the toll-free telephone number of DFPS, 1-800-647-7418, to report an allegation of abuse, neglect, or exploitation.

(e) A LIDDA must maintain for each individual for an IPC year:

(1) a copy of the IPC;

(2) the PDP and, if CFC PAS/HAB is included on the PDP, the completed HHSC HCS/TxHmL CFC PAS/HAB Assessment form;

(3) a copy of the ID/RC Assessment;

(4) documentation of the activities performed by the service coordinator in providing service coordination; and

(5) any other pertinent information related to the individual.

(f) For an individual receiving TxHmL Program services and CFC services within a LIDDA's local service area, the LIDDA must provide the individual's program provider a copy of the individual's current PDP, IPC, and ID/RC Assessment.

(g) A LIDDA must ensure that a service coordinator is an employee of the LIDDA and meets the requirements of this subsection.

(1) A service coordinator must meet the minimum qualifications and LIDDA staff training requirements described in Chapter 331 of this title (relating to LIDDA Service Coordination ), except as described in paragraph (2) of this subsection.

(2) Notwithstanding §331.19(b) of this title (relating to Staff Person Training), a service coordinator must complete a comprehensive non-introductory person-centered service planning training developed or approved by HHSC within six months after the service coordinator's date of hire, unless an extension of the six month timeframe is granted by HHSC.

(3) A service coordinator must receive training about the following within the first 90 calendar days after beginning service coordination duties:

(A) rules governing the TxHmL Program and CFC; and

(B) 40 TAC Chapter 41 (relating to Consumer Directed Services Option).

(h) A LIDDA must ensure that a service coordinator:

(1) initiates, coordinates, and facilitates the person-centered planning process to meet the desires and needs as identified by an individual and LAR in the individual's PDP, including:

(A) scheduling service planning team meetings; and

(B) documenting on the PDP whether, for each TxHmL Program service or CFC service identified on the PDP, the service is critical to meeting the individual's health and safety as determined by the service planning team;

(2) coordinates the development and implementation of the individual's PDP;

(3) coordinates and develops an individual's IPC based on the individual's PDP;

(4) coordinates and monitors the delivery of TxHmL Program services and CFC services and non-TxHmL Program and non-CFC services; and

(5) document whether an individual progresses toward desired outcomes identified on the individual's PDP from the individual's and LAR's perspectives.

(i) A LIDDA must inform an individual or LAR of the name of the individual's service coordinator and how to contact the service coordinator.

(j) A service coordinator must:

(1) assist the individual or LAR or actively involved person in exercising the legal rights of the individual;

(2) provide an individual, LAR, or family member with a written copy of the booklet, Your Rights in the Texas Home Living (TxHmL) Program, available on the HHSC website, and an oral explanation of the rights described in the booklet:

(A) at the time the individual enrolls in the TxHmL Program;

(B) when the booklet is revised;

(D) if one of the following occurs:

(i) the individual becomes 18 years of age;

(ii) a guardian is appointed for the individual; or

(iii) a guardianship for the individual ends;

(3) document compliance with paragraph (2) of this subsection in the individual's record and include:

(A) the signature of the individual or LAR; and

(B) the signature of the service coordinator;

(4) ensure that the individual and LAR participate in developing a PDP and IPC that meet the individual's identified needs and service outcomes and that the individual's PDP is updated annually and if the individual's needs or outcomes change;

(5) if a behavioral support plan includes techniques that involve restriction of individual rights or intrusive techniques, discuss with the service planning team to determine whether the techniques will be approved by the service planning team;

(6) if notified by the program provider that an individual or LAR has refused a comprehensive nursing assessment and that the program provider has determined that it cannot ensure the individual's health, safety, and welfare in the provision of community support, day habilitation, in-home day habilitation, employment readiness, employment assistance, supported employment, respite, or CFC PAS/HAB:

(A) inform the individual or LAR of the consequences and risks of refusing the assessment, including that the refusal will result in the individual not receiving:

(i) nursing services; or

(ii) community support, day habilitation, in-home day habilitation, employment readiness, employment assistance, supported employment, respite, or CFC PAS/HAB, if the individual needs one of those services and the program provider has determined that it cannot ensure the health, safety, and welfare of the individual in the provision of the service; and

(B) notify the program provider if the individual or LAR continues to refuse the assessment after the discussion with the service coordinator;

(7) inform the individual or LAR of decisions regarding denial, suspension, reduction, or termination of services and the individual's or LAR's right to request a fair hearing as described in §262.601 of this chapter (relating to Fair Hearing); and

(8) in accordance with §262.501 (relating to Process for Individual to Transfer to a Different Program Provider or FMSA), manage the process to transfer an individual's TxHmL Program services and CFC services from one program provider to another or transfer from one FMSA to another.

(k) When a service coordinator becomes aware that a change to an individual's PDP or IPC may be needed, the service coordinator must discuss the need for the change with the individual or LAR, the individual's program provider, and other appropriate persons.

(l) At least 30 calendar days before the expiration of an individual's IPC, the service coordinator must:

(1) update the individual's PDP with the individual's service planning team; and

(2) if the individual receives a TxHmL Program service or a CFC service from a program provider, submit to the program provider and the individual or LAR:

(A) the updated PDP; and

(B) if CFC PAS/HAB is included on the PDP, a copy of the completed HHSC HCS/TxHmL CFC PAS/HAB Assessment form.

(m) A service coordinator must:

(1) complete the HHSC TxHmL Service Coordination Notification form with the individual or LAR and provide a copy of the completed form to the individual or LAR:

(A) upon receipt of HHSC approval of the enrollment of the individual;

(B) if the form is revised;

(D) if one of the following occurs:

(i) the individual becomes 18 years of age;

(ii) a guardian is appointed for the individual; or

(iii) a guardianship for the individual ends; and

(2) retain a copy of the completed form in the individual's record.

(n) A service coordinator must conduct:

(1) a pre-move site review for an applicant 21 years of age or older who is enrolling in the TxHmL Program from a nursing facility or as a diversion from admission to a nursing facility; and

(2) post-move monitoring visits for an individual 21 years of age or older who enrolled in the TxHmL Program from a nursing facility or has enrolled in the TxHmL Program as a diversion from admission to a nursing facility.

(o) A service coordinator must have contact with an individual in person, by videoconferencing, or telephone to provide service coordination during a month in which it is anticipated that the individual will not receive a TxHmL Program service unless:

(1) the individual's TxHmL Program services have been suspended; or

(2) the service coordinator had an in-person contact with the individual that month to comply with §331.11(d) of this title (relating to LIDDA's Responsibilities).

(p) In addition to the requirements described in Chapter 331 of this title (relating to LIDDA Service Coordination), a LIDDA must:

(1) comply with:

(A) this subchapter;

(B) 40 TAC Chapter 41; and

(C) 40 TAC Chapter 4, Subchapter L, (relating to Abuse, Neglect, and Exploitation in Local Authorities and Community Centers); and

(2) ensure that a rights protection officer, as required by 40 TAC §4.113 (relating to Rights Protection Officer at a State MR Facility or MRA), who receives a copy of an HHSC initial intake report or a final investigative report from an FMSA, in accordance with 40 TAC §41.702 (relating to Requirements Related to HHSC Investigations When an Alleged Perpetrator is a Service Provider) or 40 TAC §41.703 (relating to Requirements Related to HHSC Investigations When an Alleged Perpetrator is a Staff Person or a Controlling Person of an FMSA), gives a copy of the report to the individual's service coordinator.

(q) A service coordinator must:

(1) at least annually, in accordance with 40 TAC Chapter 41, Subchapter D (relating to Enrollment, Transfer, Suspension, and Termination):

(A) inform the individual or LAR of the individual's right to participate in the CDS option; and

(B) inform the individual or LAR that the individual or LAR may choose to have one or more services provided through the CDS option, as described in 40 TAC §41.108 (relating to Services Available Through the CDS Option); and

(2) document compliance with paragraph (1) of this subsection in the individual's record.

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

(1) provide names and contact information to the individual or LAR of all FMSAs providing services in the LIDDA's local service area;

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

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

(4) develop with the individual or LAR and other members of the service planning team a transportation plan if an individual's PDP includes community support to be delivered through the CDS option.

(s) For an individual participating in the CDS option, a service coordinator must recommend that HHSC terminate the individual's participation in the CDS option if the service coordinator determines that:

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

(2) the individual, LAR, or designated representative has not complied with 40 TAC Chapter 41, Subchapter B (relating to Responsibilities of Employers and Designated Representatives).

(t) To make a recommendation described in subsection (s) of this section, a service coordinator must submit the following documentation to HHSC:

(1) the services the individual receives through the CDS option;

(2) the reason why the recommendation is made;

(3) a description of the attempts to resolve the issues before making the recommendation; and

(4) any other supporting documentation, as appropriate.

(u) A service coordinator must do the following regarding responsibilities related to EVV:

(1) for an applicant who will receive a service that requires the use of EVV from the program provider or through the CDS option:

(A) orally explain the information in the HHSC Electronic Visit Verification Responsibilities and Additional Information form to the applicant or LAR;

(B) sign the HHSC Electronic Visit Verification Responsibilities and Additional Information form to attest to explaining the information and to providing a copy to the individual or LAR;

(D) perform the activities described in subparagraph (A) - (C) of this paragraph before the individual's enrollment; and

(E) maintain the completed HHSC Electronic Visit Verification Responsibilities and Additional Information form in the individual's record;

(2) for an individual who will receive a service that requires the use of EVV from the program provider or who is transferring to another program provider or LIDDA and will receive a service that requires the use of EVV from the program provider or through the CDS option:

(A) orally explain the information in the HHSC Electronic Visit Verification Responsibilities and Additional Information form to the individual or LAR;

(B) sign the HHSC Electronic Visit Verification Responsibilities and Additional Information form to attest to explaining the information and to providing a copy to the individual or LAR;

(D) perform the activities described in subparagraphs (A)-(C) of this paragraph on or before the effective date of the transfer to another program provider or LIDDA; and

(E) maintain the completed HHSC Electronic Visit Verification Responsibilities and Additional Information form in the individual's record; and

(3) for an individual who will receive a service that requires the use of EVV through the CDS option or who will transfer to another FMSA and is receiving a service requiring the use of EVV:

(A) orally explain the information in the HHSC Electronic Visit Verification Responsibilities and Additional Information form to the individual or LAR;

(B) sign the HHSC Electronic Visit Verification Responsibilities and Additional Information form to attest to explaining the information and to providing a copy to the individual or LAR;

(D) perform the activities described in subparagraphs (A)-(C) of this paragraph before the individual receives the EVV required service through the CDS option or on or before the effective date of the transfer to another FMSA; and

(E) maintain the completed HHSC Electronic Visit Verification Responsibilities and Additional Information form in the individual's record.

(v) If notified by a program provider that a requirement described in §262.202 (d)(1) of this chapter (relating to Requirements for Home and Community-Based Settings), needs to be modified, a service coordinator must update the individual's PDP to include the following:

(1) a description of the specific and individualized assessed need that justifies the modification;

(2) a description of the positive interventions and supports that were tried but did not work;

(3) a description of the less intrusive methods of meeting the need that were tried but did not work;

(4) a description of the condition that is directly proportionate to the specific assessed need;

(5) a description of how data will be routinely collected and reviewed to measure the ongoing effectiveness of the modification;

(6) the established time limits for periodic reviews to determine if the modification is still necessary or can be terminated;

(7) the individual's or LAR's signature evidencing informed consent to the modification; and

(8) the program provider's assurance that the modification will cause no harm to the individual.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on July 18, 2024.

TRD-202403176

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: September 1, 2024

For further information, please call: (512) 438-2910

CHAPTER 263. HOME AND COMMUNITY-BASED SERVICES (HCS) PROGRAM AND COMMUNITY FIRST CHOICE (CFC)

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §263.3, concerning Definitions; §263.5, concerning Description of HCS Program Services; §263.104, concerning Process for Enrollment of Applicants; §263.301, concerning IPC Requirements; §263.304, concerning Service Limits; §263.501, concerning Requirements for Home and Community-Based Settings; §263.601, concerning Program Provider Reimbursement; and §263.901, concerning LIDDA Requirements for Providing Service Coordination in the HCS Program.

BACKGROUND AND PURPOSE

The purpose of the proposed amendments is to implement Texas Human Resources Code §32.0755, added by House Bill (H.B.) 4169, 88th Legislature, Regular Session, 2023. The proposed amendments implement a service similar to prevocational services, named employment readiness, in the Home and Community-based Services (HCS) Program, one of HHSC's §1915(c) Medicaid waiver programs.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §263.3 adds and defines the terms "group setting" in new paragraph (36) and the term "job task-oriented" in new paragraph (56) because these new terms are used in the proposed amended rules. The proposed amendment also renumbers the paragraphs in the rule.

The proposed amendment to §263.5 adds a new paragraph (26) in subsection (a), to describe employment readiness. The proposed amendment also renumbers subsection (a).

The proposed amendment to §263.104 adds employment readiness in subsection (k)(9), to the array of HCS Program services that may require the individual's initial individual plan of care (IPC) to include a sufficient amount of registered nursing units for the program provider's registered nurse to perform a comprehensive nursing assessment. In subsection (k)(10)(A)(ii), employment readiness is added to the list of HCS Program services which a service coordinator must inform the applicant or legally authorized representative (LAR) the applicant they may not be able to receive if enough registered nursing units for a comprehensive nursing assessment are not included in the initial IPC.

The proposed amendment to §263.301 adds a new paragraph (15) in subsection (c), requiring authorization of employment readiness to be supported by an HHSC Employment First Discovery Tool and be within the service limit described in the proposed amendment to §263.304.

The proposed amendment to §263.304 adds a new paragraph (7) in subsection (a), to establish a combined service limit for employment readiness and individualized skills and socialization.

The proposed amendment to §263.501 adds a new subsection (d)(1) and (2) to the rule. Proposed new subsection (d)(1) requires a program provider to ensure that a group setting allows an individual to control the individual's own schedule and activities, have access to the individual's food at any time, and receive visitors of the individual's choosing at any time. Proposed new subsection (d)(2) requires a program provider to ensure a group setting is physically accessible and free of hazards. The proposed amendment adds new subsections (e), (f), and (g) that outline requirements for implementing a modification to a requirement in proposed new subsection (d)(1).

The proposed amendment to §263.601, adds employment readiness in paragraph (1)(B), to the array of HCS Program services that HHSC pays in accordance with the individual's LON and reimbursement rate for the service. The proposed amendment adds employment readiness in a new subparagraph (H) in paragraph (3) as an HCS Program service a program provider may bill for if provided on the first day of the individual's suspension or termination. The proposed amendment adds a new subparagraph (E) in paragraph (5) that states HHSC does not pay for employment readiness if the program provider did not ensure and maintain documentation in the individual's record that employment readiness is not available to the individual under §110 of the Rehabilitation Act of 1973 or under a program funded under the Individuals with Disabilities Education Act (20 U.S.C. §1401 et seq.). The proposed amendment also renumbers the remaining subparagraphs in paragraphs (3) and (5).

The proposed amendment to §263.901 in subsection (e)(21), adds a reference to proposed new §263.501(d)(1), to require a service coordinator to update an individual's person-directed plan if a modification to a service delivered in a group setting is needed. Additionally, the proposed amendment adds employment readiness in subsection (e)(22) to the array of HCS services that require the service coordinator to inform the individual or LAR of the consequences and risks of refusing the comprehensive nursing assessment.

FISCAL NOTE

Trey Wood, HHSC Chief Financial Officer, as determined that for each year of the first five years that the rules will be in effect, enforcing or administering the rules does not have foreseeable implications relating to costs or revenues of state or local governments.

GOVERNMENT GROWTH IMPACT STATEMENT

HHSC has determined that during the first five years that the rules will be in effect:

(1) the proposed rules will not create or eliminate a government program;

(2) implementation of the proposed rules will not affect the number of HHSC employee positions;

(3) implementation of the proposed rules will result in no assumed change in future legislative appropriations;

(4) the proposed rules will not affect fees paid to HHSC;

(5) the proposed rules will not create a new regulation;

(6) the proposed rules will expand existing regulations;

(7) the proposed rules will not change the number of individuals subject to the rules; and

(8) the proposed rules will not affect the state's economy.

SMALL BUSINESS, MICRO-BUSINESS, AND RURAL COMMUNITY IMPACT ANALYSIS

LOCAL EMPLOYMENT IMPACT

The proposed rules will not affect a local economy.

COSTS TO REGULATED PERSONS

PUBLIC BENEFIT AND COSTS

Emily Zalkovsky, State Medicaid Director, has determined that for each year of the first five years the rules are in effect, the individuals in the HCS Program will benefit from having an additional service to provide assistance with getting ready for competitive employment and furthering their employment goals.

TAKINGS IMPACT ASSESSMENT

PUBLIC COMMENT

SUBCHAPTER A. GENERAL PROVISIONS

26 TAC §263.3, §263.5

STATUTORY AUTHORITY

The amendments implement Texas Human Resources Code §32.0755.

§263.3.Definitions.

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

(1) Abuse--

(A) physical abuse;

(B) sexual abuse; or

(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.

(3) ADLs--Activities of daily living. Basic personal everyday activities, including tasks such as eating, toileting, grooming, dressing, bathing, and transferring.

(4) Agency foster home--This term has the meaning set forth in Texas Human Resources Code §42.002.

(5) ALF--Assisted living facility. A facility licensed in accordance with Texas Health and Safety Code Chapter 247, Assisted Living Facilities.

(6) Applicant--A Texas resident seeking services in the Home and Community-Based Services Program.

(7) Audio-only--An interactive, two-way audio communication platform that only uses sound.

(8) Auxiliary aid--A service or device that enables an individual with impaired sensory, manual, or speaking skills to participate in the person-centered planning process. An auxiliary aid includes interpreter services, transcription services, and a text telephone.

(9) Business day--Any day except a Saturday, Sunday, or national or state holiday listed in Texas Government Code §662.003(a) or (b).

(10) Calendar day--Any day, including weekends and holidays.

(11) CDS option--Consumer directed services option. A service delivery option as defined in 40 TAC §41.103 (relating to Definitions).

(12) CFC--Community First Choice.

(13) CFC ERS--CFC emergency response services.

(14) CFC FMS--The term used for financial management services on the individual plan of care (IPC) of an applicant or individual if the applicant will receive or the individual receives only CFC personal assistance services (PAS)/habilitation (HAB) through the CDS option.

(15) CFC support consultation--The term used for support consultation on the IPC of an applicant or individual if the applicant will receive or the individual receives only CFC PAS/HAB through the CDS option.

(16) CMS--Centers for Medicare & Medicaid Services. The federal agency within the United States Department of Health and Human Services that administers the Medicare and Medicaid programs.

(17) Competitive employment--Employment that pays an individual at least minimum wage if the individual is not self-employed.

(18) Comprehensive nursing assessment--A comprehensive physical and behavioral assessment of an individual, including the individual's health history, current health status, and current health needs, that is completed by a registered nurse (RN).

(19) Contract--A provisional contract or a standard contract.

(20) 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 Texas Health and Human Services Commission (HHSC) website.

(21) Delegated nursing task--A nursing task delegated by an RN to an unlicensed person in accordance with:

(A) 22 TAC Chapter 224 (relating to Delegation of Nursing Tasks by Registered Professional Nurses to Unlicensed Personnel for Clients with Acute Conditions or in Acute Care Environments); and

(B) 22 TAC Chapter 225 (relating to RN Delegation to Unlicensed Personnel and Tasks Not Requiring Delegation in Independent Living Environments for Clients with Stable and Predictable Conditions).

(22) Designated Representative--This term has the meaning set forth in 40 TAC §41.103.

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

(24) DID--Determination of intellectual disability. This term has the meaning set forth in §304.102 of this title (relating to Definitions).

(25) DID report--Determination of intellectual disability report. This term has the meaning set forth in §304.102 of this title.

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

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

(A) needing emergency medical care;

(B) being removed from the individual's residence by law enforcement;

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

(28) EVV--Electronic visit verification. This term has the meaning set forth in 1 TAC §354.4003 (relating to Definitions).

(29) Exploitation--The illegal or improper act or process of using, or attempting to use, an individual or the resources of an individual for monetary or personal benefit, profit, or gain.

(30) 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.

(31) FMS--Financial management services.

(32) FMSA--Financial management services agency. As defined in 40 TAC §41.103, an entity that provides financial management services to an individual participating in the CDS option.

(33) Former military member--A person who served in the United States Army, Navy, Air Force, Marine Corps, Coast Guard, or Space Force:

(A) who declared and maintained Texas as the person's state of legal residence in the manner provided by the applicable military branch while on active duty; and

(B) who was killed in action or died while in service, or whose active duty otherwise ended.

(34) 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;

(D) that is not the residence of any persons 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

(E) that is not a setting described in §263.501(b) of this chapter (relating to Requirements for Home and Community-Based Service Settings).

(35) GRO--General residential operation. This term has the meaning set forth in Texas Human Resources Code §42.002.

(36) Group setting--A setting, other than an individual's residence, in which more than one individual or other person receives employment readiness, employment assistance, supported employment, or a similar service.

(37) [~~(36)~~] HCS--Home and Community-based Services. Services provided through the HCS Program operated by HHSC as authorized by CMS in accordance with §1915(c) of the Social Security Act.

(38) [~~(37)~~] Health maintenance activities--This term has the meaning set forth in 22 TAC §225.4 (relating to Definitions).

(39) [~~(38)~~] Health-related tasks--Specific tasks related to the needs of an individual, which can be delegated or assigned by a licensed health care professional under state law to be performed by a service provider of CFC PAS/HAB. This includes tasks delegated by an RN; health maintenance activities, that may not require delegation; and activities assigned to a service provider of CFC PAS/HAB by a licensed physical therapist, occupational therapist, or speech-language pathologist.

(40) [~~(39)~~] HHSC--The Texas Health and Human Services Commission.

(41) [~~(40)~~] Hospital--A public or private institution licensed or exempt from licensure in accordance with Texas Health and Safety Code (THSC) Chapters 13, 241, 261, or 552.

(42) [~~(41)~~] IADLs--Instrumental activities of daily living. Activities related to living independently in the community, including meal planning and preparation; managing finances; shopping for food, clothing, and other essential items; performing essential household chores; communicating by phone or other media; and traveling around and participating in the community.

(43) [~~(42)~~] ICAP--Inventory for Client and Agency Planning. An instrument designed to assess a person's needs, skills, and abilities.

(44) [~~(43)~~] ICF/IID--Intermediate care facility for individuals with an intellectual disability or related conditions. An ICF/IID is a facility in which ICF/IID Program services are provided and that is:

(A) licensed in accordance with THSC Chapter 252; or

(B) certified by HHSC, including a state supported living center.

(45) [~~(44)~~] ICF/IID Program--The Intermediate Care Facilities for Individuals with an Intellectual Disability or Related Conditions Program, which provides Medicaid-funded residential services to individuals with an intellectual disability or related conditions.

(46) [~~(45)~~] ID/RC Assessment--Intellectual Disability/Related Conditions Assessment. A form used by HHSC for level of care determination and level of need assignment.

(47) [~~(46)~~] Implementation plan--A written document developed by a program provider for an individual, for each HCS Program service, except supported home living, and for each CFC service, except CFC support management, on the individual's IPC to be provided by the program provider. An implementation plan includes:

(A) a list of outcomes identified in the person-directed plan that will be addressed using HCS Program services and CFC 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;

(D) the number of units of HCS Program services and CFC services needed to complete each objective;

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

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

(48) [~~(47)~~] In person or in-person--Within the physical presence of another person who is awake. In person or in-person does not include using videoconferencing or a telephone.

(49) [~~(48)~~] Individual--A person enrolled in the HCS Program.

(50) [~~(49)~~] Initial IPC--The first IPC for an individual developed before the individual's enrollment into the HCS Program.

(51) [~~(50)~~] Inpatient chemical dependency treatment facility--A facility licensed in accordance with THSC Chapter 464, Facilities Treating Persons with a Chemical Dependency.

(52) [~~(51)~~] Intellectual disability--This term has the meaning set forth in §304.102 of this title.

(53) [~~(52)~~] IPC--Individual plan of care. A written plan that:

(A) states:

(i) the type and amount of each HCS Program service and each CFC service, except for CFC support management, to be provided to the individual during an IPC year;

(ii) the services and supports to be provided to the individual through resources other than HCS Program services or CFC services, including natural supports, medical services, and educational services; and

(iii) if an individual will receive CFC support management; and

(B) is authorized by HHSC.

(54) [~~(53)~~] IPC cost--Estimated annual cost of HCS Program services included on an IPC.

(55) [~~(54)~~] IPC year--The effective period of an initial IPC and renewal IPC as described in this paragraph.

(A) Except as provided in subparagraph (B) of this paragraph, the IPC year for an initial and renewal IPC is a 365-calendar day period starting on the begin date of the initial or renewal IPC.

(56) Job task-oriented--Focused on developing a skill related to a specific type of employment.

(57) [~~(55)~~] LAR--Legally authorized representative. A person authorized by law to act on behalf of another person with regard to a matter described in this chapter, including a parent, guardian, or managing conservator of a minor; a guardian of an adult; an agent appointed under a power of attorney; or a representative payee appointed by the Social Security Administration. An LAR, such as an agent appointed under a power of attorney or representative payee appointed by the Social Security Administration, may have limited authority to act on behalf of a person.

(58) [~~(56)~~] LIDDA--Local intellectual and developmental disability authority. An entity designated by the executive commissioner of HHSC, in accordance with THSC §533A.035.

(59) [~~(57)~~] LOC--Level of care. A determination given to an applicant or individual as part of the eligibility determination process based on data submitted on the ID/RC Assessment.

(60) [~~(58)~~] LON--Level of need. An assignment given by HHSC to an individual upon which reimbursement for host home/companion care, supervised living, residential support, in-home day habilitation, and day habilitation is based.

(61) [~~(59)~~] Managed care organization--This term has the meaning set forth in Texas Government Code §536.001.

(62) [~~(60)~~] MAO Medicaid--Medical Assistance Only Medicaid. A type of Medicaid by which an applicant or individual qualifies financially for Medicaid assistance but does not receive Supplemental Security Income (SSI) benefits.

(63) [~~(61)~~] Medicaid HCBS--Medicaid home and community-based services. Medicaid services provided to an individual in an individual's home and community, rather than in a facility.

(64) [~~(62)~~] Mental health facility--A facility licensed in accordance with THSC Chapter 577, Private Mental Hospitals and Other Mental Health Facilities.

(65) [~~(63)~~] Military family member--A person who is the spouse or child (regardless of age) of:

(A) a military member; or

(B) a former military member.

(66) [~~(64)~~] Military member--A member of the United States military serving in the Army, Navy, Air Force, Marine Corps, Coast Guard, or Space Force on active duty who has declared and maintains Texas as the member's state of legal residence in the manner provided by the applicable military branch.

(67) [~~(65)~~] Natural supports--Unpaid persons, including family members, volunteers, neighbors, and friends, who voluntarily assist an individual to achieve the individual's identified goals.

(68) [~~(66)~~] Neglect--A negligent act or omission that caused physical or emotional injury or death to an individual or placed an individual at risk of physical or emotional injury or death.

(69) [~~(67)~~] Nursing facility--A facility licensed in accordance with THSC Chapter 242.

(70) [~~(68)~~] PDP--Person-directed plan. A plan developed with an applicant or individual and LAR using an HHSC form that:

(B) includes the setting for each service, which must be selected by the individual or LAR from setting options.

(71) [~~(69)~~] Performance contract--A written agreement between HHSC and a LIDDA for the performance of delegated functions, including those described in THSC §533A.035.

(72) [~~(70)~~] Permanency planner--A person who:

(A) develops a permanency plan using the HHSC Permanency Planning Instrument for Children Under 22 Years of Age form; and

(B) performs other permanency planning activities for an applicant or individual under 22 years of age.

(73) [~~(71)~~] 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.

(74) [~~(72)~~] Physical abuse--Any of the following:

(B) an act of inappropriate or excessive force or corporal punishment, regardless of whether the act results in a physical injury to an individual;

(D) seclusion.

(75) [~~(73)~~] Platform--This term has the meaning set forth in Texas Government Code §531.001(4-d).

(76) [~~(74)~~] Post-move monitoring visit--A visit conducted by the service coordinator in accordance with the Intellectual and Developmental Disability Preadmission Screening and Resident Review (IDD-PASRR) Handbook.

(77) [~~(75)~~] Pre-enrollment minor home modifications assessment--An assessment performed by a licensed professional as required by the HCS Program Billing Requirements to determine the need for pre-enrollment minor home modifications.

(78) [~~(76)~~] Pre-move site review--A review conducted by the service coordinator in accordance with HHSC's IDD PASRR Handbook.

(79) [~~(77)~~] Professional therapies--Services that consist of the following:

(A) audiology;

(B) occupational therapy;

(D) speech and language pathology;

(E) behavioral support;

(F) cognitive rehabilitation therapy;

(G) dietary services; and

(H) social work.

(80) [~~(78)~~] Program provider--A person, as defined in 40 TAC §49.102 (relating to Definitions), that has a contract with HHSC to provide HCS Program services, excluding an FMSA.

(81) [~~(79)~~] Provisional contract--A contract that HHSC enters into with a program provider in accordance with 40 TAC §49.208 (relating to Provisional Contract Application Approval) that has a term of no more than three years, not including any extension agreed to in accordance with 40 TAC §49.208(e).

(82) [~~(80)~~] Related condition--A severe and chronic disability that:

(A) is attributed to:

(i) cerebral palsy or epilepsy; or

(B) is manifested before the individual reaches age 22;

(D) results in substantial functional limitation in at least three of the following areas of major life activity:

(i) self-care;

(ii) understanding and use of language;

(iii) learning;

(iv) mobility;

(v) self-direction; and

(vi) capacity for independent living.

(83) [~~(81)~~] Relative--A person related to another person within the fourth degree of consanguinity or within the second degree of affinity. A more detailed explanation of this term is included in the HCS Program Billing Requirements.

(84) [~~(82)~~] Renewal IPC--An IPC developed for an individual in accordance with §263.302(a) of this chapter (relating to Renewal and Revision of an IPC).

(85) [~~(83)~~] Residential child care facility--This term has the meaning set forth in Texas Human Resources Code §42.002.

(86) [~~(84)~~] Revised IPC--An initial IPC or a renewal IPC that is revised during an IPC year in accordance with §263.302(b) or (d) of this chapter to add a new HCS Program service or CFC service or change the amount of an existing service.

(87) [~~(85)~~] RN--Registered nurse. A person licensed to practice professional nursing in accordance with Texas Occupations Code Chapter 301.

(88) [~~(86)~~] Service backup plan--A plan that ensures continuity of critical program services if service delivery is interrupted.

(89) [~~(87)~~] Service coordination--A service as defined in §331.5 of this title (relating to Definitions).

(90) [~~(88)~~] Service coordinator--An employee of a LIDDA who provides service coordination to an individual.

(91) [~~(89)~~] Service planning team--One of the following:

(A) for an applicant or individual other than one described in subparagraph (B) or (C) of this paragraph, a planning team consisting of:

(i) an applicant or individual and LAR;

(ii) service coordinator; and

(iii) other persons chosen by the applicant or individual or LAR, for example, a staff member of the program provider, a family member, a friend, a teacher, or if applicable, the permanency planner;

(B) for an applicant 21 years of age or older who is residing in a nursing facility and enrolling in the HCS Program, a planning team consisting of:

(i) the applicant and LAR;

(ii) the service coordinator;

(iii) if the applicant is at least 21 years of age but younger than 22 years of age, the permanency planner;

(iv) a staff member of the program provider;

(v) providers of specialized services;

(vi) a nursing facility staff person who is familiar with the applicant's needs;

(vii) other persons chosen by the applicant or LAR, for example, a family member, a friend, or a teacher; and

(viii) at the discretion of the LIDDA and with the approval of the individual or LAR, other persons who are directly involved in the delivery of services to persons with an intellectual or developmental disability; or

(C) for an individual 21 years of age or older who has enrolled in the HCS Program from a nursing facility or ICF/IID or has enrolled in the HCS Program as a diversion from admission to an institution, including a nursing facility or ICF/IID, for 365 calendar days after enrollment, a planning team consisting of:

(i) the individual and LAR;

(ii) the service coordinator;

(iii) if the individual is at least 21 years of age but younger than 22 years of age and resides in a three-person residence or four-person residence, the permanency planner;

(iv) a staff member of the program provider;

(v) other persons chosen by the individual or LAR, for example, a family member, a friend, or a teacher; and

(vi) at the discretion of the LIDDA and with the approval of the individual or LAR, other persons who are directly involved in the delivery of services to persons with an intellectual or developmental disability.

(92) [~~(90)~~] Service provider--A person, who may be a staff member, who directly provides an HCS Program service or CFC service to an individual.

(93) [~~(91)~~] Sexual abuse--Any of the following:

(A) sexual exploitation of an individual;

(B) non-consensual or unwelcomed sexual activity with an individual; or

(94) [~~(92)~~] Sexual activity--An activity that is sexual in nature, including kissing, hugging, stroking, or fondling with sexual intent.

(95) [~~(93)~~] Sexual exploitation--A pattern, practice, or scheme of conduct against an individual that can reasonably be construed as being for the purposes of sexual arousal or gratification of any person:

(A) which may include sexual contact; and

(B) does not include obtaining information about an individual's sexual history within standard accepted clinical practice.

(96) [~~(94)~~] Specialized services--This term has the meaning set forth in §303.102 of this title (relating to Definitions).

(97) [~~(95)~~] Staff member--An employee or contractor of an HCS program provider.

(98) [~~(96)~~] Standard contract--A contract that HHSC enters into with a program provider in accordance with 40 TAC §49.209 (relating to Standard Contract) that has a term of no more than five years, not including any extension agreed to in accordance with 40 TAC §49.209(d).

(99) [~~(97)~~] State supported living center--A state-supported and structured residential facility operated by HHSC to provide to persons with an intellectual disability 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 HHSC.

(100) [~~(98)~~] Store and forward technology--This term has the meaning set forth in Texas Occupations Code §111.001(2).

(101) [~~(99)~~] Supported Decision-Making Agreement--This term has the meaning set forth in Texas Estates Code §1357.002(4).

(102) [~~(100)~~] Synchronous audio-visual--An interactive, two-way audio and video communication platform that:

(A) allows a service to be provided to an individual in real time; and

(B) conforms to the privacy requirements under the Health Insurance Portability and Accountability Act.

(103) [~~(101)~~] 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.

(104) [~~(102)~~] TANF--Temporary Assistance for Needy Families.

(105) [~~(103)~~] TAS--Transition assistance services.

(106) [~~(104)~~] Telehealth service--This term has the meaning set forth in Texas Occupations Code §111.001.

(107) [~~(105)~~] Temporary admission--A stay in a facility listed in §263.705(a) of this chapter (relating to Suspension of HCS Program Services and CFC Services) for 270 calendar days or less or, if an extension is granted in accordance with §263.705(h) of this chapter, a stay in such a facility for more than 270 calendar days.

(108) [~~(106)~~] 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 setting described in §263.501(b) of this chapter.

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

(110) [~~(108)~~] Transfer IPC--An IPC that is developed in accordance with §263.701 of this chapter (relating to Process for Individual to Transfer to a Different Program Provider or FMSA) and §263.702 of this chapter (relating to Process for Individual to Receive a Service Through the CDS Option that the Individual is Receiving from a Program Provider) when an individual transfers to another program provider or chooses a different service delivery option.

(111) [~~(109)~~] Transition plan--A written plan developed in accordance with §303.701 of this title (relating to Transition Planning for a Designated Resident) for an applicant residing in a nursing facility who is enrolling in the HCS Program.

(112) [~~(110)~~] Transportation plan--A written plan based on person-directed planning and developed with an applicant or individual using the HHSC Individual Transportation Plan form available on the HHSC website. A transportation plan is used to document how supported home living will be delivered to support an individual's desired outcomes and purposes for transportation as identified in the PDP.

(113) [~~(111)~~] Vendor hold--A temporary suspension of payments that are due to a program provider under a contract.

(114) [~~(112)~~] Verbal or emotional abuse--Any act or use of verbal or other communication, including gestures:

(A) to:

(i) harass, intimidate, humiliate, or degrade an individual; or

(ii) threaten an individual with physical or emotional harm; and

(B) that:

(i) results in observable distress or harm to the individual; or

(ii) is of such a serious nature that a reasonable person would consider it harmful or a cause of distress.

(115) [~~(113)~~] Videoconferencing--An interactive, two-way audio and video communication:

(A) used to conduct a meeting between two or more persons who are in different locations; and

(B) that conforms to the privacy requirements under the Health Insurance Portability and Accountability Act.

(116) [~~(114)~~] Volunteer--A person who works for a program provider without compensation, other than reimbursement for actual expenses.

§263.5.Description of HCS Program Services.

(a) HCS Program services are described in this section and in Appendix C of the HCS Program waiver application approved by CMS and available on the HHSC website.

(1) Adaptive aids are devices, controls, or items that are necessary to address specific needs identified in an individual's service plan. Adaptive aids enable an individual to maintain or increase the ability to perform ADLs or the ability to perceive, control, or communicate with the environment in which the individual lives.

(2) Audiology is the provision of audiology as defined in the Texas Occupations Code Chapter 401.

(3) Speech and language pathology is the provision of speech-language pathology as defined in the Texas Occupations Code Chapter 401.

(4) Occupational therapy is the provision of occupational therapy as described in the Texas Occupations Code Chapter 454.

(5) Physical therapy is the provision of physical therapy as defined in the Texas Occupations Code Chapter 453.

(6) Dietary services are the provision of nutrition services as defined in the Texas Occupations Code Chapter 701.

(7) Behavioral support is the provision of specialized interventions that:

(B) improve an individual's quality of life.

(8) Social work is the provision of social work as defined in Texas Occupations Code Chapter 505.

(9) Cognitive rehabilitation therapy is assistance to an individual in learning or relearning cognitive skills that have been lost or altered as a result of damage to brain cells/chemistry in order to enable the individual to compensate for the lost cognitive functions, including reinforcing, strengthening, or reestablishing previously learned patterns of behavior, or establishing new patterns of cognitive activity or compensatory mechanisms for impaired neurological systems.

(10) Day habilitation is assistance with acquiring, retaining, or improving self-help, socialization, and adaptive skills provided in a location other than the residence of an individual. Day habilitation does not include in-home day habilitation.

(11) In-home day habilitation is assistance with acquiring, retaining, or improving self-help, socialization, and adaptive skills provided in an individual's residence.

(12) Dental treatment is:

(A) emergency dental treatment;

(B) preventive dental treatment;

(D) orthodontic dental treatment, excluding cosmetic orthodontia.

(13) Minor home modifications are physical adaptations to an individual's home to address specific needs identified by an individual's service planning team and include pre-enrollment minor home modifications which are modifications completed before an applicant is discharged from a nursing facility, an ICF/IID, or a GRO and before the effective date of the applicant's enrollment in the HCS Program.

(14) Licensed vocational nursing is the provision of licensed vocational nursing as defined in the Texas Occupations Code Chapter 301.

(15) Registered nursing is the provision of professional nursing as defined in the Texas Occupations Code Chapter 301.

(16) Specialized registered nursing is the provision of registered nursing to an individual who has a tracheostomy or is dependent on a ventilator.

(17) Specialized licensed vocational nursing is the provision of licensed vocational nursing to an individual who has a tracheostomy or is dependent on a ventilator.

(18) Supported home living is transportation of an individual with a residential type of "own/family home."

(19) Host home/companion care is residential assistance provided in a residence that is owned or leased by the service provider of host home/companion care or the individual and is not owned or leased by the program provider. The service provider of host home/companion care must live in the same residence as the individual receiving the service.

(20) Supervised living is residential assistance provided in a three-person residence or four-person residence in which service providers are present in the residence and are able to respond to the needs of individuals during normal sleeping hours.

(21) Residential support is residential assistance provided in a three-person residence or four-person residence in which service providers are present and awake in the residence whenever an individual is present in the residence.

(22) Respite is temporary relief for an unpaid caregiver in a location other than the individual's home for an individual who has a residential type of "own/family home."

(23) In-home respite is temporary relief for an unpaid caregiver in the individual's home for an individual who has a residential type of "own/family home."

(24) Employment assistance is assistance to help an individual locate paid employment in the community.

(25) Supported employment is assistance, in order to sustain competitive employment, to an individual who, because of a disability, requires intensive, ongoing support to be self-employed, work from home, or perform in a work setting at which individuals without disabilities are employed.

(26) Employment readiness is assistance that prepares an individual to participate in employment. Employment readiness services are not job-task oriented.

(27) [~~(26)~~] TAS is assistance to an applicant in setting up a household in the community before being discharged from a nursing facility, an ICF/IID, or a GRO and before enrolling in the HCS Program and consists of:

(A) for an applicant whose initial IPC does not include residential support, supervised living, or host home/companion care:

(i) paying security deposits required to lease a home, including an apartment, or to establish utility services for a home;

(ii) purchasing essential furnishings for a home, including a table, a bed, chairs, window blinds, eating utensils, and food preparation items;

(iii) paying for expenses required to move personal items, including furniture and clothing, into a home;

(iv) paying for services to ensure the health and safety of the applicant in a home, including pest eradication, allergen control, or a one-time cleaning before occupancy; and

(v) purchasing essential supplies for a home, including toilet paper, towels, and bed linens; and

(B) for an applicant whose initial IPC includes residential support, supervised living, or host home/companion care:

(i) purchasing bedroom furniture;

(ii) purchasing personal linens for the bedroom and bathroom; and

(iii) paying for allergen control.

(b) The services described in this subsection are for an individual who is receiving at least one HCS Program service through the CDS option.

(1) FMS is a service defined in 40 TAC §41.103 (relating to Definitions).

(2) Support consultation is a service defined in 40 TAC §41.103.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on July 18, 2024.

TRD-202403186

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: September 1, 2024

For further information, please call: (512) 438-2910

SUBCHAPTER B. ELIGIBILITY, ENROLLMENT, AND REVIEW

26 TAC §263.104

STATUTORY AUTHORITY

The amendment implements Texas Human Resources Code §32.0755.

§263.104.Process for Enrollment of Applicants.

(a) HHSC notifies a LIDDA, in writing, when the opportunity for enrollment in the HCS Program becomes available in the LIDDA's local service area and directs the LIDDA to offer enrollment to an applicant:

(1) whose interest list date, assigned in accordance with §263.103 of this subchapter (relating to HCS Interest List), is earliest on the statewide interest list for the HCS Program maintained by HHSC; or

(2) who is a member of a target group identified in the HCS Program waiver application approved by CMS.

(b) Except as provided in subsection (c) of this section, a LIDDA must offer enrollment in the HCS Program in writing and deliver it to the applicant or LAR by United States mail or by hand delivery.

(c) A LIDDA must offer enrollment in the HCS Program to an applicant described in subsection (a)(2) of this section in accordance with HHSC's procedures.

(d) A LIDDA must include in a written offer that is made in accordance with subsection (a)(1) of this section:

(1) a statement that:

(A) if the applicant or LAR does not respond to the offer of enrollment in the HCS Program within 30 calendar days after the LIDDA's written offer, the LIDDA withdraws the offer; and

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

(2) the HHSC Deadline Notification form, which is available on the HHSC website.

(e) If an applicant or LAR responds to an offer of enrollment in the HCS Program, a LIDDA 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 written explanation of the services and supports for which the applicant may be eligible, including the ICF/IID Program, both state supported living centers and community-based facilities, waiver programs authorized under §1915(c) of the Social Security Act, and other community-based services and supports, using the HHSC Explanation of Services and Supports document, which is available on the HHSC website;

(2) provide the applicant and LAR both an oral and a written explanation of all HCS Program services and CFC services using the HHSC Understanding Program Eligibility and Services form, which is available on the HHSC website; and

(3) give the applicant or LAR the HHSC Waiver Program Verification of Freedom of Choice form, which is available on the HHSC website, to document the applicant's choice between the HCS Program or the ICF/IID Program.

(f) A LIDDA must withdraw an offer of enrollment in the HCS Program made to an applicant or LAR if:

(3) within 30 calendar days after the applicant or LAR receives the contact information for all program providers in the LIDDA's local service area in accordance with subsection (j)(3) of this section, the applicant or LAR does not document the choice of a program provider using the HHSC Documentation of Provider Choice form, which is available on the HHSC website;

(4) the applicant or LAR does not complete the necessary activities to finalize the enrollment process and HHSC has approved the withdrawal of the offer; or

(5) the applicant has moved out of the State of Texas.

(g) If a LIDDA withdraws an offer of enrollment in the HCS Program made to an applicant, the LIDDA must notify the applicant or LAR of such action, in writing, by certified United States mail.

(h) If an applicant is currently receiving services from a LIDDA that are funded by general revenue and the applicant or LAR declines the offer of enrollment in the HCS Program, the LIDDA must terminate those services funded by general revenue that are similar to services provided in the HCS Program.

(j) If an applicant or LAR accepts the offer of enrollment in the HCS Program, the LIDDA must compile and maintain information necessary to process the applicant's request for enrollment.

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

(2) The LIDDA must complete an ID/RC Assessment in accordance with §263.105 of this subchapter (relating to LOC Determination) and §263.106 of this subchapter (relating to LON Assignment).

(A) The LIDDA must:

(i) do one of the following:

(I) conduct a DID in accordance with §304.401 of this title (relating to Conducting a Determination of Intellectual Disability) except that the following activities must be conducted in person:

(-a-) a standardized measure of the individual's intellectual functioning using an appropriate test based on the characteristics of the individual; and

(-b-) a standardized measure of the individual's adaptive abilities and deficits reported as the individual's adaptive behavior level; or

(II) review and endorse a DID report in accordance with §304.403 of this title (relating to Review and Endorsement of a Determination of Intellectual Disability Report); and

(ii) determine whether the applicant has been diagnosed by a licensed physician as having a related condition.

(B) The LIDDA must:

(i) conduct an ICAP assessment in person; and

(ii) recommend an LON assignment to HHSC in accordance with §263.106 of this subchapter.

(C) The LIDDA must enter the information from the completed ID/RC Assessment and electronically submit the information to HHSC for approval in accordance with §263.105(a) of this subchapter and §263.106(a) of this subchapter and, if applicable, submit supporting documentation as required by §263.107(c) of this subchapter (relating to HHSC Review of LON).

(3) The LIDDA must provide names and contact information to the applicant or LAR for all program providers in the LIDDA's local service area.

(4) The LIDDA must assign a service coordinator who, together with other members of the applicant's service planning team, must:

(A) develop a PDP;

(5) The CFC PAS/HAB Assessment form required by paragraph (4)(B) of this subsection must be completed in person with the individual unless the following conditions are met in which case the form may be completed by videoconferencing or telephone:

(B) the individual receives appropriate in-person support during the completion of the form by videoconferencing or telephone.

(6) A service coordinator must discuss the CDS option with the applicant or LAR in accordance with §263.401(a) and (b) of this chapter (relating to CDS Option).

(k) A service coordinator must:

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

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

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

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

(5) determine whether the applicant meets the following criteria:

(A) is being discharged from a nursing facility, an ICF/IID, or a GRO; and

(B) anticipates needing TAS;

(6) if the service coordinator determines that the applicant meets the criteria described in paragraph (5) of this subsection:

(A) complete, with the applicant or LAR and the selected program provider, the HHSC Transition Assistance Services (TAS) Assessment and Authorization form, which is available on the HHSC website, in accordance with the form's instructions, which includes:

(i) identifying the TAS the applicant needs; and

(ii) estimating the monetary amount for each transition assistance service identified, which must be within the service limit described in §263.304(a)(6) of this chapter (relating to Service Limits);

(B) submit the completed form to HHSC to determine if TAS is authorized;

(D) include the TAS and the monetary amount authorized by HHSC on the applicant's initial IPC;

(7) determine whether an applicant meets the following criteria:

(A) is being discharged from a nursing facility, an ICF/IID, or a GRO;

(B) has not met the maximum service limit for minor home modifications as described in §263.304(a)(3)(A) of this chapter; and

(C) anticipates needing pre-enrollment minor home modifications and a pre-enrollment minor home modifications assessment;

(8) if the service coordinator determines that an applicant meets the criteria described in paragraph (7) of this subsection:

(A) complete, with the applicant or LAR and selected program provider, the HHSC Home and Community-based Services (HCS) Program Pre-enrollment MHM Authorization Request form, which is available on the HHSC website, in accordance with the form's instructions, which includes:

(i) identifying the pre-enrollment minor home modifications the applicant needs;

(ii) identifying the pre-enrollment minor home modifications assessments conducted by the program provider; and

(iii) based on documentation provided by the program provider as required by the HCS Program Billing Requirements, stating the cost of:

(I) the pre-enrollment minor home modifications identified on the form, which must be within the service limit described in §263.304(a)(3)(A) of this chapter; and

(II) the pre-enrollment minor home modifications assessments conducted;

(B) submit the completed form to HHSC to determine if pre-enrollment minor home modification and pre-enrollment minor home modifications assessments are authorized;

(D) include the pre-enrollment minor home modifications, pre-enrollment minor home modifications assessments, and the monetary amount for these services authorized by HHSC on the applicant's initial IPC;

(9) if an applicant or LAR chooses a program provider to deliver supported home living, nursing, host home/companion care, residential support, supervised living, respite, employment assistance, supported employment, employment readiness, in-home day habilitation, day habilitation, or CFC PAS/HAB, ensure that the initial IPC includes a sufficient number of RN nursing units for the program provider's RN to perform a comprehensive nursing assessment unless:

(A) nursing services are not on the IPC and the applicant or LAR and selected program provider have determined that no nursing tasks will be performed by an unlicensed service provider as documented on the HHSC Nursing Task Screening Tool form; or

(B) an unlicensed service provider will perform a nursing task and a physician has delegated the task as a medical act under Texas Occupations Code Chapter 157, as documented by the physician;

(10) if an applicant or LAR refuses to include on the initial IPC a sufficient number of RN nursing units for the program provider's RN to perform a comprehensive nursing assessment as required by paragraph (9) of this subsection:

(A) inform the applicant or LAR that the refusal:

(i) will result in the applicant not receiving nursing services from the program provider; and

(ii) if the applicant needs host home/companion care, residential support, supervised living, supported home living, respite, employment assistance, supported employment, employment readiness, in-home day habilitation, day habilitation, or CFC PAS/HAB from the program provider, will result in the individual not receiving that service unless:

(I) the program provider's unlicensed service provider does not perform nursing tasks in the provision of the service; and

(II) the program provider determines that it can ensure the applicant's health, safety, and welfare in the provision of the service; and

(B) document the refusal of the RN nursing units on the initial IPC for a comprehensive nursing assessment by the program provider's RN in the applicant's record;

(11) ensure that the applicant or LAR signs and dates the initial IPC and provides the signed and dated IPC to the service coordinator in person, electronically, by fax, or by United States mail;

(12) ensure that the selected program provider signs and dates the initial IPC, demonstrating agreement that the services will be provided to the applicant;

(13) sign and date the initial IPC, which indicates that the service coordinator agrees that the requirements described in §263.301(c) of this chapter have been met;

(14) using the HHSC Understanding Program Eligibility and Services form, which is available on the HHSC website, provide an oral and written explanation to the applicant or LAR:

(A) of the eligibility requirements for HCS Program services as described in §263.101(a) of this subchapter (relating to Eligibility Criteria for HCS Program Services and CFC Services);

(B) if the applicant's PDP includes CFC services:

(i) of the eligibility requirements for CFC services as described in §263.101(c) of this subchapter to applicants who do not receive MAO Medicaid; and

(ii) of the eligibility requirements for CFC services as described in §263.101(d) of this subchapter to applicants who receive MAO Medicaid;

(i) the individual no longer meets the eligibility criteria described in §263.101(a) of this subchapter; or

(ii) the individual or LAR requests termination of HCS Program services; and

(D) if the applicant's PDP includes CFC services, that CFC services may be terminated if:

(i) the individual no longer meets the eligibility criteria described in §263.101(c) or (d) of this subchapter; or

(ii) the individual or LAR requests termination of CFC services.

(l) A LIDDA must conduct permanency planning in accordance with §263.902(a) - (f) of this chapter (relating to Permanency Planning).

(m) After an initial IPC is finalized and signed in accordance with subsection (k) of this section, the LIDDA must:

(1) enter the information from the initial IPC in the HHSC data system and electronically submit it to HHSC;

(2) keep the original initial IPC in the individual's record;

(3) ensure the information from the initial IPC entered in the HHSC data system and electronically submitted to HHSC contains information identical to the information on the initial IPC; and

(4) submit other required enrollment information to HHSC.

(n) HHSC notifies the applicant or LAR, the selected program provider, the FMSA, if applicable, and the LIDDA of its approval or denial of the applicant's enrollment. When the enrollment is approved, HHSC authorizes the applicant's enrollment in the HCS Program through the HHSC data system and issues an enrollment letter to the applicant that includes the effective date of the applicant's enrollment in the HCS Program.

(o) Before the applicant's service begin date, the LIDDA must provide to the selected program provider and FMSA, if applicable:

(1) copies of all enrollment documentation and associated supporting documentation, including relevant assessment results and recommendations;

(2) the completed ID/RC Assessment;

(3) the initial IPC;

(4) the applicant's PDP; and

(5) if CFC PAS/HAB is included on the PDP, the completed HHSC HCS/TxHmL CFC PAS/HAB Assessment form.

(p) Except for the provision of TAS, pre-enrollment minor home modifications, and a pre-enrollment minor home modifications assessment, the selected program provider must not initiate services until notified of HHSC's approval of the applicant's enrollment.

(q) The selected program provider and the individual or LAR must develop:

(1) an implementation plan for:

(A) HCS Program services, except for supported home living, that is based on the individual's PDP and IPC; and

(2) a transportation plan, if supported home living is included on the PDP.

(r) A LIDDA must retain in an applicant's record:

(1) the HHSC Waiver Program Verification of Freedom of Choice form;

(2) the HHSC Documentation of Provider Choice form, if applicable;

(3) the HHSC Deadline Notification form; and

(4) any other correspondence related to the offer of enrollment in the HCS Program.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on July 18, 2024.

TRD-202403187

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: September 1, 2024

For further information, please call: (512) 438-2910

SUBCHAPTER D. DEVELOPMENT AND REVIEW OF AN IPC

26 TAC §263.301, §263.304

STATUTORY AUTHORITY

The amendments implement Texas Human Resources Code §32.0755.

§263.301.IPC Requirements.

(a) An IPC must be based on the PDP and specify:

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

(2) the services and supports to be provided to the individual through resources other than HCS Program services or CFC services during an IPC year, including natural supports, medical services, day activity, and educational services;

(3) if an individual will receive CFC support management; and

(4) if there are any HCS Program services or CFC services identified on the PDP as critical, requiring a service backup plan.

(b) If an applicant's or individual's IPC includes only CFC PAS/HAB to be delivered through the CDS option, a service coordinator must include in the IPC:

(1) CFC FMS instead of FMS; and

(2) if the applicant or individual will receive support consultation, CFC support consultation instead of support consultation.

(1) must be necessary to protect the individual's health and welfare in the community;

(2) must not be available to the individual through any other source, including the Medicaid State Plan, other governmental programs, private insurance, or the individual's natural supports;

(3) must be the most appropriate type and amount to meet the individual's needs;

(4) must be cost effective;

(5) must be necessary to enable community integration and maximize independence;

(6) if an adaptive aid or minor home modification, must:

(A) be included on HHSC's approved list in the HCS Program Billing Requirements; and

(B) be within the service limit described in §263.304 of this subchapter (relating to Service Limits);

(7) if an adaptive aid costing $500 or more, must be supported by a written assessment from a licensed professional specified by HHSC in the HCS Program Billing Requirements;

(8) if a minor home modification costing $1,000 or more, must be supported by a written assessment from a licensed professional specified by HHSC in the HCS Program Billing Requirements;

(9) if dental treatment, must be within the service limit described in §263.304 of this subchapter;

(10) if respite, must be within the service limit described in §263.304 of this subchapter;

(11) if TAS, must be:

(A) supported by a Transition Assistance Services (TAS) Assessment and Authorization form authorized by HHSC; and

(B) within the service limit described in §263.304(a)(6)(A) or (B) of this subchapter;

(12) if pre-enrollment minor home modifications, must be:

(A) supported by a written assessment from a licensed professional if required by the HCS Program Billing Requirements;

(B) supported by a Home and Community-based Services (HCS) Program Pre-enrollment MHM Authorization Request form authorized by HHSC;

(13) if a pre-enrollment minor home modifications assessment, must be supported by a Home and Community-based Services (HCS) Program Pre-enrollment MHM Authorization Request form authorized by HHSC; [~~and~~]

(14) if CFC PAS/HAB, must be supported by the HHSC HCS/TxHmL CFC PAS/HAB Assessment form; and [.]

(15) if employment readiness, must be:

(A) supported by an HHSC Employment First Discovery Tool that is completed in accordance with §284.105 of this title (relating to Uniform Process); and

(B) within the service limit described in §263.304 of this subchapter.

§263.304.Service Limits.

(a) The following limits apply to an individual's HCS Program services:

(1) for adaptive aids, $10,000 during an IPC year;

(2) for dental treatment, $2,000 during an IPC year;

(3) for minor home modifications and pre-enrollment minor home modifications combined:

(A) $7,500 during the time the individual is enrolled in the HCS Program, which may be paid in one or more IPC years; and

(B) a maximum of $300 for repair and maintenance during an IPC year;

(4) for respite and in-home respite combined, 300 hours during an IPC year;

(5) for day habilitation and in-home day habilitation combined, 260 units during an IPC year; [~~and~~]

(6) for TAS:

(A) $2,500 if the applicant's initial IPC does not include residential support, supervised living, or host home/companion care; or

(B) $1,000 if the applicant's initial IPC includes residential support, supervised living, or host home/companion care; and [.]

(7) for employment readiness and individualized skills and socialization combined:

(A) 1560 hours during an IPC year;

(B) six hours per calendar day; and

(b) An individual may receive TAS only once in the individual's lifetime.

(c) A program provider may request, in accordance with the HCS Program Billing Requirements, authorization of a requisition fee:

(1) for dental treatment that is in addition to the $2,000 service limit described in subsection (a)(2) of this section;

(2) for a minor home modification that is in addition to the $7,500 service limit described in subsection (a)(3)(A) of this section; or

(3) for an adaptive aid that is in addition to the $10,000 service limit described in subsection (a)(1) of this section.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on July 18, 2024.

TRD-202403188

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: September 1, 2024

For further information, please call: (512) 438-2910

SUBCHAPTER F. REQUIREMENTS FOR SERVICE SETTINGS AND PROGRAM PROVIDER OWNED OR CONTROLLED RESIDENTIAL SETTINGS

26 TAC §263.501

STATUTORY AUTHORITY

The amendment implements Texas Human Resources Code §32.0755.

§263.501.Requirements for Home and Community-Based Settings.

(a) A home and community-based setting is a setting in which an individual resides or receives HCS Program services or CFC services. A home and community-based setting must have all of the following qualities, based on the needs and preferences of an individual as documented in the individual's PDP.

(A) seek employment and work in a competitive integrated setting;

(B) engage in community life;

(D) receive services in the community.

(2) The setting is selected by the individual from among setting options, including non-disability specific settings and an option for a private unit in a setting in which residential support, supervised living, or host home/companion care is provided. The setting options are identified and documented in the PDP and are based on the individual's needs, preferences, and, for settings in which residential support, supervised living, or host home/companion care is provided, resources available for room and board.

(3) The setting ensures an individual's rights of privacy, dignity, and respect, and freedom from coercion and restraint.

(5) The setting facilitates individual choice regarding services and supports and the service providers who provide the services and supports.

(b) Except as provided in subsection (c) of this section, a program provider must ensure that HCS Program services and CFC services are not provided in a setting that is presumed to have the qualities of an institution. A setting is presumed to have the qualities of an institution if the setting:

(1) is located in a building in which a certified ICF/IID operated by a LIDDA or state supported living center is located but is distinct from the ICF/IID;

(2) is located in a building on the grounds of, or immediately adjacent to, a certified ICF/IID operated by a LIDDA or state supported living center;

(4) is located in a building on the grounds of, or immediately adjacent to, a hospital, a nursing facility, or other institution except for a licensed private ICF/IID; or

(5) has the effect of isolating individuals from the broader community of persons not receiving Medicaid HCBS.

(c) A program provider may provide an HCS Program service or a CFC service to an individual in a setting that is presumed to have the qualities of an institution as described in subsection (b) of this section, if CMS determines through a heightened scrutiny review that the setting:

(1) does not have the qualities of an institution; and

(2) does have the qualities of home and community-based settings.

(d) In addition to the requirements in subsection (a) of this section, a program provider must ensure that a group setting:

(1) allows an individual to:

(A) control the individual's schedule and activities;

(B) have access to the individual's food at any time; and

(2) is physically accessible and free of hazards to an individual.

(1) notify the service coordinator of the needed modification; and

(2) provide the service coordinator with the information described in §263.901(e)(21) of this chapter relating to (LIDDA Requirements for Providing Service Coordination in the HCS Program) as requested by the service coordinator.

(g) After the service planning team updates the PDP as required by subsection (f) of this section, the program provider may implement the modifications.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on July 18, 2024.

TRD-202403189

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: September 1, 2024

For further information, please call: (512) 438-2910

SUBCHAPTER G. REIMBURSEMENT BY HHSC

26 TAC §263.601

STATUTORY AUTHORITY

The amendment implements Texas Human Resources Code §32.0755.

§263.601.Program Provider Reimbursement.

The following requirements apply to program provider reimbursement.

(1) HHSC pays a program provider as described in this paragraph.

(A) HHSC pays for supported home living, professional therapies, nursing, respite, in-home respite, employment assistance, supported employment, and CFC PAS/HAB in accordance with the reimbursement rate for the specific service.

(B) HHSC pays for host home/companion care, residential support, supervised living, employment readiness, in-home day habilitation and day habilitation in accordance with the individual's LON and the reimbursement rate for the specific service.

(C) HHSC pays for adaptive aids, minor home modifications, and dental treatment based on the actual cost of the item and, if requested, a requisition fee in accordance with the HCS Program Billing Requirements available on the HHSC website.

(D) HHSC pays:

(i) for TAS based on a Transition Assistance Services (TAS) Assessment and Authorization form authorized by HHSC and the actual cost of the TAS as evidenced by purchase receipts required by the HCS Program Billing Requirements; and

(ii) if requested, a TAS service fee in accordance with the HCS Program Billing Requirements.

(E) HHSC pays for pre-enrollment minor home modifications and a pre-enrollment minor home modifications assessment based on a Home and Community-based Services (HCS) Program Pre-enrollment MHM Authorization Request form authorized by HHSC and the actual cost of the pre-enrollment minor home modifications and a pre-enrollment minor home modifications assessment, as evidenced by documentation required by the HCS Program Billing Requirements.

(F) Subject to the requirements in the HCS Program Billing Requirements, HHSC pays for TAS, pre-enrollment minor home modifications, and a pre-enrollment minor home modifications assessment regardless of whether the applicant enrolls with the program provider.

(G) HHSC pays for CFC ERS based on the actual cost of the service, not to exceed the reimbursement rate ceiling for CFC ERS.

(2) To be paid for the provision of a service, a program provider must submit a service claim that meets the requirements in 40 TAC §49.311 (relating to Claims Payment) and the HCS Program Billing Requirements or the CFC Billing Requirements for HCS and TxHmL Program Providers.

(3) If an individual's HCS Program services or CFC services are suspended or terminated a program provider must not submit a claim for services provided during the period of the individual's suspension or after the termination, except that the program provider may submit a claim for the first day of the individual's suspension or termination for the following services:

(A) in-home day habilitation;

(B) day habilitation;

(D) in-home respite;

(E) respite;

(F) employment assistance;

(G) supported employment;

(H) employment readiness;

(I) [~~(H)~~] professional therapies;

(J) [~~(I)~~] nursing; and

(K) [~~(J)~~] CFC PAS/HAB.

(4) If a 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 claim must be supported by a written assessment from a licensed professional specified by HHSC in the HCS Program Billing Requirements and other documentation as required by the HCS Program Billing Requirements.

(5) HHSC does not pay a program provider for:

(A) a service or recoups any payments made to the program provider for a service if:

(i) except for an individual receiving TAS, pre-enrollment minor home modifications, or a pre-enrollment minor home modifications assessment, the individual receiving the service was, at the time the service was provided, ineligible for the HCS Program or Medicaid benefits, or was an inpatient of a hospital, nursing facility, or ICF/IID;

(ii) except for TAS, pre-enrollment minor home modifications, and a pre-enrollment minor home modifications assessment:

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

(II) the service was provided during a period of time for which there was not a signed and dated ID/RC Assessment for the individual;

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

(IV) the service was not provided in accordance with a signed, dated, and authorized IPC meeting the requirements set forth in §263.301(c) of this chapter (relating to IPC Requirements);

(V) the service was not provided in accordance with the individual's PDP or implementation plan;

(VI) the service was provided before the individual's enrollment date into the HCS Program; or

(VII) the service was not included on the signed, dated, and authorized IPC of the individual in effect at the time the service was provided, except as permitted by §263.302(d) of this chapter (relating to Renewal and Revision of an IPC);

(iii) the service was not provided in accordance with the HCS Program Billing Requirements or the CFC Billing Requirements for HCS and TxHmL Program Providers;

(iv) the service was not documented in accordance with the HCS Program Billing Requirements or the CFC Billing Requirements for HCS and TxHmL Program Providers;

(v) the program provider did not comply with 40 TAC §49.305 (relating to Records);

(vi) the claim for the service was not prepared and submitted in accordance with the HCS Program Billing Requirements or the CFC Billing Requirements for HCS and TxHmL Program Providers;

(vii) the claim for the service did not meet the requirements in 40 TAC §49.311 (relating to Claims Payment) or the HCS Program Billing Requirements or the CFC Billing Requirements for HCS and TxHmL Program Providers;

(viii) the program provider does not have the documentation described in paragraph (3) of this section;

(ix) HHSC determines that the service 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;

(x) the service was provided by a service provider who did not meet the qualifications to provide the service as described in the HCS Program Billing Requirements or the CFC Billing Requirements for HCS and TxHmL Program Providers;

(xi) the service was paid at an incorrect LON because the information entered in the HHSC data system from a completed ID/RC Assessment was not identical to the information on the completed ID/RC Assessment; or

(xii) the service was not provided;

(B) supervised living or residential support, if the program provider provided the supervised living or residential support service in a residence in which four individuals or other persons receiving similar services live without HHSC's approval as described in rules governing the HCS Program;

(C) employment assistance, if before including the employment assistance on an individual's IPC, the program provider did not ensure and maintain documentation in the individual's record that employment assistance was not available to the individual under a program funded under §110 of the Rehabilitation Act of 1973 or under a program funded under the Individuals with Disabilities Education Act (20 U.S.C. §1401 et seq.);

(D) supported employment, if before including the supported employment on an individual's IPC, the program provider did not ensure and maintain documentation in the individual's record that supported employment was not available to the individual under a program funded under the Individuals with Disabilities Education Act (20 U.S.C. §1401 et seq.);

(E) employment readiness, if before including the employment readiness on an individual's IPC, the program provider did not ensure and maintain documentation in the individual's record that employment readiness was not available to the individual under a program funded under §110 of the Rehabilitation Act of 1973 or under a program funded under the Individuals with Disabilities Education Act (20 U.S.C. §1401 et seq.);

(F) [~~(E)~~] host home/companion care, residential support, or supervised living, if the host home/companion care, residential support, or supervised living was provided on the day of the individual's suspension or termination of HCS Program services;

(G) [~~(F)~~] TAS, if the TAS, was not provided in accordance with a Transition Assistance Services (TAS) Assessment and Authorization form authorized by HHSC;

(H) [~~(G)~~] pre-enrollment minor home modifications and a pre-enrollment minor home modifications assessment, if the pre-enrollment minor home modifications and a pre-enrollment minor home modifications assessment, was not provided in accordance with a Home and Community-based Services (HCS) Program Pre-enrollment MHM Authorization Request form authorized by HHSC;

(I) [~~(H)~~] a CFC service, if the CFC service, was provided to an individual receiving host home/companion care, supervised living, or residential support;

(J) [~~(I)~~] supported home living, if the supported home living, was not provided in accordance with a transportation plan and §263.5(a)(18) of this chapter (relating to Description of HCS Program Services); or

(K) [~~(J)~~] CFC PAS/HAB, in-home day habilitation provided to an individual with a residential type of "own/family home," or in-home respite, if the CFC PAS/HAB, in-home day habilitation, or in-home respite, did not match the EVV visit transaction as required by 1 TAC §354.4009(a)(4) (relating to Requirements for Claims Submission and Approval).

(6) A program provider must refund to HHSC 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 HHSC, whichever is earlier.

(7) Except as provided in paragraph (8) of this section, if HHSC approves an LOC requested in accordance with §263.105(b)(3) of this chapter (relating to LOC Determination), HHSC pays a program provider for services provided to an individual for a period of not more than 180 calendar days after the individual's previous ID/RC Assessment expires.

(8) If HHSC determines that a program provider submitted an ID/RC Assessment more than 180 calendar days after the expiration date of the previous ID/RC Assessment, because of circumstances beyond the program provider's control, HHSC may pay the program provider for a period of more than 180 calendar days after the date the individual's previous ID/RC Assessment expired.

(9) HHSC conducts provider fiscal compliance reviews to determine whether a program provider is in compliance with:

(A) this chapter;

(B) the HCS Program Billing Requirements;

(D) 40 TAC §§49.301-49.313; and

(E) the program provider's Community Services Contract-Provider Agreement.

(10) HHSC conducts provider fiscal compliance reviews in accordance with the Provider Fiscal Compliance Review Protocol set forth in the HCS Program Billing Requirements and the CFC Billing Requirements for HCS and TxHmL Program Providers. As a result of a provider fiscal compliance review, HHSC may:

(A) recoup payments from a program provider; and

(11) A corrective action plan required by HHSC in accordance with paragraph (10)(B) of this section 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 HHSC within 30 calendar days after the date the program provider is notified the corrective action plan is required; and

(12) Within 30 calendar days after HHSC receives a corrective action plan, HHSC notifies the program provider if HHSC approves the corrective action plan or if the plan requires changes.

(13) If HHSC requires a program provider to develop and submit a corrective action plan in accordance with paragraph (10)(B) of this section and the program provider requests an administrative hearing for the recoupment in accordance with §263.802 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. HHSC 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.

(14) If a program provider does not submit a corrective action plan or complete a required corrective action within the time frames described in paragraph (11) of this section, HHSC may impose a vendor hold on payments due to the program provider until the program provider takes the corrective action.

(15) If a program provider does not submit a corrective action plan or complete a required corrective action within 30 calendar days after the date a vendor hold is imposed in accordance with paragraph (14) of this section, HHSC may terminate the contract.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on July 18, 2024.

TRD-202403190

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: September 1, 2024

For further information, please call: (512) 438-2910

SUBCHAPTER J. LIDDA REQUIREMENTS

26 TAC §263.901

STATUTORY AUTHORITY

The amendment implements Texas Human Resources Code §32.0755.

§263.901.LIDDA Requirements for Providing Service Coordination in the HCS Program.

(a) In addition to the requirements described in Chapter 331 of this title (relating to LIDDA Service Coordination), a LIDDA must:

(1) comply with:

(A) this chapter;

(B) 40 TAC Chapter 41 (relating to Consumer Directed Services Option); and

(C) 40 TAC Chapter 4, Subchapter L (relating to Abuse, Neglect, and Exploitation in Local Authorities and Community Centers); and

(2) ensure that a rights protection officer required by 40 TAC §4.113 (relating to Rights Protection Officer at a State MR Facility or MRA), who receives a copy of an HHSC initial intake report or a final investigative report from an FMSA in accordance with 40 TAC §41.702 (relating to Requirements Related to HHSC Investigations When an Alleged Perpetrator is a Service Provider) or 40 TAC §41.703 (relating to Requirements Related to HHSC Investigations When an Alleged Perpetrator is a Staff Person or a Controlling Person of an FMSA), gives a copy of the report to the individual's service coordinator.

(b) A LIDDA must ensure that a service coordinator is an employee of the LIDDA and meets the requirements of this subsection.

(1) A service coordinator must meet the minimum qualifications and LIDDA staff training requirements described in Chapter 331 of this title except as described in paragraph (2) of this subsection.

(2) Notwithstanding §331.19(b)(2)(B) of this title (relating to Staff Person Training), a service coordinator must complete a comprehensive non-introductory person-centered service planning training developed or approved by HHSC within six months after the service coordinator's date of hire, unless an extension of the six month timeframe is granted by HHSC.

(3) A service coordinator must receive training about the following within the first 90 calendar days after beginning service coordination duties:

(A) rules governing the HCS Program and CFC; and

(B) 40 TAC Chapter 41.

(c) A LIDDA must have a process for receiving and resolving complaints from a program provider related to the LIDDA's provision of service coordination or the LIDDA'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 LIDDA must ensure that the concern is communicated to the program provider and attempts are made to resolve the concern. The LIDDA may refer an unresolved concern to HHSC by calling the HHSC IDD Ombudsman toll-free telephone number at 1-800-252-8154.

(e) A service coordinator must:

(1) assist an individual, LAR, or actively involved person in exercising the legal rights of the individual;

(2) provide an individual, LAR, or family member with the booklet, Your Rights In the Home and Community-based Services (HCS) Program, available on the HHSC website, and the HHSC HCS Rights Addendum form, and an oral explanation of the rights in the booklet and the form:

(A) upon the individual's enrollment in the HCS Program;

(B) upon revision of the booklet or the form;

(D) if one of the following occurs:

(i) the individual becomes 18 years of age;

(ii) a guardian is appointed for the individual; or

(iii) a guardianship for the individual ends;

(3) document the provision of the information 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, upon enrollment of an individual and annually thereafter, the individual or LAR is informed orally and in writing of the following:

(A) the telephone number of the LIDDA to file a complaint;

(B) the toll-free telephone number of the HHSC IDD Ombudsman, 1-800-252-8154, to file a complaint; and

(5) maintain for an individual for an IPC year:

(A) a copy of the IPC;

(B) the PDP and, if CFC PAS/HAB is included on the PDP, the completed HHSC HCS/TxHmL CFC PAS/HAB Assessment form;

(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 the person-centered planning process to meet the goals and outcomes identified by an individual and LAR in the individual's PDP, including scheduling service planning team meetings;

(7) to meet the needs of an individual as those needs are identified, develop for the individual a full range of services and resources using:

(A) providers for services other than HCS Program services and CFC services; and

(B) advocates or other actively involved persons;

(8) ensure that the PDP for an applicant or individual:

(A) is developed, reviewed, and updated in accordance with:

(i) §263.104(j)(4)(A) of this chapter (relating to Process for Enrollment of Applicants);

(ii) §263.302 of this chapter (relating to Renewal and Revision of an IPC); and

(iii) §331.11 of this title (relating to LIDDA's Responsibilities); and

(B) document, for each HCS Program service, other than supervised living and residential support, and for each CFC service, whether the service is critical to the individual's health and safety as determined by the service planning team;

(9) ensure that the updated finalized PDP is signed by the individual or LAR;

(10) participate in the development, renewal, and revision of an individual's IPC in accordance with §263.104 and §263.302 of this chapter;

(11) ensure the service planning team participates in the renewal and revision of the IPC for an individual in accordance with §263.302 of this chapter and ensure the service planning team completes other responsibilities and activities as described in this chapter;

(12) notify the service planning team if the service coordinator receives notification from the program provider that:

(A) an individual's behavior requires the implementation of a behavior support plan; or

(B) based on an annual review by the program provider, an individual's behavior support plan needs to continue;

(13) if a change to an individual's PDP is needed, other than as required by §263.302 of this chapter:

(A) communicate the need for the change to the individual or LAR, the program provider, and other appropriate persons;

(B) update the PDP as necessary; and

(C) within 10 calendar days after the PDP is updated, send a copy of the updated PDP to the program provider, the individual or LAR and, if applicable, the FMSA;

(14) provide an individual's program provider a copy of the individual's current PDP;

(15) monitor the provision of HCS Program services, CFC services, and non-HCS Program and non-CFC services to an individual;

(16) document whether an individual or LAR perceives that the individual is progressing toward desired outcomes identified on the individual's PDP;

(17) together with the program provider, ensure the coordination and compatibility of HCS Program services and CFC services with non-HCS Program and non-CFC services, including, in coordination with the program provider, assisting an individual in obtaining a neurobehavioral or neuropsychological assessment and plan of care from one of the following professionals:

(A) a psychologist licensed in accordance with Texas Occupations Code Chapter 501;

(B) a speech-language pathologist licensed in accordance with Texas Occupations Code Chapter 401; or

(18) for an individual who has had a guardian appointed, determine, at least annually, if the letters of guardianship are current;

(19) if individual does not have a guardian:

(A) ensure that the service planning team determines whether the individual would benefit from having a guardian or a less restrictive alternative to a guardian;

(B) if the service planning team determines that the individual would benefit from having a less restrictive alternative to a guardian such as a supported decision making agreement, take appropriate actions to implement such an alternative; and

(C) if the service planning team determines that the individual would benefit from having a guardian, make a referral to the appropriate court if:

(i) the individual would not benefit from a less restrictive alternative to a guardian; or

(ii) the individual would benefit from having a less restrictive alternative to a guardian but implementing such an alternative is not feasible;

(20) immediately notify the program provider if the service coordinator becomes aware that an emergency necessitates the provision of an HCS Program service or a CFC service to ensure the individual's health or safety and the service is not on the IPC or exceeds the amount on the IPC;

(21) if notified by the program provider that a requirement described in §263.501(d)(1) of this chapter (relating to Requirements for Home and Community-Based Settings), §263.502(b)(1) - (7) of this chapter (relating to Requirements for Program Provider Owned or Controlled Residential Settings) or §263.503(c)(15) of this chapter (relating to Residential Agreements) [~~or §263.502(b)(1) - (7) of this chapter (relating to Requirements for Program Provider Owned or Controlled Residential Settings)~~] needs to be modified, update the individual's PDP to include the following:

(A) a description of the specific and individualized assessed need that justifies the modification;

(B) a description of the positive interventions and supports that were tried but did not work;

(D) a description of the condition that is directly proportionate to the specific assessed need;

(E) a description of how data will be routinely collected and reviewed to measure the ongoing effectiveness of the modification;

(F) the established time limits for periodic reviews to determine if the modification is still necessary or can be terminated;

(G) the individual's or LAR's signature evidencing informed consent to the modification; and

(H) the program provider's assurance that the modification will cause no harm to the individual;

(22) if notified by the program provider that an individual or LAR has refused a comprehensive nursing assessment and that the program provider has determined it cannot ensure the individual's health, safety, and welfare in the provision of host home/companion care, residential support, supervised living, supported home living, respite, employment assistance, supported employment, employment readiness, in-home day habilitation, day habilitation, or CFC PAS/HAB:

(A) inform the individual or LAR of the consequences and risks of refusing the assessment, including that the refusal will result in the individual's not receiving:

(i) nursing services; or

(ii) host home/companion care, residential support, supervised living, supported home living, respite, employment assistance, supported employment, employment readiness, in-home day habilitation, day habilitation, or CFC PAS/HAB, if the individual needs one of those services and the program provider has determined that it cannot ensure the health and safety of the individual in the provision of the service; and

(B) notify the program provider if the individual or LAR continues to refuse the assessment after the discussion with the service coordinator;

(23) if the service coordinator determines that HCS Program services or CFC services provided for an individual should be terminated, including for a reason described in §263.104(k)(14)(C) or (D) of this chapter:

(A) document a description of:

(i) the situation that resulted in the service coordinator's determination that services should be terminated; and

(ii) the attempts by the service coordinator to resolve the situation;

(B) send a written recommendation to terminate the individual's HCS Program services or CFC services to HHSC and include the documentation required by subparagraph (A) of this paragraph; and

(C) provide a copy of the written recommendation and the documentation required by subparagraph (A) of this paragraph to the program provider;

(24) if an individual requests termination of all HCS Program services or all CFC services, 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 CFC services; and

(iii) possible service resources upon termination, including CFC services through a managed care organization; and

(B) submit documentation to HHSC 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;

(25) be objective in assisting an individual or LAR in selecting a program provider or FMSA;

(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 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;

(29) unless contraindications are documented with justification by the service planning team, ensure that an individual who is 18 years or older has opportunities to participate in day activities of the individual's or LAR's choice that promote achievement of PDP outcomes;

(30) 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;

(31) 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;

(32) for an individual receiving host home/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;

(33) if the program provider notifies the service coordinator that the program provider is unable to locate the parent or LAR to assist the LIDDA in conducting permanency planning or if notified by the LIDDA that the LIDDA is unable to locate the parent or LAR in accordance with §263.902(g)(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 (35)(A) and (B) of this subsection; and

(B) notify HHSC, 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 HHSC initiate a search for the parent or LAR;

(34) if the service coordinator determines that a parent's or LAR's contact information described in paragraph (35)(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 (35)(B) of this subsection; and

(35) request from and encourage the parent or LAR of an individual under 22 years of age 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 HHSC 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

(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;

(36) within three business days after an individual under 22 years of age begins receiving supervised living or residential support:

(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 the HHSC website for a listing of CRCG chairpersons by county); and

(ii) the local school district for the area in which the individual's 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 individual's residence is located, if the individual is under three years of age (see the HHSC website to search for an ECI program by zip code or 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 sex;

(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;

(37) 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, by videoconferencing, 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 at least 18 years of age and under 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;

(38) in accordance with Chapter 303, Subchapter G of this title (relating to Transition Planning) conduct:

(A) a pre-move site review for an applicant 21 years of age or older who is enrolling in the HCS Program from a nursing facility or as a diversion from admission to a nursing facility; and

(B) post-move monitoring visits for an individual 21 years of age or older who enrolled in the HCS Program from a nursing facility or has enrolled in the HCS Program as a diversion from admission to a nursing facility;

(39) do the following to inform applicants and individuals about responsibilities related to EVV:

(A) for an applicant who will receive a service that requires the use of EVV from the program provider or through the CDS option:

(i) orally explain the information in the HHSC Electronic Visit Verification Responsibilities and Additional Information form to the applicant or LAR;

(ii) sign the HHSC Electronic Visit Verification Responsibilities and Additional Information form to attest to explaining the information and to providing a copy to the individual or LAR;

(iii) provide the individual or LAR with a copy of the signed form;

(iv) perform the activities described in clause (i) - (iii) of this subparagraph before the individual's enrollment; and

(v) maintain the completed HHSC Electronic Visit Verification Responsibilities and Additional Information form in the individual's record;

(B) for an individual who will receive a service that requires the use of EVV from the program provider or who is transferring to another program provider or LIDDA and will receive a service that requires the use of EVV from the program provider or through the CDS option:

(i) orally explain the information in the HHSC Electronic Visit Verification Responsibilities and Additional Information form to the individual or LAR;

(ii) sign the HHSC Electronic Visit Verification Responsibilities and Additional Information form to attest to explaining the information and to providing a copy to the individual or LAR;

(iii) provide the individual or LAR with a copy of the signed form;

(iv) perform the activities described in clause (i)-(iii) of this subparagraph on or before the effective date of the IPC that includes the EVV required service or the effective date of the transfer to another program provider or LIDDA; and

(v) maintain the completed HHSC Electronic Visit Verification Responsibilities and Additional Information form in the individual's record; and

(C) for an individual who will receive a service that requires the use of EVV through the CDS option or who will transfer to another FMSA and is receiving a service requiring the use of EVV:

(i) orally explain the information in the HHSC Electronic Visit Verification Responsibilities and Additional Information form to the individual or LAR;

(ii) sign the HHSC Electronic Visit Verification Responsibilities and Additional Information form to attest to explaining the information and to providing a copy to the individual or LAR;

(iii) provide the individual or LAR with a copy of the signed form;

(iv) perform the activities described in clause (i)-(iii) of this subparagraph before the individual receiving the EVV required service through the CDS option or on or before the effective date of the transfer to another FMSA; and

(v) maintain the completed HHSC Electronic Visit Verification Responsibilities and Additional Information form in the individual's record;

(40) have contact with an individual in-person, by videoconferencing, or telephone to provide service coordination during a month in which it is anticipated that the individual will not receive an HCS Program service unless:

(A) the individual's HCS Program services have been suspended; or

(B) the service coordinator had an in-person contact with the individual that month to comply with §331.11(d) of this title (relating to LIDDA's Responsibilities);

(41) within one business day after the meeting to revise an IPC described in §263.503(k) of this chapter (relating to Residential Agreements), submit the following documentation to HHSC if the individual or LAR wants to keep residential support, supervised living, or host home/companion care on the individual's IPC:

(A) a completed HHSC Notification of Service Coordinator Disagreement form;

(B) a copy of the written notice of proposed eviction described in §263.503(h)(3) of this chapter;

(D) progress notes from any meetings related to the eviction; and

(E) a copy of the individual's PDP; and

(42) within one business day after receiving the notice from a program provider described in §263.503(m) of this chapter, notify HHSC that the individual is no longer delinquent in room or board payments.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on July 18, 2024.

TRD-202403191

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: September 1, 2024

For further information, please call: (512) 438-2910

CHAPTER 564. CHEMICAL DEPENDENCY TREATMENT FACILITIES

SUBCHAPTER C. OPERATIONAL REQUIREMENTS

26 TAC §564.39

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes new §564.39, concerning Dangers of Substance Misuse Educational Program Requirements.

BACKGROUND AND PURPOSE

The proposal is necessary to comply with and implement House Bill (H.B.) 5183, 88th Legislature, Regular Session, 2023. H.B. 5183 amended Texas Transportation Code Chapter 521 and, in part, requires HHSC to approve a substance misuse educational program that a residential chemical dependency treatment facility (CDTF) licensed under Texas Health and Safety Code Chapter 464 may provide to an individual whose driver's license was suspended under Transportation Code §521.372. Such educational program must be equivalent to an educational program approved by the Texas Department of Licensing and Regulation (TDLR) under Texas Government Code Chapter 171. The proposed new rule is required for the qualification and approval of equivalent education programs required by Texas Transportation Code §521.374(a-1).

SECTION-BY-SECTION SUMMARY

Proposed new §564.39 outlines the substance misuse educational program requirements that a residential CDTF may use as an equivalent program to an educational program approved by TDLR under Texas Government Code Chapter 171.

Subsection (a) of the rule outlines the purpose of this rule section is to establish requirements for an educational program on the dangers of substance misuse.

Subsection (b) of the rule establishes that the educational program in this section is equivalent to an educational program approved by TDLR.

Subsection (c) of the rule allows a CDTF to provide the educational program under this section either in person or online.

Subsection (d) of the rule requires the curriculum for an educational program provided under this section to include at least the listed 15 key elements.

Subsection (e) of the rule requires a CDTF that provides an online version of an educational program under this section to comply with Texas Administrative Code Title 26 §564.911, relating to Treatment Services Provided by Electronic Means.

Subsection (f) of the rule requires a CDTF that provides an in-person version of an educational program under this section to conduct the course at the CDTF's physical location.

Subsection (g) of the rule requires a CDTF to make provisions for residents who are unable to read or speak English and requires the CDTF to offer separate courses for each language.

Subsection (h) of the rule outlines the requirements for an individual to serve as an instructor.

Subsection (i) of the rule requires a single instructor to teach the entire course and document all information related to the resident completing the course in the resident's client record.

Subsection (j) of the rule outlines the requirements an instructor must follow when providing an educational program under this section.

Subsection (k) of the rule requires the educational program to consist of at least 15 hours of class instruction per course and five class modules of instruction per course.

Subsection (l) of the rule requires a CDTF to create, issue, and maintain a record of certificates of completion. The proposed new subsection also outlines the minimum formatting requirements and outlines the informational requirements a certificate of completion must contain.

Subsection (m) of the rule clarifies that HHSC may determine compliance with this section during an inspection or investigation of a CDTF that offers an educational program described by this section.

Subsection (n) of the rule notes HHSC and the Department of Public Safety must jointly adopt rules for the qualification and approval of an educational program a CDTF provides under this section and states HHSC will solicit input from the Texas Department of Public Safety during the rulemaking process.

FISCAL NOTE

Trey Wood, HHSC Chief Financial Officer, has determined that for each year of the first five years that the rule will be in effect, enforcing or administering the rule does not have foreseeable implications relating to costs or revenues of state or local governments.

GOVERNMENT GROWTH IMPACT STATEMENT

HHSC has determined that during the first five years that the rule will be in effect:

(1) the proposed rule will not create or eliminate a government program;

(2) implementation of the proposed rule will not affect the number of HHSC employee positions;

(3) implementation of the proposed rule will result in no assumed change in future legislative appropriations;

(4) the proposed rule will not affect fees paid to HHSC;

(5) the proposed rule will create a new regulation;

(6) the proposed rule will not expand, limit, or repeal existing regulations;

(7) the proposed rule will not change the number of individuals subject to the rule; and

(8) the proposed rule will not affect the state's economy.

SMALL BUSINESS, MICRO-BUSINESS, AND RURAL COMMUNITY IMPACT ANALYSIS

Trey Wood has also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities because the proposed rule does not impose a cost or require small businesses, micro-businesses, or rural communities to alter their current business practices. Providing an educational program under this section is optional and those who choose to provide the program are required to comply with the law as amended by H.B. 5183.

LOCAL EMPLOYMENT IMPACT

The proposed rule will not affect a local economy.

COSTS TO REGULATED PERSONS

Texas Government Code §2001.0045 does not apply to this rule because the rule does not impose a cost on regulated persons and is necessary to implement legislation that does not specifically state that §2001.0045 applies to the rule.

PUBLIC BENEFIT AND COSTS

Stephen Pahl, Deputy Executive Commissioner for Regulatory Services, has determined that for each year of the first five years the rule is in effect, the public will benefit from increased consistency between the CDTF rules and statutory requirements and greater access to more qualifying equivalent substance misuse educational programs for individuals whose licenses were suspended under Transportation Code §521.372.

Trey Wood has also determined that for the first five years the rule is in effect, there are no anticipated economic costs to persons who are required to comply with the proposed rule because providing the educational program under the proposed rule is optional and CDTFs who choose to provide the educational program are required to comply with the law as amended by H.B. 5183.

TAKINGS IMPACT ASSESSMENT

HHSC has determined that the proposal does not restrict or limit an owner's right to the owner's property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under Texas Government Code §2007.043.

PUBLIC COMMENT

To be considered, comments must be submitted no later than 31 days after the date of this issue of the Texas Register. Comments must be (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered before 5:00 p.m. on the last working day of the comment period; or (3) emailed before midnight on the last day of the comment period. If the last day to submit comments falls on a holiday, comments must be postmarked, shipped, or emailed before midnight on the following business day to be accepted. When faxing or emailing comments, please indicate "Comments on Proposed Rule 24R016" in the subject line.

STATUTORY AUTHORITY

The new section is authorized by Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Transportation Code Chapter 521, which authorizes the executive commissioner of the Health and Human Services Commission and the Texas Department of Public Safety to jointly adopt rules.

The new section implements Texas Government Code §531.0055 and Texas Transportation Code Chapter 521.

§564.39.Dangers of Substance Misuse Educational Program Requirements.

(a) The purpose of this section is to establish the requirements for an educational program on the dangers of substance misuse pursuant to Texas Transportation Code Chapter 521, Subchapter P.

(b) Pursuant to Texas Transportation Code §521.374(a)(2), a residential chemical dependency treatment facility (CDTF) may provide an educational program to a resident of that facility whose driver's license is suspended under Texas Transportation Code §521.372. The facility must meet all requirements in this section for the CDTF's educational program to be considered equivalent under Texas Transportation Code §521.374(a)(2) to an educational program approved by the Texas Department of Licensing and Regulation under Texas Government Code Chapter 171.

(c) A CDTF that provides an educational program under this section may provide the educational program in person or online.

(d) The curriculum for an educational program provided under this section shall include at least the following key elements:

(1) Texas drug laws, including laws and penalties relating to controlled substances and the difference between state and federal statutes;

(2) history of substance misuse, including trends in the history of substance misuse and how substances impact individuals and society;

(3) stages of change, including how individuals integrate new behaviors and goals through five stages of change;

(4) substance misuse and the impact on physical health;

(5) physical health, human immunodeficiency virus (HIV), and sexually transmitted infections;

(6) community resources, including referrals to counseling, services that support the person's recovery, and testing;

(7) brain and the central nervous system;

(8) disease model of substance use disorder (mild, moderate, and severe);

(9) society and substance misuse, including how advertising, movies, and television influence substance misuse trends;

(10) Maslow's hierarchy of needs, including understanding basic human needs and how substance misuse impacts a person's ability to meet personal needs;

(11) substance misuse and its impact on personal and work relationships;

(12) personal values, attitude, and behavior;

(13) recovery, including treatment and community-based support programs or services;

(14) return to use prevention; and

(15) recovery plan.

(e) A CDTF that provides an online version of an educational program under this section shall comply with §564.911 of this chapter (relating to Treatment Services Provided by Electronic Means).

(f) A CDTF that provides an in-person version of an educational program under this section shall conduct the educational program's course at the CDTF's physical location.

(g) The CDTF shall make provisions for residents unable to read or speak English. The facility shall provide separate courses in English and in a second language(s) appropriate to the population(s) served at the CDTF.

(h) To serve as an instructor of an educational program under this section, an individual must be an employee of the CDTF and must have a minimum of two years of relevant and documented experience providing direct client services to persons with substance misuse problems and serve as one of the following:

(1) licensed chemical dependency counselor;

(2) registered counselor intern;

(3) licensed social worker;

(4) licensed professional counselor;

(5) licensed professional counselor intern;

(6) certified teacher;

(7) licensed psychologist;

(8) licensed physician or psychiatrist;

(9) probation or parole officer;

(10) adult or child protective services worker;

(11) licensed vocational nurse; or

(12) licensed registered nurse.

(i) A single instructor shall teach the entire course. The instructor shall document all information related to the resident participating and completing the course. The CDTF shall insure all course documentation is placed in the resident's client record.

(j) The instructor shall:

(1) require participants to complete all the class modules within the course in the proper sequence;

(2) administer and evaluate pre-course and post-course program test instruments for each participant;

(3) administer a participant course evaluation at the end of each course; and

(4) conduct an exit interview with each participant.

(k) Each educational program shall include at least:

(1) 15 hours of class instruction per course; and

(2) five class modules of instruction per course.

(l) In order for the Texas Department of Public Safety (DPS) and Texas Health and Human Services Commission (HHSC) to accept a certificate as valid, the CDTF shall use the standardized certificate format described in this subsection.

(1) The CDTF shall create and issue a certificate of completion to a resident on the resident's participation in and successful completion of the educational program. The CDTF shall maintain an ascending numerical accounting record of all issued certificates.

(2) The certificate issued by the CDTF for completion of the education program under this section shall use the following format and, at minimum, consist of the following:

(A) The CDTF shall create a certificate that:

(i) is 8.5 inches wide and 3.5 inches long;

(ii) consists of a blue background color; and

(iii) aside from the required handwritten signature, consists only of a typed 12-point font that is legible and easy to read.

(B) The CDTF shall include on the left side of the certificate:

(i) the resident's:

(I) full name;

(II) date of birth;

(III) driver license number;

(IV) address; and

(V) offense cause number;

(ii) the name of the county that convicted the resident; and

(iii) the date the resident successfully completed the educational program under this section.

(i) the CDTF's:

(I) full name as it appears on the facility's license, including any headquarters or Assumed Name or Doing Business As names;

(II) address;

(III) phone number; and

(IV) residential facility license number;

(ii) the instructor's printed full name and signature; and

(iii) the date of the instructor's signature.

(D) The CDTF shall include a serial number unique to each certificate issued in the top right corner of the certificate. When creating certificate serial numbers, the CDTF shall use consecutive serial numbers and issue certificates to residents in consecutive order.

(3) The CDTF shall maintain a copy of each issued certificate of program completion for at least three years from the date of course completion.

(m) An HHSC representative may determine compliance with this section during an inspection or investigation of a CDTF that offers an educational program under this section.

(n) In accordance with Transportation Code §521.375(a-1), HHSC and DPS are responsible for jointly adopting rules for qualification and approval of an educational program a CDTF provides under this section. For any proposed changes to the rules outlined in this section, HHSC solicits input from DPS during the rulemaking process.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on July 17, 2024.

TRD-202403139

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: September 1, 2024

For further information, please call: (512) 834-4591