PART 1. DEPARTMENT OF AGING AND DISABILITY SERVICES
CHAPTER 3. RESPONSIBILITIES OF STATE FACILITIES
SUBCHAPTER D. TRAINING
As required by Texas Government Code §531.0202(b), the Department of Aging and Disability Services (DADS) was abolished effective September 1, 2017, after all its functions were transferred to the Texas Health and Human Services Commission (HHSC) in accordance with Texas Government Code §531.0201 and §531.02011. Rules of the former DADS are codified in Title 40, Part 1, and will be repealed or administratively transferred to Title 26, Health and Human Services, as appropriate. Until such action is taken, the rules in Title 40, Part 1 govern functions previously performed by DADS that have transferred to HHSC. Texas Government Code §531.0055, requires the Executive Commissioner of HHSC to adopt rules for the operation and provision of services by the health and human services system, including rules in Title 40, Part 1. Therefore, the Executive Commissioner of HHSC proposes the repeal of rules in Title 40, Part 1, Chapter 3, Subchapter D, Training, comprising of §3.401, concerning Training for New Employees; §3.402, concerning Additional Training for Direct Support Professionals; §3.403, Refresher Training; and §3.404, Specialized Training for of a Forensic Facility Employee.
BACKGROUND AND PURPOSE
The purpose of the proposed repeals is to reflect the move of the state supported living centers from DADS to HHSC by moving HHSC rules from Texas Administrative Code (TAC) Title 40, Chapter 3, Subchapter D to 26 TAC Chapter 926 and consolidate HHSC rules. The new rules are proposed simultaneously elsewhere in this issue of the Texas Register.
SECTION-BY-SECTION SUMMARY
The repeal of 40 TAC Chapter 3, Subchapter D rules will delete the rules from 40 TAC and place updated rules in 26 TAC to reflect the transfer of functions from DADS to HHSC.
FISCAL NOTE
Trey Wood, Chief Financial Officer, has determined that for each year of the first five years that the repeals will be in effect, enforcing or administering the repeals 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 repeals will be in effect:
(1) the proposed repeals will not create or eliminate a government program;
(2) implementation of the proposed repeals will not affect the number of HHSC employee positions;
(3) implementation of the proposed repeals will result in no assumed change in future legislative appropriations;
(4) the proposed repeals will not affect fees paid to HHSC;
(5) the proposed repeals will not create a new rule;
(6) the proposed repeals will repeal existing rules;
(7) the proposed repeals will not change the number of individuals subject to the rules; and
(8) the proposed repeals 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 repeals do not apply to small businesses, micro-businesses, or rural communities.
LOCAL EMPLOYMENT IMPACT
The proposed repeals will not affect a local economy.
COSTS TO REGULATED PERSONS
Texas Government Code §2001.0045 does not apply to these repeals because the repeals do not impose a cost on regulated persons.
PUBLIC BENEFIT AND COSTS
Scott Schalchlin, Deputy Executive Commissioner of Health and Specialty Care System, has determined that for each year of the first five years the repeals are in effect, the public benefit will be the removal of rules no longer associated with DADS from 40 TAC.
Trey Wood has also determined that for the first five years the repeals are in effect, there are no anticipated economic costs to persons who are required to comply with the repeals because the repeals do not impose a cost.
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 HHSC, Mail Code E619, P.O. Box 13247, Austin, Texas 78711-3247, or by email to HealthandSpecialtyCare@hhsc.state.tx.us.
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 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 23R006" in the subject line.
STATUTORY AUTHORITY
The repeals 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, and Texas Health and Safety Code §555.024, which requires HHSC to provide certain training for employees of SSLCs and requires the Executive Commissioner to adopt rules for SSLCs to provide refresher trainings to direct care employees.
The repeals affect Texas Government Code §531.0055 and Texas Health and Safety Code §555.024.
§3.401.Training for New Employees.
§3.402Additional Training for Direct Support Professionals.
§3.403Refresher Training.
§3.404Specialized Training for of a Forensic Facility Employee.
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 November 20, 2023.
TRD-202304330
Karen Ray
Chief Counsel
Department of Aging and Disability Services
Earliest possible date of adoption: January 7, 2024
For further information, please call: (512) 438-3049
CHAPTER 700. CHILD PROTECTIVE SERVICES
SUBCHAPTER I. PURCHASED PROTECTIVE SERVICES TO PREVENT REMOVAL OR TO REUNIFY FAMILIES
The Department of Family and Protective Services (DFPS) proposes new §700.905 in Title 40, Texas Administrative Code (TAC), Chapter 700, Subchapter I, relating to Purchased Protective Services to Prevent Removal or to Reunify Families.
BACKGROUND AND PURPOSE
The Texas 88th Regular legislative session enacted House Bill 793 which requires DFPS to promulgate a rule requiring DFPS to reimburse a licensed or qualified provider in an amount equal to the average cost for the specific service from department contractors providing the service in the region the parent resides, from existing DFPS resources. This provision is codified at Texas Family Code §263.1021.
Chapter 263, Subchapter B of the Texas Family Code pertains to when the Department of Family and Protective Services (DFPS) has been court ordered the temporary managing conservator of a minor, and the parent, as a client is required to obtain services under a family service plan. A parent seeking services under a family service plan will be permitted to choose a licensed or qualified service provider that is not under contract with DFPS or an SSCC. Services obtained from a service provider selected by the parent must be designed to achieve the stated goals of the Family Plan of Service for a child in DFPS conservatorship and the service provider must certify whether the parent has satisfactorily completed the required service that is being sought for reimbursement.
SECTION-BY-SECTION SUMMARY
Proposed new §700.905: gives a summary of the rule, including that this rule relating to the reimbursement of noncontracted service providers are intended to further supplement and clarify Texas Family Code §263.1021; (a) defines words used in the bill and in the rule to clarify family plan of service, qualified and license providers; (b) requires Single Source Continuum Contract/Contractors (SSCC) to adopt their own reimbursement requirements; (c) requires the service provider, as opposed to the parent to seek reimbursement for the services; (d) allows services to be provided in-person or via electronic communication platform; (e) requires a service provider to bill Medicaid if the parent is a Medicaid beneficiary; and (f) lays out the basic requirements for a non-contracted service provider to be reimbursed, such as a licensed provider maintaining licensure, the timeline in which DFPS can reimburse, and that the service provider cannot be related by consanguinity or affinity to the parent receiving services.
FISCAL NOTE
Lea Ann Biggar, Chief Financial Officer of DFPS, has determined that for each year of the first five years that the section(s) will be in effect, there will not be fiscal implications to state and local governments as a result of enforcing and administering the section(s) as proposed. Implementation of this statute and rule would require DFPS to process payments manually within existing resources and without IT modifications at this time.
GOVERNMENT GROWTH IMPACT STATEMENT
DFPS has determined that during the first five years that the proposed 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 employee positions;
(3) implementation of the proposed rule will not require an increase or decrease in future legislative appropriations to the agency;
(4) the proposed rule will not affect fees paid to the agency;
(5) the proposed rule will not create a new regulation;
(6) the proposed rule will not expand, limit, or repeal an existing regulation;
(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
Ms. Biggar has also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities. The rule will provide additional revenue for small, micro businesses or rural communities by allowing them to provide services to DFPS clients without having to go through the contracting process to become a certified vendor for the agency.
ECONOMIC COSTS TO PERSONS AND IMPACT ON LOCAL EMPLOYMENT
There are no anticipated economic costs to persons who are required to comply with the section(s) as proposed.
There is no anticipated negative impact on local employment.
COSTS TO REGULATED PERSONS
Pursuant to subsection (c)(7) of Texas Government Code §2001.0045, the statute does not apply to a rule that is adopted by the Department of Family and Protective Services
PUBLIC BENEFIT
Ms. Biggar has determined that for each year of the first five years the sections are in effect, the public will benefit from adoption of the section(s). The public benefit anticipated will be a positive effect on small, or micro-businesses or rural communities because the proposed changes will provide additional revenue for small, micro businesses or rural communities by allowing them to provide services to DFPS clients without having to go through the contracting process to become a certified vendor for the agency. There is no anticipated economic cost to persons who are required to comply with the proposed sections.
REGULATORY ANALYSIS
The department has determined that this proposal is not a "major environmental rule" as defined by Government Code, §2001.0225.
TAKINGS IMPACT ASSESSMENT
DFPS 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 Government Code, §2007.043.
PUBLIC COMMENT
Comments and questions on this proposal must be submitted within 30 days of publication of the proposal in the Texas Register. Electronic comments and questions may be submitted to RULES@dfps.state.tx.us. Hard copy comments may be submitted to the DFPS Rules Coordinator, Legal Services Sanjuanita Maltos, Department of Family and Protective Services E-611, P.O. Box 149030, Austin, Texas 78714-9030.
STATUTORY AUTHORITY
The new rule section 700.905 is authorized by Human Resources Code (HRC) §40.027, which provides that the Department of Family and Protective Services Commissioner shall adopt rules for the operation and provision of services by the department.
CROSS REFERENCE TO STATUTES
The new rule implements Texas Family Code §263.1021.
§700.905.Reimbursement of Noncontracted Service Providers.
(a) A parent who is required to complete a Family Service Plan may obtain services from a qualified or licensed noncontracted service provider, and this provider may be reimbursed by DFPS in an amount equal to the average cost for the specific service from DFPS contractors providing the service in the region, where the parent resides. Only services where the parent is the direct client of the service provider are eligible for reimbursement. In addition, the rules relating to the reimbursement of noncontracted service providers are intended to further supplement and clarify Texas Family Code §263.1021. This rule is operable to the extent that DFPS has existing resources to implement Texas Family Code §263.1021.
(b) Definitions:
(1) Case Plan: a Case Plan, as defined by 42 U.S.C. 675, is a written document which meets the requirements 42 U.S.C. 675a. Texas has divided the federal requirement of a Case Plan into two separate plans, the Family Service Plan as defined in Texas Family Code §263.101 and the Child's Plan of Service as defined in Texas Family Code §264.128. For the purpose of this Rule, a Child's Plan (also referred to as a Child's Plan of Service) is not a Family Service Plan.
(2) Family Service Plan (also referred to as a "Family Plan of Service," "Family Plan" or "Individual Family Service Plan") is a written plan in which DFPS and a child's parents identify the actions, specific skills, knowledge, steps, and/or responsibilities that are necessary for the parents to achieve the Family Service Plan's goal during this Plan's service period and the assistance to be provided to the parents by the DFPS or other agency toward meeting that goal.
(3) Single Source Continuum Contract/Contractor (SSCC) is an entity, as described in Texas Family Code §264.154, with whom DFPS enters into a contract for the provision of the full continuum of substitute care, case management, and reunification services in a Designated Community Area.
(4) Licensed Provider is an individual who is required by the State of Texas to be licensed to provide the professional service that the parent is receiving and DFPS is reimbursing.
(5) Qualified Provider is an individual who has completed certification or other training programs and has two (2) years of verified full-time experience in the professional service in which they are providing to the parent and DFPS is reimbursing.
(6) Noncontracted Service Provider is one who is not under a current contract with DFPS or SSCC for the service that they are seeking reimbursement. They also cannot be an employee of DFPS or SSCC.
(c) SSCCs must adopt similar requirements relating to the manner in which noncontracted service providers are reimbursed that do not conflict with this Section.
(d) Only the noncontracted service provider may seek reimbursement from DFPS for services and must not have already been paid by the parent or a third party.
(e) To be reimbursed, services may be provided in-person or through an electronic communication platform.
(f) DFPS cannot use state funds to reimburse a noncontracted service provider for Medicaid services to a parent who is a Medicaid beneficiary, as described in Texas Human Resources Code Chapter 32. If the parent has Texas Medicaid, the noncontracted service provider must bill Medicaid and not seek reimbursement through DFPS.
(g) All the following requirements/conditions must be met in order for a noncontracted service provider to be reimbursed:
(1) Must be qualified or licensed provider and comply with the DFPS's guidelines and requirements for reimbursement pursuant to Texas Family Code §263.1021.
(2) If a license is required, the service provider must maintain licensure and the license must remain in good standing while providing services that they are seeking reimbursement.
(3) Services obtained from a service provider selected must be designed to achieve the stated goals of the Family Plan of Service for a child in DFPS conservatorship and the noncontracted service provider must certify whether the parent has satisfactorily completed the required service that is being sought for reimbursement.
(4) DFPS cannot reimburse for services that occur after DFPS is dismissed from the case, or the parental rights have been terminated (earlier of two). If a Family Service is reinstated, then the service provider would have to seek reimbursement though a new claim under the reinstated Family Service Plan.
(5) The noncontracted service provider must be able to receive reimbursement from state or federal funds and not be debarred from receiving these funds.
(6) The noncontracted service provider cannot have had a prior DFPS contract to provide the specific service that they are seeking reimbursement which DFPS terminated for cause.
(7) The noncontracted service provider cannot be related by consanguinity or affinity to the parent receiving 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 November 20, 2023.
TRD-202304341
Katharine McLaughlin
Policy Attorney
Department of Family and Protective Services
Earliest possible date of adoption: January 7, 2024
For further information, please call: (512) 915-1729