PART 1. HEALTH AND HUMAN SERVICES COMMISSION
CHAPTER 357. INDEPENDENT LIVING SERVICES PROGRAM
The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §357.101, concerning Purpose; §357.103, concerning Legal Authority; §357.105, concerning Definitions; §357.201, concerning Allocation of Funds; §357.305, concerning Eligibility; §357.307, concerning Independent Living Plan; §357.309, concerning Waiting List; §357.311, concerning Scope of Services; §357.401, concerning Consumer Participation System; §357.403, concerning Fee Schedule Amount; §357.405, concerning Insurance Payments; §357.501, concerning Rights of Consumers; §357.503, concerning Complaint Process; §357.601, concerning Administering Agency's Role in Providing Technical Assistance; and §357.701, concerning Expectations of Administering Agency's Employees; and new §357.107, concerning Service Provider Standards and Contracts.
BACKGROUND AND PURPOSE
The purpose of the proposal is to update references in rule to reflect changes made due to the implementation of Senate Bill (S.B.) 200, 84th Legislature, Regular Session, 2015, which required the dissolution of the Department of Assistive and Rehabilitative Services (DARS). Independent Living Services (ILS) transferred to HHSC from the legacy DARS as part of the Health and Human Services Transformation. The program was subsequently outsourced to the Centers for Independent Living (CIL) on September 1, 2016, as required by House Bill (H.B.) 2463, 84th Legislature, Regular Session, 2015. HHSC continues to oversee ILS, except for Independent Living Services for Older Individuals who are Blind, which transferred to the Texas Workforce Commission as required by S.B. 208, 84th Legislature, Regular Session, 2015.
The proposal updates references from DARS to HHSC, outdated terms such as "individual" or "consumer," and references to "person" or "people" to align with the agency's person-centered language policy. A new rule requires service providers to adhere to the service provider standards and clarifies that they are responsible for any subcontracted services. The proposal changes eligibility criteria to require a person to reside in Texas, instead of merely being present in Texas.
SECTION-BY-SECTION SUMMARY
The proposed amendment to the Chapter 357 title adds the word program to distinguish it from other programs or groups which may offer independent living services.
The proposed amendment to §357.101 makes non-substantive grammatical changes to improve wording.
The proposed amendment to §357.103 updates references to the United States Code (USC) and the Code of Federal Regulations (CFR). 29 USC 711(c) is removed. 34 CFR Parts 364, 365, and 366 have been removed and replaced by 45 CFR, Part 1329. The paragraphs are rearranged for easier readability.
The proposed amendment to §357.105 updates person-centered language, updates references to DARS, removes definitions that are no longer applicable, and adds new definitions for "consumer participation agreement," "HHSC," "Independent Living Services Program," "person," "representative," "support services," "vendor," and "youth with a disability."
Proposed new §357.107 requires a service provider to adhere to the service provider standards and clarifies that the service provider is responsible for any subcontracted services.
The proposed amendment to §357.201 updates references to DARS and makes other non-substantive wording changes.
The proposed amendment to §357.305 updates the citations from the previous location in Title 40, Texas Administrative Code, §104.105, changes the eligibility requirements from being present in Texas to residing in Texas, removes the statement that anyone determined eligible by DARS remains eligible with HHSC, and updates language regarding protections afforded to applicants when eligibility requirements are applied.
The proposed amendment to §357.307 updates text to person-centered language; corrects outdated citations; and includes other community, state, and federal programs that are necessary to the coordination of services.
The proposed amendment to §357.309 updates text to person-centered language and updates a citation.
The proposed amendment to §357.311 removes personal assistance and supported living as independent living services, updates text to person-centered language, and corrects outdated citations.
The proposed amendment to §357.401 adds language prohibiting the collection of consumer participation for support services, updates text to person-centered language, updates references to DARS, and corrects outdated citations.
The proposed amendment to §357.403 updates references to DARS, updates text to person-centered language, and makes non-substantive wording changes.
The proposed amendment to §357.405 simplifies the insurance wording, adds person-centered language, and updates references to DARS.
The proposed amendment to §357.501 changes the title from "Rights of Consumers" to "Personal Rights," uses person-centered language, updates language prohibiting discrimination by HHSC, and updates references to DARS.
The proposed amendment to §357.503 updates the HHSC Ombudsman's office online contact information, updates references to DARS, and uses person-centered language.
The proposed amendment to §357.601 changes the title from "Administering Agency's Role in Providing Technical Assistance" to "Technical Assistance Provided by HHSC" and updates references to DARS.
The proposed amendment to §357.701 changes the title from "Expectations of Administering Agency's Employees" to "Referrals Received by HHSC," uses person-centered language, updates references to DARS, and updates how a person can find contact information for the Independent Living Services provider.
FISCAL NOTE
Trey Wood, 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 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 create new regulations;
(6) the proposed rules will limit 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 has also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities. The rules only affect the Independent Living Services Program, and S.B. 200 requires that those services be provided exclusively by the Centers for Independent Living. As such, the services could not be provided by small businesses. The proposed amendments do not impact the scope of the program to infringe on any services currently provided by small businesses.
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.
PUBLIC BENEFIT AND COSTS
Haley Turner, Deputy Executive Commissioner, Community Services, has determined that for each year of the first five years the rules are in effect, the public benefit will be clarity in the community regarding the administering agency. Removing DARS from the rules will help shift public perception to HHSC. The shift in eligibility criteria from a person being present in Texas to residing in Texas will make it clearer for the Centers for Independent Living and those served that Centers for Independent Living staff will need to verify residency, similar to other government programs.
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 changes are procedural in nature and do not come with any additional costs for those required to comply.
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
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 4601 West Guadalupe 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 24R075" in the subject line.
SUBCHAPTER A. GENERAL RULES
26 TAC §§357.101, 357.103, 357.105, 357.107
STATUTORY AUTHORITY
The amendments and new section 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 Human Resources Code §117.080(e), which authorizes the Executive Commissioner of HHSC to adopt rules necessary to implement that section, including requirements applicable to CILs providing independent living services under the program.
The amendments and new section implement Texas Government Code §531.0055 and Texas Human Resources Code §117.080.
§357.101.Purpose.
The [This] program provides services
that promote to the fullest extent the integration and inclusion of a person [individuals] with significant disabilities
into society.
§357.103.Legal Authority.
[(a)] The legal authority for the program
is published in the following federal [regulations] and
state law [statutes]:
(1) 29 United States Code (U.S.C.) §§796a-796f-6;
[(1) 34 Code of Federal Regulations, Parts 364, 365 and 366;]
(2) 45 Code of Federal Regulations, Part 1329; and
[(2) 29 U.S.C. §§711(c)
and 796a-796f-6; and]
(3) Texas Human Resources Code[, §117.079
and] §117.080.
[(b) In case of any conflict, federal
regulations prevail.]
§357.105.Definitions.
The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise.
(1) Ability to pay--The determination that a person [the consumer] is able to contribute financially toward the cost
of independent living services.
(2) Accessible format--An alternative way of providing
to a person [people] with disabilities the same
information, functionality, and services provided to a person
without a disability [people without disabilities].
Examples of accessible formats include braille, accessible digital
content [ASCII text], large print, American Sign
Language, and recorded audio.
(3) Act--The Rehabilitation Act of 1973, as amended.
(4) Adjusted income--The dollar amount that is equal to a household's annual gross income, minus allowable deductions.
(5) Allotment--Funds distributed to a service provider
by HHSC [DARS] to provide [provider
] services under this chapter.
(6) Allowable deductions--Certain unreimbursed household expenses that are subtracted from a household's annual gross income to calculate the adjusted income.
[(7) Attendant care--A personal assistance
service provided to help an individual with significant disabilities
perform essential personal tasks, such as bathing, communicating,
cooking, dressing, eating, homemaking, toileting, and transportation.]
(7) [(8)] Blind--A condition
of having no more than 20/200 visual acuity in the better eye with
correcting lenses or having visual acuity greater than 20/200 but
with a field of vision in which the widest diameter subtends an angle
no greater than 20 degrees.
[(9) Center for Independent Living
(CIL)--A private nonprofit agency for individuals with significant
disabilities (regardless of age or income) that is not residential,
is consumer-controlled, is community-based, takes a cross-disability
approach, and:]
[(A) is designed and operated within a local community by individuals with disabilities; and]
[(B) provides an array of independent living services, including, at a minimum, independent living core services as they are defined in 29 U.S.C. §705(17).]
(8) [(10)] CAP--Client
Assistance Program. [(CAP)]--]A federally funded initiative [program] that provides information, assistance,
and advocacy for people with disabilities who are seeking or receiving
services from CAPs [programs] funded under the
Act. The CAP [program] is implemented by Disability
Rights Texas (DRTx), a legal services organization whose mission is
to protect the human, service, and legal rights of persons with disabilities
in Texas.
(9) CIL--Center for Independent Living. A private nonprofit agency for people with significant disabilities (regardless of age or income) that is not residential, is consumer-controlled, is community-based, takes a cross-disability approach; and
(A) is designed and operated within a local community by persons with disabilities; and
(B) provides an array of independent living services, including, at a minimum, independent living core services as they are defined in 29 United States Code (U.S.C.) §705(17).
(10) [(11)] Comparable services or benefits--Services and benefits that are provided or paid for, in whole or part, by other federal, state, or local public programs;
by health insurance, third-party payers, or other private sources;
or by the employee benefits that are available to a person [the consumer] and are commensurate in quality and nature to
the services that the person [consumer] would
otherwise receive from a service provider [providers].
[(12) Consumer--An individual who
has applied for or is receiving the independent living services that
are referred to under this chapter.]
(11) [(13)] Consumer participation--The
financial contribution that a person [consumer]
may be required to pay for receiving independent living services.
(12) Consumer participation agreement--A document signed by a person and a CIL that outlines the percentage of adjusted income a person is required to contribute toward the cost of services.
(13) [(14)] Consumer participation
system--The system for determining and collecting the financial contribution
that a person [consumer] may be required to
pay for receiving independent living services.
[(15) Consumer representative--Any
person chosen by a consumer, including the consumer's parent, guardian,
other family member, or advocate. If a court has appointed a guardian
or representative, that person is the consumer's representative. Unless
documentation is provided showing otherwise, a parent or court-appointed
guardian is presumed to be the consumer representative for a minor who is:]
[(A) younger than 18 years old; and]
[(B) not emancipated; or]
[(C) married.]
[(16) DARS--The Department of Assistive and Rehabilitative Services.]
(14) [(17)] Federal poverty level
guidelines--The poverty guidelines updated periodically in the Federal
Register by the United States Department of Health and Human Services
under the authority of 42 U.S.C. [USC] §9902(2).
(15) [(18)] Fee--A percentage of the full
cost for a purchased service that a person [consumer]
pays. The percentage is based on the HHSC [DARS]
fee schedule and the fee does not exceed the maximum amount prescribed by HHSC.
(16) HHSC--The Texas Health and Human Services Commission.
(17) [(19)] Independent living
plan--A written plan in which a person [the consumer]
and service provider have collaboratively identified the services
that are needed to achieve the person's [consumer's]
goal of living independently.
(18) Independent Living Services Program--The group authorized to oversee the services outlined in 29 U.S.C. §705(17) and (18). In Texas, that authority rests with HHSC. May also be referred to as "the program."
(19) [(20)] Nonprofit--An agency,
organization, or institution that is owned and operated by one or
more corporations or associations whose net earnings do not and cannot
lawfully benefit a private shareholder or entity.
(20) Person--Anyone who has requested, applied for, or is receiving services through the Independent Living Services Program.
(21) Private--An agency, organization, or institution that is not under federal or public supervision or control.
(22) Representative--Anyone chosen by a person served in the program, including the person's parent, guardian, other family member, or advocate. If a court has appointed a guardian or representative, that person is the representative. Unless documentation is provided showing otherwise, a parent or court-appointed guardian is presumed to be the representative for a person who is under 18 years of age and is not emancipated or married.
(23) [(22)] Service provider--A CIL [center for independent living], nonprofit organization,
organization, or other person who contracts with HHSC [contracted
or subcontracted] to provide independent living services.
(24) [(23)] Severe visual impairment--A
condition of having a visual acuity with best correction of 20/70
or less in the better eye, a visual field of 30 degrees or less in
the better eye, or having a combination of both.
(25) [(24)] Significant disability--A
severe physical, mental, cognitive, or sensory impairment that substantially
limits a person's [an individual's] ability
to function independently in the family or community.
(26) [(25)] Sliding fee scale--The fee scale HHSC [DARS] uses to determine the maximum financial
contribution that a person [consumer] may be
required to pay for receiving independent living services. The scale
is based on the federal poverty level guidelines.
(27) Support services--Accommodations provided to a person to assist the person at an appointment with a service provider or vendor. Examples include translators, interpreters, braille, large print, and transportation.
(28) [(26)] Transition services--Services that:
(A) facilitate the transition of a person [individuals] with a significant disability [disabilities] from nursing homes and other institutions to home
and community-based residences, with the requisite supports and services;
(B) provide assistance to a person [individuals
] with a significant disability [disabilities
] who is [are] at risk of entering an
institution [institutions] so that the person [individuals] may remain in the community; and
(C) facilitate the transition of youth [who are
individuals] with significant disabilities, who were eligible
for individualized education programs under section 614(d) of the
Individuals with Disabilities Education Act, 20 U.S.C. §1414(d)
[(20 U.S.C. §1414(d))], and [who]
have completed [their] secondary education or have otherwise
left school[,] to postsecondary life.
(29) Vendor--A person or organization subcontracted by a service provider to provide independent living services.
(30) [(27)] Waived independent
living plan--A written plan in which the service provider identifies
on the behalf of the person [consumer] the services
that are needed to achieve the person's [consumer's]
goal of living independently. The service provider writes the plan
because the person [consumer] has signed a waiver
giving up the person's [consumer's] right to
participate in the development of such a written plan.
(31) Youth with a disability--A person with a disability who is at least 14 years of age but younger than 24 years of age.
§357.107.Service Provider Standards and Contract Requirements.
(a) A service provider must adhere to the service provider's contracts and either the Independent Living Services Standards for Providers or the Independent Living Base/Operational Grant Standards for Service Providers, depending on the type of contract.
(b) A service provider must ensure the quality of any services subcontracted to a vendor.
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 January 22, 2025.
TRD-202500180
Karen Ray
Chief Counsel
Health and Human Services Commission
Earliest possible date of adoption: March 9, 2025
For further information, please call: (817) 458-1902
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; and Texas Human Resources Code §117.080(e), which authorizes the Executive Commissioner of HHSC to adopt rules necessary to implement that section, including requirements applicable to CILs providing independent living services under the program.
The amendment implements Texas Government Code §531.0055 and Texas Human Resources Code §117.080.
§357.201.Allocation of Funds.
(a) HHSC [DARS] allocates to
each service provider the funds needed to carry out the rules in this
chapter. HHSC [DARS] may consider the following
when determining the amount allotted to each service provider:
(1) service area;
(2) population of the area served; and
(3) history of service delivery.
(b) Each service provider must administer the [The] funds [are administered by the designated service
provider] in accordance with the rules in this chapter.
(c) When HHSC [DARS] determines
that a service provider will not spend all of the funds allotted for
a fiscal year to carry out the rules in this chapter, HHSC [DARS] may allot the projected unused portion to other service
providers to provide the covered services in this chapter. The extra
allotment is considered an increase in the other service providers'
allotments for that fiscal year.
(d) A [The] service provider
ensures comparable services or benefits are exhausted before using
funds allocated under this chapter.
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 January 22, 2025.
TRD-202500181
Karen Ray
Chief Counsel
Health and Human Services Commission
Earliest possible date of adoption: March 9, 2025
For further information, please call: (817) 458-1902
26 TAC §§357.305, 357.307, 357.309, 357.311
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; and Texas Human Resources Code §117.080(e), which authorizes the Executive Commissioner of HHSC to adopt rules necessary to implement that section, including requirements applicable to CILs providing independent living services under the program.
The amendments implement Texas Government Code §531.0055 and Texas Human Resources Code §117.080.
§357.305.Eligibility.
(a) To be eligible for independent living services,
a person [consumer] must:
(1) have a significant disability as defined in §357.105
[§104.105(24)] of this chapter (relating to
Definitions); and
(2) reside [be present] in Texas.
(b) A service provider determines eligibility [Eligibility is determined by the service provider,] based on
the documented diagnosis of a licensed practitioner.
[(c) Under Texas Government Code §531.02002,
§531.02014, and Texas Labor Code §351.002, consumers who
are determined to be eligible for independent living services on or
before August 31, 2016, remain eligible on September 1, 2016, and
are considered grandfathered under the former DARS independent living
program and do not need to reapply for independent living services
to the respective receiving agency on September 1, 2016.]
(c) [(d)] Eligibility requirements
are applied without regard to a person's [age, color, creed,
gender, national origin,] race, religion, color, national
origin, disability, age, sex, or in retaliation for prior civil rights
activity [religion, or length of time present in Texas].
(d) [(e)] After a service provider
documents a person [Once a consumer] is [determined
to be] eligible for services, the service provider:
(1) notifies the person [consumer]
or the person's [the consumer's] representative
in writing about the person's [consumer's] fee
[for service], as described in §357.401 [§104.401] of this chapter (relating to Consumer Participation System); [and]
(2) verifies all potential comparable services
or [the] benefits that [of all consumers
who] may be covered for independent living services [by
comparable services or benefits], as provided under this chapter;[,] and
(3) maintains all related documentation.
(e) [(f)] If a service provider
determines that a person [consumer] is ineligible
[not eligible] based on the criteria described [explained] in this section, the service provider must document
[documents] the determination of ineligibility and provide HHSC [provides DARS] with a copy that is
signed and dated by the service provider's executive director or designee.
(1) A [The] service provider
may determine a person [consumer] to be ineligible
for independent living services only after consultation with the person
or the person's representative [consumer] or after
providing a clear opportunity for consultation.
(2) A [The] service provider
notifies a person [the consumer] in writing
of the action taken and informs the person or the person's representative
[the consumer] about the person's [the
consumer's] rights and the means by which the person [the consumer] may appeal the action taken or file a complaint.
(3) A [The] service provider
refers the person [consumer] to other agencies
and facilities, if appropriate, including [referring the consumer]
to the Texas Workforce Commission's [State's]
vocational rehabilitation program.
(4) If a service provider determines that a person [consumer] is ineligible for independent living services, the
service provider reviews the person's [the consumer's]
status again within 12 months of the determination and whenever the
service provider determines that the person's [consumer's
] status has materially changed.
(5) A service provider does not conduct a [A] review of an ineligibility determination [need not be
conducted] if:
(A) the person refuses one; [consumer
has refused one,]
(B) the person [the consumer
is] no longer resides [present] in Texas;[,] or
(C) the person's [the consumer's
] whereabouts are unknown.
§357.307.Independent Living Plan.
(a) General.
(1) Unless a person [the consumer who
will receive independent living services under this chapter]
signs a waiver in accordance with paragraph (2) of this subsection, a [the] service provider works with the person
or the person's representative [consumer] to develop
and periodically review an independent living plan in accordance with
this section.
(2) If a person or the person's representative [the consumer] knowingly and voluntarily signs a waiver stating
that the person or the person's representative waives the right
to participate [consumer's participation] in developing
an independent living plan [is unnecessary], a [the] service provider develops a waived independent living plan on the person's behalf.
(3) A [The] service provider must
provide [provides] each independent living service
in accordance with the independent living plan or waived independent
living plan.
(b) Initiation and development of an independent living plan or a waived independent living plan.
(1) A service provider develops a person's [consumer's] independent living plan or waived independent living
plan [is created] after the person's [the
consumer's] eligibility is documented according to §357.305
[§104.305] of this subchapter [chapter
] (relating to Eligibility). The plan explains the goals or
objectives established and the services to be provided. The plan [It] indicates the anticipated duration of the service plan and
the duration of each [component] service.
[(2) Subject to subsection (a)(2)
of this section, the independent living plan is developed by the service
provider and the consumer or the consumer's representative.]
(2) [(3)] A service provider
provides a [A] copy of the independent living plan or waived independent living plan and any amendments [is
provided] in an accessible format to the person [consumer
] or the person's [the consumer's] representative.
(c) Review.
(1) An [The] independent living
plan or waived independent living plan is reviewed as often as necessary
but at least annually to determine whether to continue, modify, or
discontinue services or refer the person [consumer]
to a vocational rehabilitation program or other [assistance] program.
(2) A person [The consumer] reviews
the independent living plan and, if necessary, revises it and agrees
by signature to its terms.
(d) Coordinating services. A person's [The
] independent living plan or waived independent living plan
must be coordinated by the service provider, to the extent
possible, with any of the following programs [for the consumer]:
(1) a [A] vocational rehabilitation program;
(2) a [A] habilitation program,
prepared under the Developmental Disabilities Assistance and Bill
of Rights Act of 2000; [and]
(3) an [An] education program,
prepared under Part [part] B of the Individuals
with Disabilities Education Act; and[.]
(4) other community, state, or federal programs that align with the person's independent living goals.
(e) Termination of services. If a [the]
service provider intends to terminate services to a person [consumer], the service provider documents the reason on the
independent living plan or waived independent living plan and follows
the procedures described [explained] in §357.305(e)(2)
- (5) [§104.305(f)(2) - (5)] of this subchapter [chapter].
§357.309.Waiting List.
(a) Independent living services are provided when funding is available.
(b) A person [consumer] is placed
on a waiting list by a [the] service provider when:
(1) the service provider determines the person [consumer] meets the eligibility requirements described [explained] in §357.305 [§104.305]
of this subchapter [chapter] (relating to Eligibility);
(2) the person [consumer] has an
[a signed] independent living plan or a waived [waiver stating that an] independent living plan [is unnecessary]; and
(3) there is no funding for a service on the independent living plan or the waived independent living plan that must be purchased.
(c) A service provider must review the service
provider's [The] waiting list [is reviewed]
every six months [by the service provider] to determine
whether a person is [consumers are] still eligible
for and interested in services.
(d) A person is [Consumers are]
removed from a service provider's [the] waiting
list when:
(1) funding becomes available;[,]
(2) the person [consumer]
is no longer eligible;[,] or
(3) the person [consumer]
is no longer interested in receiving services.
§357.311.Scope of Services.
(a) All services listed in subsection (d) of [provided in] this section are subject to the funds HHSC
allocates to each service provider as described in §357.201 [§104.201(d)] of this chapter (relating to Allocation of Funds).
(b) A service provider must make all [All]
services [are] available in an accessible format for a
person [consumers] who relies [rely]
on alternative modes of communication.
(c) A [The] service provider must
provide [provides] each independent living service
in accordance with a person's [the] independent
living plan or waived independent living plan.
(d) A [The] service provider
may provide the following [independent living] services
under this chapter:
(1) independent [Independent]
living core services, which are:
(A) information and referral services;
(B) independent living skills training;
(C) peer counseling, including cross-disability
peer counseling [(including cross-disability peer counseling)];
(D) individual and systems advocacy; and
(E) transition services; and
(2) independent [Independent]
living services, which are:
(A) counseling services, including psychological and psychotherapeutic services;
(B) services for securing housing or shelter,
including community living, [(including community living)]
that support the purposes and titles of the Act, and services related
to securing adaptive housing, including making appropriate modifications
to spaces that serve or are occupied by a person with a disability [(including making appropriate modifications to spaces that serve or
are occupied by individuals with disabilities)];
(C) rehabilitation technology;
(D) mobility training;
(E) services and training for a person [individuals
] with cognitive and sensory disabilities, including life skills
training and interpreter and reader services;
[(F) personal assistance services,
including attendant care and the training of personnel providing such services;]
(F) [(G)] surveys, directories,
and other materials that identify appropriate housing, recreation
opportunities, accessible transportation, and other support services;
(G) [(H)] consumer information
programs on the rehabilitation and independent living services that
are available under the Act[, especially services that are available
for minorities and other individuals with disabilities who have traditionally
been unserved or underserved by programs under the Act];
(H) [(I)] education and training necessary
for living in a community and participating in community activities;
[(I) supported living;]
(I) [(K)] transportation, including
referral services[, personal assistance,] and training
on the use of public transportation vehicles and systems;
(J) [(L)] physical rehabilitation;
(K) [(M)] therapeutic treatment;
(L) [(N)] the provision of needed
prostheses and other appliances and devices;
(M) [(O)] social and recreational
services, including individual and group [(individual
and group)];
(N) [(P)] training for youth
with a disability [disabilities] that is designed
to develop self-awareness, self-esteem, and the ability
to self-advocate, self-empower, and explore career options;
(O) [(Q)] services for children younger than 18 years of age;
(P) [(R)] federal, state, or
local training, counseling, or other assistance designed to help a
person [individuals] with a significant disability [disabilities] become independent and productive and live a good life;
(Q) [(S)] preventive services
that encourage independence and reduce the need for the services that
are available [provided] under the Act;
(R) [(T)] awareness programs
that encourage an understanding of a person [individuals]
with a significant disability [disabilities]
and help the person [individuals] integrate
into the community; and
(S) [(U)] other services, as
needed, which are consistent with the provisions of the Act.
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 January 22, 2025.
TRD-202500182
Karen Ray
Chief Counsel
Health and Human Services Commission
Earliest possible date of adoption: March 9, 2025
For further information, please call: (817) 458-1902
26 TAC §§357.401, 357.403, 357.405
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; and Texas Human Resources Code §117.080(e), which authorizes the Executive Commissioner of HHSC to adopt rules necessary to implement that section, including requirements applicable to CILs providing independent living services under the program.
The amendments implement Texas Government Code §531.0055 and Texas Human Resources Code §117.080.
§357.401.Consumer Participation System.
(a) A [The] service provider
administers the consumer participation system in accordance with the
rules in this chapter, the standards, and the contract requirements.
(b) A [The] service provider
provides independent living core services, as described [defined] in §357.311(d)(1) [§104.311(d)(1)
] of this chapter (relating to Scope of Services), at no cost
to the person [consumer].
(c) Independent living services as described [defined] in §357.311(d)(2) [§104.311(d)(2)
] of this chapter are subject to the rules in this subchapter.
(d) A [The] service provider
gathers financial information about a person [the
consumer] to determine the person's [the consumer's
] adjusted gross income and the percentage of the federal poverty
level for that income.
(e) A [The] service provider
charges a person [the consumer] a fee for each independent living service described [provided]
in §357.311(d)(2) [§104.311(d)(2)]
of this chapter, according to the person's [consumer's]
percentage of the federal poverty level. Medical records charges,
support services, and diagnostic assessments or evaluations for the
purchase of independent living services are exempt from consumer participation.
(f) A person [The consumer] or the person's [consumer's] representative signs a
consumer participation agreement. Signing the agreement acknowledges
the amount of the person's [consumer's] fee
[for services] and provides written agreement that:
(1) the information provided by the person [consumer] or the person's [the consumer's]
representative about the person's [consumer's]
household size, annual gross income, allowable deductions, and comparable
services or benefits is true and accurate; or
(2) the person [consumer] or the
person's [the consumer's] representative chooses
not to provide information about the person's [consumer's
] household size, annual gross income, allowable deductions,
and comparable services or benefits.
(g) A [The] service provider
does not initiate or authorize the independent living services described in §357.311(d)(2) [subject to §104.311(d)(2)
] of this chapter until the person [consumer]
or the person's [the consumer's] representative
signs the consumer [consumer's] participation agreement.
(h) If a person or the person's representative [the consumer] chooses not to provide information on the
person's [the consumer's] household size, annual
gross income, allowable deductions, and comparable services or benefits,
the person or the person's representative [consumer]
agrees to pay the entire cost of services.
(i) A person [The consumer] reports
to the service provider as soon as possible all changes to household
size, annual gross income, allowable deductions, and comparable services
or benefits and signs a new consumer [consumer's]
participation agreement.
(j) When a person [the consumer]
signs a new consumer participation agreement, the new amount
of the person's [consumer's] fee [for service]
takes effect the beginning of the following month. The new amount
is not retroactive.
(k) A [The] service provider
must develop a process to reconsider a person's ability to pay
the fee and adjust the person's [consumer's]
fee [for service] based on circumstances that are both
extraordinary and documented. [This may include assessing the
consumer's ability to pay the consumer's fee for service.]
(l) Only a [the] service provider's
executive director or designee has authority to reconsider and adjust
a person's [consumer's] fee [for service].
(m) Extraordinary circumstances are:
(1) an increase or decrease in income;
(2) unexpected medical expenses;
(3) unanticipated disability related expenses;
(4) a change in family size;
(5) catastrophic loss, such as a fire, flood, or tornado;
(6) short-term financial hardship, such as a major
repair to the person's [consumer's] home or
personally owned vehicle; or
(7) other extenuating circumstances for which the person
[consumer] makes a request and provides supporting documentation.
(n) A person's [The consumer's]
calculated fee [for service] remains in effect during the
reconsideration and adjustment process.
(o) A [The] service provider must:
(1) only use [uses] program income
that is received from the consumer participation system [only]
to provide the independent living services described [that
are outlined] in §357.311(d)(2) [§104.311(d)(2)
] of this chapter; and
(2) report [reports] fees collected
to HHSC [DARS] as program income.
(p) A [The] service provider must
[does] not use program income received from the
consumer participation system to supplement funds from [supplant
] any other [fund] sources.
(q) HHSC [DARS] does not pay
any portion of a person's [the consumer's] fee
[for service].
(r) A consumer [The consumer's]
participation agreement and all financial information collected by a
[the] service provider are subject to:
(1) any data use agreement between HHSC [DARS] and the service provider; and
(2) subpoena.
[(s) The consumer's participation
agreement and all financial information collected by the service provider
are subject to subpoena.]
§357.403.Fee Schedule Amount.
(a) A [The] service provider
is required to use the HHSC [DARS] fee schedule
and instructions to calculate a person's [the consumer's]
fee [for service].
(b) Factors that affect a person's [the
consumer's] fee [for service] are:
(1) household size;
(2) annual gross income; and
(3) allowable deductions.
(c) Household [The household] size equals:
(1) any person living inside or outside
of the home who is eligible to be claimed as a dependent of a
person [the consumer] on the person's [the
consumer's] federal income tax return;[,]
or [,]
(2) if a person [the consumer]
is under 18 years of age [a minor], any other
person living inside or outside of the home who is eligible to be
claimed as a dependent of the person's [consumer's]
parent or guardian on the parent or guardian's federal income tax return.
(d) A person's [The consumer's]
annual gross income:
(1) equals the total annual gross income received by the household; and
(2) includes all income classified as taxable income by the Internal Revenue Service before federally allowable deductions are applied.
(e) A person's [The consumer's]
allowable deductions are limited to [the consumer's] expenses
in the following categories:
(1) attendant care;
(2) rent or home mortgage payments;
(3) court-ordered child support payments made by the person [consumer] for financially dependent children
who were not included in the calculation of household size; and
(4) medical or dental expenses for treatment primarily intended to alleviate or prevent a physical or mental illness or manage a disability, with the expenses limited to the cost of:
(A) diagnosis, cure, alleviation, treatment, or prevention of disease;
(B) treatment of any affected body part or function;
(C) medical services legally delivered by physicians, surgeons, dentists, and other medical practitioners;
(D) medications, medical supplies, and diagnostic devices;
(E) medical and dental health care insurance premiums;
(F) transportation to receive medical or dental care; and
(G) medical or dental debt that the family is paying on an established payment plan.
(f) A [The] service provider
calculates the allowable deductions using the actual amounts a
person [the consumer] paid during the previous 12-month period.
(g) A person [The consumer] provides
the most recent tax return available as proof of annual gross income
and allowable deductions. If a person [the consumer]
has no tax return, the person [the consumer]
provides bank statements, medical records, receipts, proof of benefits
awards, or [and] other documentation to demonstrate
annual gross income and allowable deductions.
(h) If a person [the consumer]
does not provide documentation supporting the household's allowable
deductions, the service provider determines the person's [consumer's] fee [for service] based on the person's
[the consumer's] documented annual gross income
with no allowable deductions.
(i) A person's [The consumer's]
fee [for service] is equal to the amount on the HHSC [DARS sliding] fee schedule [scale] according
to the household's annual adjusted income, that is, the annual
gross income minus the allowable deductions [(that is,
the annual gross income minus the allowable deductions)].
(j) A [The] service provider
uses the most current [sliding] fee schedule [scale] and instructions published by HHSC [DARS]
to determine a person's [the consumer's] fee
[for service].
(k) The procedures, fee schedule, and instructions used
[that DARS uses] to calculate a person's [consumer's] fee [for service] is available from HHSC
[DARS,] between 8:00 a.m. and 5:00 p.m. on business days.
§357.405.Insurance Payments.
(a) If a person [the consumer]
has medical [and dental] insurance that covers an independent
living service received by the person [consumer and
the agreement for in-network services made between the insurance company
and the service provider or service provider's subcontractor requires
that the service provider or subcontractor accept as payment in full
the deductible, copayment, or coinsurance and insurance reimbursement],
then the person's [consumer's] fee [for
service] is either the insurance deductible, copayment,
or coinsurance, or the amount calculated by the HHSC [DARS
] fee schedule, whichever is less.
(b) A person [The consumer] pays
the premiums for medical [and dental] insurance. Neither HHSC [DARS] nor a [the] service
provider pays the premiums.
(c) The premiums for medical [and dental]
insurance do not count toward meeting the person's [consumer's
] fee [for service].
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 January 22, 2025.
TRD-202500183
Karen Ray
Chief Counsel
Health and Human Services Commission
Earliest possible date of adoption: March 9, 2025
For further information, please call: (817) 458-1902
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; and Texas Human Resources Code §117.080(e), which authorizes the Executive Commissioner of HHSC to adopt rules necessary to implement that section, including requirements applicable to CILs providing independent living services under the program.
The amendments implement Texas Government Code §531.0055 and Texas Human Resources Code §117.080.
§357.501.Personal Rights [of Consumers].
(a) In accordance with applicable legal provisions, HHSC
[DARS] does not, directly or through contractual
or other arrangements, exclude, deny benefits to, limit the participation
of, or otherwise discriminate against any person [individual
] on the basis of race, religion, [age,]
color, [disability,] national origin, disability, [political belief, race, religion,] sex, age, or in retaliation
for prior civil rights activity [or sexual orientation].
For the purposes of receiving independent living services, a
person [the consumer] must have a significant disability;
however, that requirement is not considered discrimination against anyone
[any individual] on the basis of disability.
(b) A [The] service provider must
notify a person [notifies the consumer] in writing
about the rights included in subsection (a) of this section; §357.401
of this chapter (relating to Consumer Participation System); and §357.503
[§104.503] of this subchapter [chapter
] (relating to Complaint Process)[; and §104.401 of
this chapter (relating to Consumer Participation System)]:
(1) when a person [consumer]
applies for services;
(2) when the service provider determines that a person
[consumer] is ineligible for services; and
(3) when the service provider intends to terminate a person's services.
(c) A service provider must make personal [Consumer] rights [are] available in an accessible
format for a person [consumers] who relies [rely] on alternative modes of communication.
§357.503.Complaint Process.
(a) Filing a complaint [with DARS] through
the HHSC [Health and Human Services Commission]
Office of Ombudsman.
(1) A person [consumer] may file
a complaint with the HHSC Office of Ombudsman [DARS]
alleging that a service provider violated a requirement
of the program [independent living services was violated].
A person may file a complaint [may be filed]
directly with the HHSC Office of Ombudsman [DARS]
without filing the complaint [having been filed]
with the service provider.
(2) A complaint may be filed by:
(A) mail: [to DARS:] Texas Health
and Human Services Commission, Office of the Ombudsman, MC H-700,
P.O. Box 13247, Austin, Texas 78711-3247;
(B) phone: 1-877-787-8999 or Relay Texas for people
with a hearing or speech disability at[:] 7-1-1
or 1-800-735-2989;
(C) fax: 1-888-780-8099; or
(D) online: on the HHS website, HHS Office of
the Ombudsman. [: http://www.hhsc.state.tx.us/ombudsman/contact.shtml]
(3) More information regarding the complaint process
may be obtained by calling the Office of the Ombudsman at 1-877-787-8999
or Relay Texas for people with a hearing or speech disability at[:] 7-1-1 or
1-800-735-2989.
(b) Filing a discrimination complaint with the HHSC Civil Rights Office (CRO).
(1) The HHSC CRO sets policies and procedures to address complaints resulting from alleged discrimination.
(2) A person may file a complaint with the HHSC CRO alleging that HHSC or an HHSC agency contractor discriminated against the person based on a protected category listed in §357.501(a) of this subchapter (relating to Personal Rights). A person may file a complaint directly with the HHSC CRO without filing the complaint with the service provider.
(3) A discrimination complaint may be filed by:
(A) phone: 1-888-388-6322 or 512-438-4313;
(B) email: HHSCCivilRightsOffice@hhs.texas.gov;
(C) fax: 512-438-5885; or
(D) mail: Civil Rights Office, Health and Human Services Commission, P.O. Box 13247, Mail Code 1560, Austin, Texas 78711.
(c) [(b)] Filing a complaint
with the Client Assistance Program (CAP).
(1) The CAP is implemented by Disability Rights Texas (DRTx), a legal services organization whose mission is to protect the human, service, and legal rights of persons with disabilities in Texas.
(2) DRTx advocates are not employees of HHSC [DARS]. There are no fees for CAP services, which are provided
by advocates and attorneys when necessary. Services are confidential.
(3) A person [consumer] enrolled
in the program [independent living services]
or the person's [the consumer's] representative
may file a complaint with DRTx alleging that a service provider violated
a requirement of the program [independent living services
]. A person may file a [The] complaint directly
with DRTx without filing the complaint [need not be filed]
with the service provider.
(4) A complaint may be filed by:
(A) phone: 1-800-252-9108; or
(B) videophone: 1-866-362-2851.
(5) More information about the complaint process is available by calling DRTx at 1-800-252-9108 or videophone at 1-866-362-2851.
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 January 22, 2025.
TRD-202500184
Karen Ray
Chief Counsel
Health and Human Services Commission
Earliest possible date of adoption: March 9, 2025
For further information, please call: (817) 458-1902
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; and Texas Human Resources Code §117.080(e), which authorizes the Executive Commissioner of HHSC to adopt rules necessary to implement that section, including requirements applicable to CILs providing independent living services under the program.
The amendment implements Texas Government Code §531.0055 and Texas Human Resources Code §117.080.
§357.601.[Administering Agency's
Role in Providing] Technical Assistance Provided by HHSC.
(a) HHSC provides [DARS gives the service
provider] technical assistance to a service provider,
as needed, to help the service provider offer a full range of independent
living services.
(b) Technical assistance provided by HHSC may include:
(1) help to expand a service provider's capacity to provide a full range of independent living services; and
(2) training on:
(A) the independent living philosophy; and
(B) the administration, operation, evaluation, and performance of independent living services according to the rules in this chapter, the standards, and the contract requirements.
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 January 22, 2025.
TRD-202500185
Karen Ray
Chief Counsel
Health and Human Services Commission
Earliest possible date of adoption: March 9, 2025
For further information, please call: (817) 458-1902
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; and Texas Human Resources Code §117.080(e), which authorizes the Executive Commissioner of HHSC to adopt rules necessary to implement that section, including requirements applicable to CILs providing independent living services under the program.
The amendment implements Texas Government Code §531.0055 and Texas Human Resources Code §117.080.
§357.701.Referrals Received by HHSC [Expectations of Administering Agency's] Employees.
(a) HHSC refers a person [Individuals]
seeking independent living services to a service provider as
described in subsection (b) of this section [are referred
to the local service provider].
(b) If a person [an individual]
calls HHSC [DARS] to request independent living
services, HHSC [DARS]:
(1) gives the person [individual]
the contact information for the nearest service provider,
which can be found on the HHSC website under Independent Living Services;
(2) obtains the person's [individual's]
permission to forward the person's [the individual's]
name and contact information to the service provider; and
(3) forwards the person's [individual's]
name and contact information to the service provider.
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 January 22, 2025.
TRD-202500186
Karen Ray
Chief Counsel
Health and Human Services Commission
Earliest possible date of adoption: March 9, 2025
For further information, please call: (817) 458-1902