PART 2. TEXAS ETHICS COMMISSION
CHAPTER 40. FINANCIAL DISCLOSURE FOR PUBLIC OFFICERS
1 TAC §§40.2, 40.3, 40.5, 40.9, 40.11, 40.13, 40.15
The Texas Ethics Commission (the TEC) proposes amendments to Texas Ethics Commission Rules in Chapter 40 regarding Financial Disclosure for Public Officers.
Specifically, the TEC proposes amendments to rules §40.2 regarding Disclosure of Financial Activity and §40.11 regarding Publicly Traded Corporation as Source of Income. The TEC also proposes new rules §40.3 regarding PFS Required for Each Year of Service, §40.5 regarding Assets and Liabilities of Business Associations, §40.9 regarding Exchange Traded Funds and Real Estate Investment Trusts, §40.13 regarding Beneficial Interest in Real Property Includes Real Property Held in a Trust, and §40.15 regarding Identification of the Source of Rents Derived From Rental Property.
State law requires state agencies to "review and consider for readoption each of its rules ... not later than the fourth anniversary of the date on which the rule takes effect and every four years after that date." Tex. Gov't Code §2001.039. The law further requires agencies to "readopt, readopt with amendments, or repeal a rule as the result of reviewing the rule under this section." Id. The TEC is authorized to adopt rules to administer Chapter 572 of the Government Code. Tex. Gov't Code §§ 571.061, .062.
The TEC is continuing its comprehensive review with a review of the TEC's rules regarding financial disclosures, which are codified in Chapter 40. The adoption of amendments to some rules and new rules seek to clarify the rules related to filers submitting personal financial statements.
The rules and amendments are designed to more closely track statutory language and to provide more clarity and notice of the TEC's interpretations of the statutory requirements of Chapter 572 of the Government Code.
James Tinley, General Counsel, has determined that for the first five-year period the proposed amended and new rules are in effect, there will be no fiscal implications for state or local government as a result of enforcing or administering the proposed amended and new rules. The public will benefit from clear rules that should result in uniform and complete disclosures of information required by Chapter 572 of the Government Code. The state officers required to make the disclosure will similarly benefit from clear rules related to the personal financial statement. The proposed rules do not impose a burden beyond the statutory requirements in Chapter 572.
The General Counsel has also determined that for each year of the first five years the proposed amended and new rules are in effect, the public benefit will be consistency and clarity in the Commission's rules regarding personal financial statements. There will not be an effect on small businesses, microbusinesses or rural communities. There is no anticipated economic cost to persons who are required to comply with the proposed amended and new rules.
The General Counsel has determined that during the first five years that the proposed amended and new rules are in effect, they will not: create or eliminate a government program; require the creation of new employee positions or the elimination of existing employee positions; require an increase in future legislative appropriations to the agency; require an increase or decrease in fees paid to the agency; expand, limit, or repeal an existing regulation; create a new regulation; increase or decrease the number of individuals subject to the rules' applicability; or positively or adversely affect this state's economy.
The Commission invites comments on the proposed amended and new rules from any member of the public. A written statement should be emailed to public_comment@ethics.state.tx.us, or mailed or delivered to J.R. Johnson, Executive Director, Texas Ethics Commission, P.O. Box 12070, Austin, Texas 78711-2070. A person who wants to offer spoken comments to the Commission concerning the proposed amended and new rules may do so at any Commission meeting during the agenda item relating to the proposed amended and new rules. Information concerning the date, time, and location of Commission meetings is available by telephoning (512) 463-5800 or on the Commission's website at www.ethics.state.tx.us.
The amended and new rules are proposed under Texas Government Code §571.062, which authorizes the Commission to adopt rules to administer Chapter 572 of the Government Code.
The proposed amended and new rules affect Chapter 572 of the Government Code.
§40.2.Disclosure of Financial Activity.
For purposes of §572.023 of the Government Code, a filer's personal financial statement must include:
(1) the filer's financial activity in which the filer held an ownership interest, including but not limited to community property; and
(2) the financial activity of the filer's spouse and
dependent children if the filer exercised [or held the right
to exercise] any degree of [legal or] factual control
over the activity, notwithstanding a partition agreement.
§40.3.PFS Required for Each Year of Service.
(a) A state officer who serves for any portion of a calendar year must file a PFS the following year covering financial activity that occurred during the portion of the year the state officer held office.
(b) A member of the legislature who retires at the end of the member's term in January is not required to file a PFS covering the calendar year of service in which member retires.
(c) Comments:
(1) For example, under subsection 40.3(a) of this section, if a state officer ceases to be a state officer in October 2024, the state officer is required to file a PFS in by the deadline provided by §572.026(a) of the Government Code in calendar year 2025, covering financial activity that occurred through October 2024, provided the state officer does not holdover.
(2) Under subsection 40.3(b) of this section, a member of the legislature who retires at the end of the member's term in January 2025 is required to file a PFS in 2025 covering calendar year 2024. The member is not required to file a PFS in calendar year 2026 covering calendar year 2025 by virtue of service from January 1 to January 6 of 2025, before the member's successor is sworn into office.
§40.5.Assets and Liabilities of Business Associations.
Assets and liabilities of business associations that must be reported under §572.023(b)(9) of the Government Code shall be reported as though they are the assets and liabilities of the individual filer.
§40.9.Exchange Traded Funds and Real Estate Investment Trusts.
Ownership interests in exchange-traded funds and real estate investment trusts shall be reported under §572.023(b)(2) of the Government Code as though they were shares of stock.
§40.11.Publicly Traded Corporation as
Source of Income [over $500].
For purposes of §572.023(b)(4), Government Code, a publicly traded corporation is identified as a source of income by disclosing its full name in addition to the category of the amount of income.
§40.13.Beneficial Interest in Real Property Includes Real Property Held in a Trust.
(a) Except as provided in subsection (b), a filer must disclose real property held in a trust for the benefit of the filer as a beneficial interest in real property under §572.023(b)(6) of the Government Code.
(b) A filer is not required to disclose real property held in a blind trust that complies with §572.023(c) of the Government Code only if the filer does not have actual knowledge of the property held in a trust for the filer's benefit.
§40.15.Identification of the Source of Rents Derived from Rental Property.
An identification of the source of rents derived from a rental property must include the name of the lessee and the address of the rental property.
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 October 17, 2024.
TRD-202404901
Jim Tinley
General Counsel
Texas Ethics Commission
Earliest possible date of adoption: December 1, 2024
For further information, please call: (512) 463-5800
The Texas Ethics Commission (TEC) proposes amendments to 1 Texas Administrative Code, Chapter 50, §50.1, regarding the Legislative Per Diem. The existing rule and the proposed amendments implements the Constitutional requirement that the TEC set the legislative per diem rate. Tex. Const. art. III, §§ 24(a), 24a(e).
The Texas Constitution requires the TEC to set the per diem to which members of the legislature and the lieutenant governor are entitled for each day during each regular and special session of the Legislature. Id. The per diem rate shall reflect "reasonable estimates of costs" and may be raised or lowered biennially, but "may not exceed during a calendar year the amount allowed as of January 1 of that year for federal income tax purposes as a deduction for living expenses incurred in a legislative day by a state legislator in connection with the legislator's business as a legislator." Id.
Under the Internal Revenue Code, a state legislator may deduct the greater of the federal employees' per diem (the "GSA rate") or the legislator's state per diem, as long as the state legislator's per diem does not exceed 110 percent of the GSA rate. 26 U.S.C. § 162(h)(1)(B). Therefore, the Texas Constitution allows the TEC to set the per diem rate at no more than 110 percent of the GSA rate.
The GSA rate is made up of the lodging rate, and meals and incidental expenses rate prescribed by the GSA and published exclusively on its website. The GSA rate for Austin as of January 1, 2025, is $267 (of which $187 is lodging and $80 is meals and incidental expenses).
The rule as amended would set the per diem for members of the legislature and the lieutenant governor at $267 for each day during the regular session and any special session. The proposed rule amendment sets the per diem equal to the GSA rate as a reasonable estimate of costs associated with the legislature attending the legislative session in Austin.
James Tinley, General Counsel, has determined that for the first five-year period the proposed amended rule is in effect, there will be no fiscal implications for local government as a result of enforcing or administering the proposed rule. The fiscal implication for the state over the first five years will be an increase of $3,516,240 over the current per diem rate. The fiscal impact calculation assumes there will be three legislative session in the next five years. The impact may increase if one or more special legislative sessions are called.
The General Counsel has also determined that for each year of the first five years the proposed amended rule is in effect, the public benefit from the members of the legislature receiving a per diem in compliance with the Texas Constitution that reflects a reasonable estimate of cost for their attendance in Austin for legislative sessions, outweighs the cost. There will not be an effect on small businesses, microbusinesses or rural communities. There is no anticipated economic cost to persons who are required to comply with the proposed amended rule.
The General Counsel has determined that during the first five years that the proposed amended rule is in effect, it will not: create or eliminate a government program; require the creation of new employee positions or the elimination of existing employee positions; require an increase in future legislative appropriations to the agency; require an increase or decrease in fees paid to the agency; expand, limit, or repeal an existing regulation; or increase or decrease the number of individuals subject to the rule’s applicability.
The Commission invites comments on the proposed amended rule from any member of the public. A written statement should be emailed to public_comment@ethics.state.tx.us, or mailed or delivered to J.R. Johnson, Texas Ethics Commission, P.O. Box 12070, Austin, Texas 78711-2070. A person who wants to offer spoken comments to the Commission concerning the proposed amended rule may do so at any Commission meeting during the agenda item relating to the proposed amended rule. Information concerning the date, time, and location of Commission meetings is available by telephoning (512) 463-5800 or on the Commission's website at www.ethics.state.tx.us
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
The amendments are proposed under Texas Government Code §571.062, which authorizes the Commission to adopt rules to administer Title 15 of the Election Code.
The proposed amended rule affects amendment affects the Texas Constitution, Article III, §24; Article III, §24a; and Article IV, §17.
§50.1.Legislative Per Diem.
(a) The legislative per diem is $267 [$221
]. The per diem is intended to be paid to each member of the
legislature and the lieutenant governor for each day during the regular
session and for each day during any special session.
(b) If necessary, this rule shall be applied retroactively
to ensure payment of the $267 [$221] per diem
for 2025 [2019].
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 October 17, 2024.
TRD-202404900
Jim Tinley
General Counsel
Texas Ethics Commission
Earliest possible date of adoption: December 1, 2024
For further information, please call: (512) 463-5800
CHAPTER 351. COORDINATED PLANNING AND DELIVERY OF HEALTH AND HUMAN SERVICES
SUBCHAPTER B. ADVISORY COMMITTEES
DIVISION 1. COMMITTEES
The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes the repeal of §351.847, concerning Aging Texas Well Advisory Committee, and new §351.847, concerning the Aging Texas Well Advisory Committee; and the repeal of §351.849, concerning the Texas Respite Advisory Committee, and new §351.849, concerning Texas Respite Advisory Committee.
BACKGROUND AND PURPOSE
The Aging Texas Well Advisory Committee (ATWAC) is established under Executive Order Rick Perry (R.P.) 42 and by the executive commissioner in accordance with Texas Government Code §523.0201 and is subject to Texas Administrative Code §351.801. The committee advises the executive commissioner and HHSC on aging topics and issues and makes recommendations to HHSC and state leadership consistent with Executive Order R.P. 42.
The ATWAC is set to abolish on March 1, 2026. Abolition of the ATWAC would result in the loss of a primary source of public input for key aging programs and initiatives. The proposed new §351.847 updates the agency name from the Department of Aging and Disability Services (DADS) to HHSC, per Senate Bill (S.B.) 200, 84th Legislature, Regular Session, 2015; extends the abolishment date to March 1, 2032, and revises the rule in several places to ensure the rule conforms with HHSC's advisory committee rule standards.
The Texas Respite Advisory Committee (TRAC) is established under Texas Government Code §523.0201; Texas Government Code Chapter 2110; Texas Human Resources Code §161.079; The Lifespan Respite Care Act, 42 United States Code §300ii; and is subject to §351.801. The committee advises the executive commissioner and the health and human services system on developing strategies to reduce barriers to accessing respite services; improving the quality of respite services; and providing training, education, and support to family caregivers.
The TRAC is set to abolish on March 1, 2026. Abolition of the TRAC would result in the loss of a primary source of public input for developing strategies to reduce barriers to accessing respite services and improve the quality of respite services in Texas.
The proposed new §351.849 updates the agency name from DADS to HHSC, per S.B. 200, 84th Legislature, Regular Session, 2015; extends the abolishment to March 1, 2028, and revises the rule in several places to ensure the rule conforms with HHSC's advisory committee rules standards.
The proposed rule language for both sections updates certain citations to the Texas Government Code as modified by House Bill (H.B.) 4611, 88th Legislature, Regular Session, 2023. HB 4611 made certain non-substantive revisions to Subtitle I, Title 4, Texas Government Code, which governs HHSC, Medicaid, and other social services as part of the legislature's ongoing statutory revision program. The updated citations will become effective on April 1, 2025.
SECTION-BY-SECTION SUMMARY
The proposed repeal of §351.847 deletes the rule as currently written.
New §351.847: (1) updates the rule language and organization by aligning it with HHSC's advisory committee rule standards; (2) replaces "DADS" with "HHSC" throughout the rule; (3) adds subsections regarding required training and travel reimbursement; and (4) updates the date of abolishment in subsection (j) from March 1, 2026, to March 1, 2032.
The proposed repeal of §351.849 deletes the rule as currently written.
New §351.849: (1) updates the rule language and organization by aligning it with HHSC's advisory committee rule standards; (2) replaces "DADS" with "HHSC" throughout the rule; (3) adds subsections regarding required training and travel reimbursement; (3) decreases the committee membership from "no more than 24 members" to "15 members;" and (4) updates the date of abolishment in subsection (j) from March 1, 2026, to March 1, 2028.
FISCAL NOTE
Trey Wood, Chief Financial Officer, has determined that for each year of the first five years that the repeals and new rules will be in effect, enforcing or administering the repeals and new rules do 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 and new rules will be in effect:
(1) the proposed repeals and new rules will not create or eliminate a government program;
(2) implementation of the proposed repeals and new rules will not affect the number of HHSC employee positions;
(3) implementation of the proposed repeals and new rules will result in no assumed change in future legislative appropriations;
(4) the proposed repeals and new rules will not affect fees paid to HHSC;
(5) the proposed repeals and new rules will create new regulations;
(6) the proposed repeals and new rules will repeal existing regulations;
(7) the proposed repeals and new rules will not change the number of individuals subject to the rules; and
(8) the proposed repeals and new 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 because the proposed new rules apply only to HHSC.
LOCAL EMPLOYMENT IMPACT
The proposed repeals and new rules will not affect a local economy.
COSTS TO REGULATED PERSONS
Texas Government Code §2001.0045 does not apply to these repeals and new rules because the rules are necessary to protect the health, safety, and welfare of the residents of Texas; 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
Haley Turner, Deputy Executive Commissioner of Community Services, has determined that for each year of the first five years the repeals and new rules are in effect, the public benefit will be that the ATWAC and TRAC continue to advise HHS agencies on key aging initiatives and development of strategies to reduce barriers to accessing respite services and improvement of quality of respite services.
Trey Wood has also determined that for the first five years the repeals and new rules are in effect, there are no anticipated economic costs to persons who are required to comply with the proposed rules because the rules only apply to HHSC.
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 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 24R022" 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, Texas Government Code Chapter 2110, which establishes how a state agency may create an advisory committee, Texas Government Code §523.0201, which provides that the Executive Commissioner of HHSC shall establish and maintain advisory committees, Texas Human Resources Code §161.079, relating to informal caregiver services, and The Lifespan Respite Care Act, 42 United States Code §300ii.
The repeals affect Texas Government Code §531.0055, Chapter 2110, Texas Government Code §523.0201 and Texas Human Resources Code §161.079.
§351.847.Aging Texas Well Advisory Committee.
§351.849.Texas Respite Advisory Committee.
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 October 21, 2024.
TRD-202404919
Karen Ray
Chief Counsel
Texas Health and Human Services Commission
Earliest possible date of adoption: December 1, 2024
For further information, please call: (512) 840-8536
STATUTORY AUTHORITY
The new sections 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 Chapter 2110, which establishes how a state agency may create an advisory committee, Texas Government Code §523.0201, which provides that the Executive Commissioner of HHSC shall establish and maintain advisory committees, Texas Human Resources Code §161.079, relating to informal caregiver services, and The Lifespan Respite Care Act, 42 United States Code §300ii.
The new sections affect Texas Government Code §531.0055, Chapter 2110, Texas Government Code §523.0201 and Texas Human Resources Code §161.079.
§351.847.Aging Texas Well Advisory Committee.
(a) Statutory Authority. Aging Texas Well Advisory Committee (ATWAC) is established under Executive Order R.P. 42 and by the Texas Health and Human Services Commission (HHSC) executive commissioner in accordance with Texas Government Code §523.0201. The committee is subject to §351.801 of this division (relating to Authority and General Provisions).
(b) Purpose. The committee advises the executive commissioner and HHSC on aging topics and issues and makes recommendations to HHSC and state leadership consistent with Executive Order R.P. 42.
(c) Tasks. The committee performs the following tasks:
(1) identifies and discusses aging policy issues;
(2) assesses state government readiness to address issues facing older Texans;
(3) promotes increased local community preparedness for aging Texans;
(4) assists HHSC by providing recommendations on aging issues and the Aging Texas Well Plan; and
(5) adopts bylaws to guide the operation of the committee.
(d) Reporting requirements. By August 31 of each year, the committee files an annual written report with the executive commissioner covering the meetings and activities in the immediately preceding fiscal year. The report includes:
(1) a list of the meeting dates;
(2) the members' attendance records;
(3) a brief description of actions taken by the committee;
(4) a description of how the committee accomplished its tasks;
(5) a description of activities the committee anticipates undertaking in the next fiscal year;
(6) recommended amendments to this section; and
(7) the costs related to the committee, including the cost of HHSC staff time spent supporting the committee's activities and the source of funds used to support the committee's activities.
(e) Meetings.
(1) Open meetings. The ATWAC complies with the requirements for open meetings under Texas Government Code Chapter 551 as if it were a governmental body.
(2) Frequency. The ATWAC will meet quarterly.
(3) Quorum. A majority of all members constitutes a quorum for the purpose of transacting official business.
(f) Membership.
(1) The committee is composed of up to 18 members appointed by the executive commissioner. In selecting members to serve on the committee, HHSC considers the applicants' qualifications, background, and interest in serving.
(A) Eleven voting members representing the following categories.
(i) One member representing Area Agencies on Aging.
(ii) One member representing Aging and Disability Resource Centers.
(iii) Nine members representing any of the following:
(I) the academic community;
(II) advocates for older adults, including family or caregivers;
(III) older adults;
(IV) faith-based organizations;
(V) non-profit organizations;
(VI) the aging service-delivery network;
(VII) providers from an adult residential setting;
(VIII) providers from a community setting;
(IX) providers serving persons with disabilities; and
(X) providers of community services.
(B) Up to seven non-voting, ex officio members representing the following.
(i) Texas Department of State Health Services.
(ii) Texas Department of Family and Protective Services.
(iii) Texas Department of Housing and Community Affairs.
(iv) Texas Workforce Commission.
(v) Texas Department of Public Safety.
(vi) Texas Department of Transportation.
(vii) Higher Education Coordinating Board.
(2) Members are appointed for staggered terms so that the terms of an equal or almost equal number of members expire August 31 of each year. Regardless of the term limit, a member serves until his or her replacement has been appointed. This ensures sufficient, appropriate representation.
(A) If a vacancy occurs, the executive commissioner will appoint a person to serve the unexpired portion of that term.
(B) Except as may be necessary to stagger terms, the term of each member is three years. A member may apply to serve one additional term.
(C) This subsection does not apply to ex officio members, who serve at the pleasure of the executive commissioner and do not have the authority to vote on items before the full committee.
(g) Officers. The committee selects a chair and vice chair of the committee from among its members.
(1) The chair serves until December 1 of each even-numbered year. The vice chair serves until December 1 of each odd-numbered year.
(2) A member may serve up to two consecutive terms as chair or vice chair.
(h) Required Training. Each member must complete training on relevant statutes and rules, including this section and §351.801 of this division, Texas Government Code §523.0201, Texas Government Code Chapters 551, 552, and 2110, the HHS Ethics Policy, the Advisory Committee Member Code of Conduct, and other relevant HHS policies. Training will be provided by HHSC.
(i) Travel Reimbursement. Unless permitted by the current General Appropriations Act, members of the committee are not paid to participate in the committee nor reimbursed for travel to and from meetings.
(j) Date of abolition. The committee is abolished and this section expires on March 1, 2032.
§351.849.Texas Respite Advisory Committee.
(a) Statutory Authority. The Texas Respite Advisory Committee (TRAC) is established under Texas Government Code §523.0201; Texas Government Code Chapter 2110; Texas Human Resources Code §161.079; The Lifespan Respite Care Act, 42 United States Code §300ii; and is subject to Texas Administrative Code §351.801 of this division (relating to Authority and General Provisions).
(b) Purpose. The committee advises the Texas Health and Human Services Commission (HHSC) executive commissioner and health and human services system (HHS) on developing strategies to reduce barriers to accessing respite services; improving the quality of respite services; and providing training, education, and support to family caregivers.
(c) Tasks. The committee performs the following tasks:
(1) assists HHSC to identify barriers and best practices for providing and coordinating respite services in Texas;
(2) responds to requests from HHSC for information about the respite needs of caregivers;
(3) advises HHSC about effective methods for expanding the availability of affordable respite services in Texas through the use of funds available from respite care programs;
(4) cooperates and shares resources and knowledge among community stakeholders to facilitate barrier free access for primary caregivers;
(5) educates the public on the need for community-based options for primary caregivers; and
(6) adopts bylaws to guide the operation of the committee.
(d) Reporting requirements. By July 1 of each year, the committee files an annual written report with the executive commissioner covering the meetings and activities in the immediately preceding fiscal year. The report includes:
(1) a list of the meeting dates;
(2) the members' attendance records;
(3) a brief description of actions taken by the committee;
(4) a description of how the committee accomplished its tasks;
(5) a description of activities the committee anticipates undertaking in the next fiscal year;
(6) recommended amendments to this section; and
(7) the costs related to the committee, including the cost of HHSC staff time spent supporting the committee's activities and the source of funds used to support the committee's activities.
(e) Meetings.
(1) Open meetings. In accordance with statute, the TRAC complies with the requirements for open meetings under Texas Government Code Chapter 551 as if it were a governmental body.
(2) Frequency. The TRAC will meet quarterly.
(3) Quorum. Eight of all members constitutes a quorum.
(f) Membership.
(1) The committee is composed of 15 members appointed by the executive commissioner. In selecting members to serve on the committee, HHSC considers the applicants' qualifications, background, and interest in serving. HHSC tries to choose committee members who represent the diversity of all Texans, including ethnicity, gender, and geographic location. Fifteen voting members representing the following categories:
(A) family caregivers;
(B) primary caregivers;
(C) providers of respite services;
(D) faith-based organizations;
(E) espite care advocacy organizations; and
(F) members of the general public interested in the issue of respite care.
(2) Members are appointed for staggered terms so that the terms of an equal or almost equal number of members expire on December 31 of each year. Regardless of the term limit, a member serves until his or her replacement has been appointed. This ensures sufficient, appropriate representation.
(A) If a vacancy occurs, the executive commissioner will appoint a person to serve the unexpired portion of that term.
(B) Except as may be necessary to stagger terms, the term of each member is three years. A member may apply to serve one additional term.
(g) Officers. The committee selects a chair and vice chair of the committee from among its members.
(1) The chair serves until January 1 of each even-numbered year. The vice chair serves until January 1 of each odd-numbered year.
(2) A member may serve up to two consecutive terms as chair or vice chair.
(h) Required Training. Each member must complete training on relevant statutes and rules, including this section and §351.801 of this division, Texas Government Code §523.0201, Texas Government Code Chapters 551, 552, and 2110, the HHS Ethics Policy, the Advisory Committee Member Code of Conduct, and other relevant HHS policies. Training will be provided by HHSC.
(i) Travel Reimbursement. To the extent permitted by the current General Appropriations Act, a member of the committee may be reimbursed for their travel to and from meetings if funds are appropriated and available and in accordance with the HHSC Travel Policy.
(j) Date of abolition. The committee is abolished and this section expires on March 1, 2028.
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 October 21, 2024.
TRD-202404920
Karen Ray
Chief Counsel
Texas Health and Human Services Commission
Earliest possible date of adoption: December 1, 2024
For further information, please call: (512) 840-8536
SUBCHAPTER E. COMMUNITY CARE FOR AGED AND DISABLED
The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §355.503, concerning Reimbursement Methodology for the Community-Based Alternatives Waiver Program and the Integrated Care Management-Home and Community Support Services and Assisted Living/Residential Care Programs, and §355.507, concerning Reimbursement Methodology for the Medically Dependent Children Program.
BACKGROUND AND PURPOSE
The purpose of the proposal is to clarify the reimbursement methodologies for the long-term services and supports (LTSS) state plan and waiver services delivered through managed care. HHSC maintains fee schedules for LTSS programs and services delivered in STAR+PLUS or STAR Kids programs that represent the rates HHSC would pay contracted providers for these services if the services were delivered under a fee-for-service delivery model. The proposed amendments ensure that HHSC has an established rate methodology for all the services delivered in managed care based on the STAR+PLUS and STAR Kids LTSS billing matrices. The proposal relabels and adds language to the rules to reference the STAR+PLUS and STAR Kids managed care programs and removes references to the expired Community-Based Alternatives Waiver Program and Integrated Care Management-Home and Community Support Services Program. The proposal also consolidates rate methodologies for LTSS state plan services delivered through STAR+PLUS and STAR Kids into the applicable Texas Administrative Code rule. The proposal revises the rate methodology for out-of-home respite under STAR Kids Medically Dependent Children Program (MDCP) to mirror proposed waiver changes and the published billing matrix. Finally, the proposal adds language to the rules to distinguish in-home and out-of-home settings for home health care services, including nursing, occupational therapy, and physical therapy, to ensure compliance with the 21st Century Cures Act, which requires all states to implement the use of electronic visit verification (EVV).
SECTION-BY-SECTION SUMMARY
The proposed amendment to §355.503 changes the title to "Reimbursement Methodology for Long-Term Services and Supports State Plan and Home and Community-Based Services Waiver Program Services Delivered through the STAR+PLUS Managed Care Program." Language is revised to remove references to expired programs and add references to STAR+PLUS LTSS State Plan and STAR+PLUS Home and Community-Based Services (HCBS) services, as well as to distinguish between Community First Choice (CFC) and non-CFC services. Language is added to differentiate between in-home and out-of-home nursing services, physical therapy, and occupational therapy. "Assisted Living/Residential Care (AL/RC)" is changed to "assisted living (AL) services" to accurately reflect services offered under STAR+PLUS. Other edits are made to correct or clarify language, correct numbering, and formatting.
Section 355.503 subsection (a) is revised to specify that the rule establishes the fee-for-service (FFS) equivalent rate methodology for services delivered through STAR+PLUS. New subsection (b) is added to describe rate methodologies for STAR+PLUS LTSS state plan services. Subsection (c)(1) is revised to remove language about total allowable costs that is no longer relevant, clarify what is included in the administration and facility cost area, and add language specific to the CFC Personal Attendant Services (PAS) and habilitation reimbursement methodology. Subsection (c)(2) is revised to remove language about updates to federal supplemental security income that is no longer relevant. Subsection (e) is revised to remove language about the number of cost reports to be submitted based on rate enhancement program participation that is no longer relevant.
The proposed amendment to §355.507 changes the title to "Reimbursement Methodology for Long-Term Services and Supports State Plan and Medically Dependent Children Waiver Program Services Delivered through the STAR Kids and STAR Health Managed Care Programs." Language is revised to add references to STAR Kids and STAR Health, distinguish between CFC and non-CFC services, and update service names for in-home respite and flexible family supports. Other edits are made to correct or clarify language, correct numbering, and formatting.
Section 355.507 subsection (a) is revised to specify that the rule establishes the FFS rate methodology for services delivered through STAR Kids and STAR Health managed care. Subsection (b) is added to describe rate methodologies for STAR Kids and STAR Health LTSS state plan services. New subsection (c) is added to specify reimbursement rate determination for MDCP services delivered through STAR Kids and STAR Health, update references to nursing facility (NF) reimbursement setting methodology rules and add rate determination for transition assistance services. New subsection (d) adds language clarifying that HHSC does not currently require providers contracted with managed care organizations to submit cost reports.
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 not create a new regulation;
(6) the proposed rules will not expand, limit, or repeal 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 do not impose any additional costs on small businesses, micro-businesses, or rural communities that are required to comply with the rules.
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
Victoria Grady, Director of Provider Finance, has determined that for each year of the first five years the rules are in effect, the public benefit will be appropriate FFS-equivalent reimbursement methodologies for services provided through STAR+PLUS, STAR Kids, and STAR Health managed care and alignment with billing matrices.
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 impose any requirements on regulated persons.
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 HHSC Provider Finance Department, Mail Code H-400, P.O. Box 149030, Austin, Texas 78714-9030, or by email to PFD-LTSS@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 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 24R068" in the subject line.
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 Government Code §531.033, which authorizes the Executive Commissioner of HHSC to adopt rules necessary to carry out HHSC's duties; Texas Human Resources Code §32.021 and Texas Government Code §531.021(a), which provide HHSC with the authority to administer the federal medical assistance (Medicaid) program in Texas; and Texas Government Code §531.021(b-1), which establishes HHSC as the agency responsible for adopting reasonable rules governing the determination of fees, charges, and rates for medical assistance payments under the Texas Human Resources Code Chapter 32.
The amendments affect Texas Government Code Chapter 531 and Texas Human Resources Code Chapter 32.
§355.503.Reimbursement Methodology for Long-Term
Services and Supports State Plan and Home and Community-Based Services
Waiver Program Services Delivered through the STAR+PLUS Managed Care
Program [the Community-Based Alternatives Waiver Program
and the Integrated Care Management-Home and Community Support Services
and Assisted Living/Residential Care Programs].
(a) General requirements. The Texas Health and Human Services Commission (HHSC) establishes the rate methodology for long-term services and supports (LTSS) state plan and Home and Community-Based Services (HCBS) waiver program services delivered through STAR+PLUS managed care.
(1) HHSC applies the general principles of cost determination as specified in §355.101 of this title (relating to Introduction).
(2) For HCBS waiver program services,
providers [Providers] are reimbursed for [waiver]
services provided to individuals who meet the criteria for alternatives
to nursing facility care. Additionally, providers are reimbursed a
one-time administrative expense fee for a pre-enrollment assessment
of potential waiver participants. The pre-enrollment assessment covers
care planning for the participant.
(3) [(b)] [Other sources
of cost information.] If HHSC has determined that there is not
sufficient reliable cost report data from which to determine reimbursements
and reimbursement ceilings for waiver services, reimbursements and
reimbursement ceilings will be developed by using data from surveys,
[;] cost report data from other similar programs,
consultation with other service providers or professionals experienced
in delivering contracted services,[;] and other sources.
(b) State plan services reimbursement determination. For LTSS state plan services delivered through STAR+PLUS, Community First Choice (CFC) personal assistance services (PAS) and habilitation services are calculated as specified in §355.9090 of this title (relating to Reimbursement Methodology for Community First Choice); non-CFC PAS is calculated as specified in §355.5902 of this title (relating to Reimbursement Methodology for Primary Home Care); day activity and health services (DAHS) are calculated as specified in §355.6907 of this title (relating to Reimbursement Methodology for Day Activity and Health Services); emergency response services (ERS) are calculated as specified in §355.510 of this subchapter (relating to Reimbursement Methodology for Emergency Response Services (ERS)); financial management services agency (FMSA) fees are calculated as specified in §355.114 of this title (relating to Consumer Directed Services Payment Option.
(c) STAR+PLUS HCBS Waiver reimbursement
determination. Recommended reimbursements are determined in the following
manner.[:]
(1) Unit of service reimbursement. Reimbursement for non-CFC PAS [personal assistance services] and in-home
respite care services, and cost per unit of service for nursing services
provided by a registered nurse (RN), nursing services provided by
a licensed vocational nurse (LVN), physical therapy, occupational
therapy, speech/language therapy, supported employment, employment
assistance, and day activity and health services (DAHS) is [will be] determined [on a fee-for-service basis]
in the following manner.[:]
(A) Total allowable costs for each provider are [will be] determined by analyzing the allowable historical costs
reported on the cost report.
[(B) Total allowable costs are reduced
by the amount of the pre-enrollment expense fee and requisition fee
revenues accrued for the reporting period.]
(B) [(C)] Each provider's total
reported allowable costs, excluding depreciation and mortgage interest,
are projected from the historical cost-reporting period to the prospective
reimbursement period as described in §355.108 of this title (relating
to Determination of Inflation Indices). The prospective reimbursement
period is the period of time that the reimbursement is expected to
be in effect.
(C) [(D)] Payroll taxes and employee
benefits are allocated to each salary line item on the cost report
on a pro rata basis based on the portion of that salary line item
to the amount of total salary expense for the appropriate group of
staff. Employee benefits will be charged to a specific salary line
item if the benefits are reported separately. The allocated payroll
taxes are Federal Insurance Contributions Act (FICA) or Social Security,
Medicare Contributions, Workers' Compensation Insurance (WCI), the
Federal Unemployment Tax Act (FUTA), and the Texas Unemployment Compensation
Act (TUCA).
(D) [(E)] Allowable administrative
and facility costs are allocated or spread to each waiver service
cost component on a pro rata basis based on the portion of each waiver
service's units of service to the amount of total waiver units of service.
(E) [(F)] For in-home and
out-of-home nursing services provided by an RN, in-home
and out-of-home nursing services provided by an LVN, in-home
and out-of-home physical therapy, in-home and out-of-home occupational
therapy, speech/language therapy, supported employment, employment
assistance, and in-home respite care services, an allowable cost per
unit of service is calculated for each contracted provider cost report
for each service. The allowable cost per unit of service[,]
for each contracted provider cost report is multiplied by 1.044. This
adjusted allowable cost per unit of service may be combined into an
array with the allowable cost per unit of service of similar services
provided by other programs in determining rates for these services
in accordance with §355.502 of this subchapter [title
] (relating to Reimbursement Methodology for Common Services
in Home and Community-Based Services Waivers).
(F) [(G)] For non-CFC PAS [personal assistance services], two cost areas are
created.[:]
(i) The attendant cost area includes salaries, wages, benefits, and mileage reimbursement calculated as specified in §355.112 of this title (relating to Attendant Compensation Rate Enhancement).
(ii) The administration and facility [Another
attendant] cost area [is created which] includes field
supervisors' salaries and wages, benefits, and mileage reimbursement
expenses; building, building equipment, and operation and maintenance
costs; administration costs; and other service costs. [the
other personal attendant services costs not included in clause (i)
of this subparagraph as determined in subparagraphs (A) - (E) of this
paragraph.] An allowable cost per unit of service is determined
for each contracted provider cost report for the administration
and facility [other attendant] cost area. The allowable
cost per unit of service for each contracted provider cost report
are arrayed. The units of service for each contracted provider cost
report in the array are summed until the median unit of service is
reached. The corresponding expense to the median unit of service is
determined and [is] multiplied by 1.044.
(iii) The attendant cost area and the administration
and facility [other attendant] cost area are summed
to determine the PAS [personal assistance services]
cost per unit of service.
(G) CFC PAS and habilitation services are calculated as specified in §355.9090 of this title (relating to Reimbursement Methodology for Community First Choice).
(2) Per day reimbursement.
(A) The reimbursement for Adult Foster Care (AFC) and
out-of-home respite care in an AFC home is [will be]
determined as a per day reimbursement using a method based on modeled
projected expenses, which are developed using data from surveys, cost
report data from other similar programs, consultation with other service
providers or professionals experienced in delivering contracted services,
and other sources. The room and board payments for AFC Services are
not covered in these reimbursements and will be paid to providers
from the client's Supplemental Security Income (SSI), less
a personal needs allowance.
(B) The reimbursement for assisted living (AL)
services is [Assisted Living/Residential Care (AL/RC) will
be] determined as a per day reimbursement in accordance with §355.509(a)
- (c)(2)(E)(iii) of this subchapter [title]
(relating to Reimbursement Methodology for Residential Care).
(i) The per day reimbursement for attendant care for
each of the [six] levels of care is [will
be] determined based on [upon] client
need for attendant care.
(ii) A total reimbursement amount is [will
be] calculated and the proposed reimbursement is equal to the
total reimbursement less the client's room and board payments.
(iii) The room and board payment is paid to the provider
by the client from the client's SSI [Supplemental
Security Income (SSI)], less a personal needs allowance.
(iv) The reimbursement for out-of-home respite in an AL [AL/RC] facility is determined using the same
methodology as the reimbursement for AL [AL/RC]
except that the out-of-home respite rates:
(I) are set at the rate for providers who choose not to participate in the attendant compensation rate enhancement; and
(II) include room and board costs equal to the client's SSI, less a personal needs allowance.
[(v) When the SSI is increased or
decreased by the Federal Social Security Administration, the reimbursement
for AL/RC and out-of-home respite provided in an AL/RC facility will
be adjusted in amounts equal to the increase or decrease in SSI received
by clients.]
(C) The reimbursement for out-of-home respite care
provided in a Nursing Facility is [will be]
based on the amount determined for the Nursing Facility case mix class
into which the [CBA] participant is classified.
(D) The reimbursement for Personal Care 3 is [will be] composed of two rate components, one for the direct
care cost center and one for the non-direct care cost center.
(i) Direct care costs. The rate component for the direct
care cost center is [will be] determined by
modeling the cost of the minimum required staffing for the Personal
Care 3 setting, as specified by HHSC [the Department
of Aging and Disability Services], and using staff costs and
other statistics from the most recently audited cost reports from
providers delivering similar care.
(ii) Non-direct care costs. The rate component for
the non-direct care cost center is [will be]
equal to the non-attendant portion of the non-apartment assisted living
rate per day for non-participants in the Attendant Compensation Rate
Enhancement. Providers receiving the Personal Care 3 rate are not
eligible to participate in the Attendant Compensation Rate Enhancement
and receive direct care add-ons [add-on's] to
the Personal Care 3 rates.
(3) ERS [Emergency Response Services].
The reimbursement for ERS is [Emergency Response Services
will be] determined as a monthly reimbursement ceiling,
based on the ceiling amount determined in accordance with §355.510
of this subchapter [title] (relating to Reimbursement
Methodology for Emergency Response Services (ERS)).
(4) Requisition fees. Requisition fees are reimbursements
paid to [the CBA] home and community support services contracted
providers for their efforts in acquiring adaptive aids, medical supplies,
dental services, and minor home modifications for [CBA]
participants. Reimbursement for requisition fees for adaptive aids,
medical supplies, dental services, and minor home modifications will
vary based on the actual cost of the adaptive aids, medical supplies,
dental services, and minor home modifications. Reimbursements are
determined using a method based on modeled projected expenses, which
are developed by using data from surveys,[;]
cost report data from similar programs,[;] consultation
with other service providers and/or professionals experienced in delivering
contracted services,[;] and/or other sources.
(5) Pre-enrollment expense fee. Reimbursement for pre-enrollment
assessment is determined using a method based on modeled projected
expenses that are developed by using data from surveys,[;
] cost report data from other similar programs,[;]
consultation with other service providers and/or professionals experienced
in delivering contracted services,[;] and other sources.
(6) Home-Delivered Meals. The reimbursement for Home-Delivered
Meals is [will be] determined on a per meal
basis, based on the ceiling amount determined in accordance with §355.511
of this subchapter [title] (relating to Reimbursement
Methodology for Home-Delivered Meals).
(7) Exceptions to the reimbursement determination methodology. HHSC may adjust reimbursement if new legislation, regulations, or economic factors affect costs, according to §355.109 of this title (relating to Adjusting Reimbursement When New Legislation, Regulations, or Economic Factors Affect Costs).
(d) Authority to determine reimbursement. The authority to determine reimbursement is specified in §355.101 of this title.
(e) Reporting of cost.
(1) Cost reporting guidelines. If HHSC requires a cost
report for any LTSS program or service delivered through STAR+PLUS [waiver service in this program], providers must follow the cost-reporting
guidelines as specified in §355.105 of this title (relating to
General Reporting and Documentation Requirements, Methods, and Procedures).
(2) Excused from submission of cost reports. If required by HHSC, a contracted provider must submit a cost report unless the provider meets one or more of the conditions in §355.105(b)(4)(D) of this title.
[(3) Number of cost reports to be submitted.]
[(A) Contracted providers participating in the attendant compensation rate enhancement.]
[(i) At the same level of enhancement. If all the contracts under the legal entity participate in the enhancement at the same level of enhancement, the contracted provider must submit one cost report for the legal entity.]
[(ii) At different levels of enhancement. If all the contracts under the legal entity participate in the enhancement but they participate at more than one enhancement level, the contracted provider must submit one cost report for each level of enhancement.]
[(B) Contracted providers not participating in the attendant compensation rate enhancement. If all the contracts under the legal entity do not participate in the enhancement, the contracted provider must submit one cost report for the legal entity.]
[(C) Contractors participating and not participating in attendant compensation rate enhancement.]
[(i) At the same level of enhancement. If some of the contracts under the legal entity do not participate in the enhancement and the rest of the contracts under the legal entity participate at the same level of enhancement, the contracted provider must submit:]
[(I) one cost report for the contracts that do not participate; and]
[(II) one cost report for the contracts that do participate.]
[(ii) At different levels of enhancement. If some of the contracts under the legal entity do not participate in the enhancement and the rest of the contracts under the legal entity participate in the enhancement but they participate at more than one enhancement level, the contracted provider must submit:]
[(I) one cost report for the contracts that do not participate; and]
[(II) one cost report for each level of enhancement.]
(3) [(4)] Reporting and verification
of allowable cost.
(A) Providers are responsible for reporting only allowable
costs on the cost report, except where cost report instructions indicate
that other costs are to be reported in specific lines or sections.
Only allowable cost information is used to determine recommended reimbursements.
HHSC excludes from reimbursement determination any unallowable expenses
included in the cost report and makes the appropriate adjustments
to expenses and other information reported by providers; the purpose
is to ensure that the database reflects costs and other information that [which] are necessary for the provision of services[,] and are consistent with federal and state regulations.
(B) Individual cost reports may not be included in the database used for reimbursement determination if:
(i) there is reasonable doubt as to the accuracy or
allowability of a significant part of the information reported,[;] or
(ii) an auditor determines that reported costs are not verifiable.
(4) [(5)] Allowable and unallowable
costs. Providers must follow the guidelines in determining whether
a cost is allowable or unallowable as specified in §355.102 and §355.103
of this title (relating to General Principles of Allowable and Unallowable
Costs, and Specifications for Allowable and Unallowable Costs), in
addition to the following.
(A) Client room and board expenses are not allowable, except for those related to respite care.
(B) The actual cost of adaptive aids, medical supplies, dental services, and home modifications are not allowable for cost reporting purposes. Allowable labor costs associated with acquiring adaptive aids, medical supplies, dental services, and home modifications should be reported in the cost report. Any item purchased for participants in this program and reimbursed through a voucher payment system is unallowable for cost reporting purposes. Refer to §355.103(b)(20)(K) of this title.
(f) Reporting revenue. Revenues must be reported on the cost report in accordance with §355.104 of this title (relating to Revenues).
(g) Reviews and field audits of cost reports. Desk reviews or field audits are performed on cost reports for all contracted providers. The frequency and nature of the field audits are determined by HHSC to ensure the fiscal integrity of the program. Desk reviews and field audits will be conducted in accordance with §355.106 of this title (relating to Basic Objectives and Criteria for Audit and Desk Review of Cost Reports), and providers will be notified of the results of a desk review or a field audit in accordance with §355.107 of this title (relating to Notification of Exclusions and Adjustments). Providers may request an informal review and, if necessary, an administrative hearing to dispute an action taken under §355.110 of this title (relating to Informal Reviews and Formal Appeals).
§355.507.Reimbursement Methodology for Long-Term
Services and Supports State Plan and [the] Medically
Dependent Children Waiver Program Services Delivered
through the STAR Kids and STAR Health Managed Care Programs.
(a) General Requirements. The Texas Health
and Human Services Commission (HHSC) determines payment rates for
qualified contracted providers for the provision of long-term
services and supports (LTSS) state plan and [services in
the] Medically Dependent Children Waiver Program
(MDCP) services delivered through the STAR Kids and STAR Heath
managed care programs. HHSC applies the general principles of
cost determination as specified in §355.101 of this title (relating
to Introduction).
(b) State plan services reimbursement determination. For LTSS state plan services delivered through STAR Kids and STAR Health, adult day care services are calculated as specified in §355.6907 of this title (relating to Reimbursement Methodology for Day Activity and Health Services); personal care services, nurse delegation and supervision services, and private duty nursing are calculated as specified in §355.8441 of this title (relating to Reimbursement Methodologies for Early and Periodic Screening, Diagnosis, and Treatment (EPSDT) Services); Community First Choice (CFC) attendant and habilitation and personal assistance services (PAS) are calculated as specified in §355.9090 of this title (relating to Reimbursement Methodology for Community First Choice); emergency response services are calculated as specified in §355.510 of this subchapter (relating to Reimbursement Methodology for Emergency Response Services (ERS)); prescribed pediatric extended care services are calculated as specified in §355.9080 of this title (relating to Reimbursement Methodology for Prescribed Pediatric Extended Care Centers); financial management services agency (FMSA) fees are calculated as specified in §355.114 of this title (relating to Consumer Directed Services Payment Option).
(c) MDCP reimbursement determination. Recommended payment rates are developed based on payment rates determined for other programs that provide similar services. If payment rates are not available from other programs that provide similar services, payment rates are determined using a pro forma analysis in accordance with §355.105(h) of this chapter (relating to General Reporting and Documentation Requirements, Methods, and Procedures). Recommended payment rates for MDCP services are determined as follows.
(1) [(b)] The rates for in-home
respite and flexible family supports nursing services provided
by a registered nurse (RN) or licensed vocational nurse (LVN) are [will be] determined in accordance with §355.502 of this subchapter
[title] (relating [Relating]
to Reimbursement Methodology for Common Services in Home and Community-Based
Services Waivers).
(2) [(c)] The rates for in-home
respite and flexible family supports provided by an attendant [personal assistance services (PAS)] without delegation of the
service by an RN are [will be] based on [upon] the STAR+PLUS Home and Community-Based Services (HCBS)
waiver rate methodology [Community-Based Alternatives (CBA)
approved rates] for PAS in accordance with §355.503 of
this subchapter [title] (relating to Reimbursement
Methodology for Long-Term Services and Supports State Plan and
Home and Community-Based Services Waiver Program Services Delivered
through the STAR+PLUS Managed Care Program) [the Community-Based
Alternatives Waiver Program and the Integrated Care Management-Home
and Community Support Services and Assisted Living/Residential Care
Programs)] and §355.112(m) [§355.112(l)]
of this title (relating to Attendant Compensation Rate Enhancement).
The rates for in-home respite and flexible family supports provided
by an attendant [PAS] with delegation of the service
by an RN are [will be] based on [upon
] the STAR+PLUS HCBS waiver rate methodology [Community-Based
Alternatives (CBA) approved rates] for PAS in accordance with §355.503
of this subchapter [title] and the add-on payment
for the highest level of attendant compensation rate enhancement in
accordance with §355.112(o) [§355.112(n)]
of this title.
(3) [(d)] The rate ceiling for respite care. Camp setting [camp] services is [will be] equivalent to the Community Living Assistance and Support
Services direct service agency (CLASS DSA) out-of-home respite rate.
Actual payments for this service are [will be]
the lesser of the rate ceiling or the actual cost of the camp.
(4) [(e)] Facility-based respite
care rates are determined on a 24-hour basis. The rates for facility-based
respite care are calculated at 77 percent of the daily nursing facility rate methodology in accordance with §355.307 of this title (relating
to Reimbursement Setting Methodology before September 1, 2025). After
September 1, 2025, the rates for facility-based respite care are calculated
at 77 percent of the daily nursing facility rate methodology in accordance
with §355.318 of this title (relating to Reimbursement Setting
Methodology for Nursing Facilities on or after September 1, 2025). [base rates by level of care]. The base rates used in this calculation
do not include nursing facility rate add-ons.
(5) [(f)] The rates for supported
employment and employment assistance are [will be]
based on [upon] the rate methodology [CBA approved rates] for supported employment and employment
assistance in accordance with §355.503 of this subchapter
[title].
(6) Transition assistance services rates are determined in accordance with §355.502 of this subchapter.
(d) [(g)] Cost reports.
If HHSC deems it appropriate to require providers contracted with
managed care organizations to deliver LTSS services in STAR Kids and
STAR Health to submit a cost report, the [The] following
sections of this title will apply [to cost reports or surveys
required to obtain the necessary information to determine new payment
rates]: §355.102 of this title (relating to General Principles
of Allowable and Unallowable Costs), §355.103 of this title (relating
to Specifications for Allowable and Unallowable Costs), §355.104
of this title (relating to Revenues), §355.105 of this title
(relating to General Reporting and Documentation Requirements, Methods,
and Procedures), §355.106 of this title (relating to Basic Objectives
and Criteria for Audit and Desk Review of Cost Reports), §355.107
of this title (relating to Notification of Exclusions and Adjustments), §355.108
of this title (relating to Determination of Inflation Indices), §355.109
of this title (relating to Adjusting Reimbursement When New Legislation,
Regulations, or Economic Factors Affect Costs), §355.110 of this
title (relating to Informal Reviews and Formal Appeals), and §355.111
of this title (relating to Administrative Contract Violations).
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 October 21, 2024.
TRD-202404916
Karen Ray
Chief Counsel
Texas Health and Human Services Commission
Earliest possible date of adoption: December 1, 2024
For further information, please call: (512) 867-7817
The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes the repeal of Chapter 381, comprising of Subchapter A, §381.1, concerning Purpose; and §381.2, concerning Definitions; Subchapter B, §§381.101, concerning Duties; 381.102, concerning Membership and Eligibility; and 381.103, concerning Officers and Meetings; Subchapter C, §§381.201, concerning Eligible Projects; 381.202, concerning Eligible Applicants; 381.203, Application and Selection Process; 381.204, concerning Grant Period; 381.205, concerning Continuation Funding Policy; 381.206, concerning Grant Amounts; 381.207, concerning Notification of Award; 381.208, concerning Request for Reconsideration; 381.209, concerning Contract; 381.210, concerning Progress Reports; Subchapter D, §§381.301, concerning Purpose; 381.303, concerning Applicability of Standards to Guardianship Programs; 381.305, concerning Ineligibility of Non-compliant Programs; 381.315, concerning Form of Entity; 381.317, concerning Fiscal Responsibility; 381.319, concerning Budget; 381.321, concerning Insurance; 381.323, concerning Fees for Services; 381.325, concerning Guardianship Bonds; 381.331, concerning Guardianship Accountability; 381.333, concerning Service Provider Employee Screening; 381.335, concerning Confidentiality; 381.337, concerning Supervision of Employees and Volunteers; 381.339, concerning Community Involvement; 381.345, concerning Less Restrictive Alternatives to Guardianship; 381.347, concerning Guardianship Program Service Levels, 381.349, concerning Role of Volunteers; 381.351, concerning Staffing Requirements; 381.353, concerning Training Requirements; 381.355, concerning Conflicts of Interest; 381.357, concerning Referral, Intake, and Assessments; 381.359, concerning Prioritization of Potential Clients on Waiting Lists; 381.361, concerning Responsibility for Burial or Cremation; 381.363, concerning Evaluation and Monitoring of Caseloads; 381.365, concerning Personal Care Plans for Guardianship Clients; and 381.367, concerning Financial Care Plans for Guardianship Clients.
BACKGROUND AND PURPOSE
The purpose of the proposal is to repeal rules concerning the Guardianship Advisory Board because the authority for the HHSC Guardianship Advisory Board and related guardianship program grants and standards were transferred from HHSC to the Office of Court Administration by Senate Bill (S.B.) 966, 83rd Legislature, Regular Session, 2013. The governing statute for the HHSC Guardianship Advisory Board and related grants and standards, Texas Government Code Chapter 531, Subchapter D, was subsequently repealed by S.B. 200, 84th Legislature, Regular Session, in 2015.
SECTION-BY-SECTION SUMMARY
The proposed repeal of Chapter 381, concerning Guardianship Services, deletes the rules as they are no longer necessary. The statutory authority for the board was transferred to the Office of Court Administration by S.B. 966, 83rd Legislature, Regular Session, 2013.
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 regulation;
(6) the proposed repeals will repeal existing regulations;
(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 rules will be repealed.
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 these repeals do not impose a cost on regulated persons and the repeal is necessary to implement legislation that does not specifically state that §2001.0045 applies to the rules.
PUBLIC BENEFIT AND COSTS
Haley Turner, Deputy Executive Commissioner of Community Services, has determined that for each year of the first five years the repeals are in effect, the public benefit will be eliminating references to the Guardianship Advisory Board in the Texas Administrative Code because HHSC has not overseen the Guardianship Advisory Board since 2013.
Trey Wood has also determined 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 proposed repeals because the rules will be removed.
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 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 24R022" in the subject line.
SUBCHAPTER A. PURPOSE AND DEFINITIONS
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, Texas Government Code Chapter 2110, which establishes how a state agency may create an advisory committee, and Texas Government Code §523.0201, which provides that the Executive Commissioner of HHSC shall establish and maintain advisory committees.
The repeals affect Texas Government Code §531.0055, Chapter 2110, and Texas Government Code §523.0201.
§381.1.Purpose.
§381.2.Definitions.
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 October 21, 2024.
TRD-202404921
Karen Ray
Chief Counsel
Texas Health and Human Services Commission
Earliest possible date of adoption: December 1, 2024
For further information, please call: (512) 840-8536
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, Texas Government Code Chapter 2110, which establishes how a state agency may create an advisory committee, and Texas Government Code §523.0201, which provides that the Executive Commissioner of HHSC shall establish and maintain advisory committees.
The repeals affect Texas Government Code §531.0055, Chapter 2110, and Texas Government Code §523.0201.
§381.101.Duties.
§381.102.Membership and Eligibility.
§381.103.Officers and Meetings.
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 October 21, 2024.
TRD-202404922
Karen Ray
Chief Counsel
Texas Health and Human Services Commission
Earliest possible date of adoption: December 1, 2024
For further information, please call: (512) 840-8536
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, Texas Government Code Chapter 2110, which establishes how a state agency may create an advisory committee, and Texas Government Code §523.0201, which provides that the Executive Commissioner of HHSC shall establish and maintain advisory committees.
The repeals affect Texas Government Code §531.0055, Chapter 2110, and Texas Government Code §523.0201.
§381.201.Eligible Projects.
§381.202.Eligible Applicants.
§381.203.Application and Selection Process.
§381.204.Grant Period.
§381.205.Continuation Funding Policy.
§381.206.Grant Amounts.
§381.207.Notification of Award.
§381.208.Request for Reconsideration.
§381.209.Contract.
§381.210.Progress Reports.
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 October 21, 2024.
TRD-202404923
Karen Ray
Chief Counsel
Texas Health and Human Services Commission
Earliest possible date of adoption: December 1, 2024
For further information, please call: (512) 840-8536
DIVISION 1. GENERAL
1 TAC §§381.301, 381.303, 381.305
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, Texas Government Code Chapter 2110, which establishes how a state agency may create an advisory committee, and Texas Government Code §523.0201, which provides that the Executive Commissioner of HHSC shall establish and maintain advisory committees.
The repeals affect Texas Government Code §531.0055, Chapter 2110, and Texas Government Code §523.0201.
§381.301.Purpose.
§381.303.Applicability of Standards to Guardianship Programs.
§381.305.Ineligibility of Non-compliant Programs.
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 October 21, 2024.
TRD-202404925
Karen Ray
Chief Counsel
Texas Health and Human Services Commission
Earliest possible date of adoption: December 1, 2024
For further information, please call: (512) 840-8536
1 TAC §§381.315, 381.317, 381.319, 381.321, 381.323, 381.325
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, Texas Government Code Chapter 2110, which establishes how a state agency may create an advisory committee, and Texas Government Code §523.0201, which provides that the Executive Commissioner of HHSC shall establish and maintain advisory committees.
The repeals affect Texas Government Code §531.0055, Chapter 2110, and Texas Government Code §523.0201.
§381.315.Form of Entity.
§381.317.Fiscal Responsibility.
§381.319.Budget.
§381.321.Insurance.
§381.323.Fees for Services.
§381.325.Guardianship Bonds.
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 October 21, 2024.
TRD-202404926
Karen Ray
Chief Counsel
Texas Health and Human Services Commission
Earliest possible date of adoption: December 1, 2024
For further information, please call: (512) 840-8536
1 TAC §§381.331, 381.333, 381.335, 381.337, 381.339
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, Texas Government Code Chapter 2110, which establishes how a state agency may create an advisory committee, and Texas Government Code §523.0201, which provides that the Executive Commissioner of HHSC shall establish and maintain advisory committees.
The repeals affect Texas Government Code §531.0055, Chapter 2110, and Texas Government Code §523.0201.
§381.331.Guardianship Accountability.
§381.333.Service Provider Employee Screening.
§381.335.Confidentiality.
§381.337.Supervision of Employees and Volunteers.
§381.339.Community Involvement.
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 October 21, 2024.
TRD-202404927
Karen Ray
Chief Counsel
Texas Health and Human Services Commission
Earliest possible date of adoption: December 1, 2024
For further information, please call: (512) 840-8536
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, Texas Government Code Chapter 2110, which establishes how a state agency may create an advisory committee, and Texas Government Code §523.0201, which provides that the Executive Commissioner of HHSC shall establish and maintain advisory committees.
The repeals affect Texas Government Code §531.0055, Chapter 2110, and Texas Government Code §523.0201.
§381.345.Less Restrictive Alternatives to Guardianship.
§381.347.Guardianship Program Service Levels.
§381.349.Role of Volunteers.
§381.351.Staffing Requirements.
§381.353.Training Requirements.
§381.355.Conflicts of Interest.
§381.357.Referral, Intake, and Assessments.
§381.359.Prioritization of Potential Clients on Waiting Lists.
§381.361.Responsibility for Burial or Cremation.
§381.363.Evaluation and Monitoring of Caseloads.
§381.365.Personal Care Plans for Guardianship Clients.
§381.367.Financial Care Plans for Guardianship Clients.
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 October 21, 2024.
TRD-202404928
Karen Ray
Chief Counsel
Texas Health and Human Services Commission
Earliest possible date of adoption: December 1, 2024
For further information, please call: (512) 840-8536