Proposed Rules Title 26

TITLE 26. HEALTH AND HUMAN SERVICES

PART 1. HEALTH AND HUMAN SERVICES COMMISSION

CHAPTER 259. COMMUNITY LIVING ASSISTANCE AND SUPPORT SERVICES (CLASS) PROGRAM AND COMMUNITY FIRST CHOICE (CFC) SERVICES

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes an amendment to §259.61, concerning Process for Enrollment of an Individual; §259.79, concerning Renewal and Revision of an IPC; §259.309, concerning Training of CMA Staff Persons and Volunteers; §259.317 concerning CMA: Reporting Allegations of Abuse, Neglect, or Exploitation of an Individual; §259.357, concerning Training of DSA Staff Persons, Service Providers, and Volunteers; and §260.369, concerning DSA: Reporting Allegations of Abuse, Neglect, or Exploitation of an Individual.

BACKGROUND AND PURPOSE

The purpose of this proposal is to implement Texas Human Resources Code §48.051(b-1), added by House Bill (H.B.) 4696, 88th Legislature, Regular Session, 2023. Section 48.051 requires a person, including an officer, employee, agent, contractor, or subcontractor of a home and community support services agency (HCSSA) licensed under Texas Health and Safety Code Chapter 142, who has cause to believe that an individual receiving services from the HCSSA, is being or has been subjected to abuse, neglect, or exploitation, to immediately report it to HHSC.

A direct service agency (DSA) in the CLASS Program must be licensed as a HCSSA and a CLASS case management agency (CMA) may be licensed as a HCSSA. To comply with Section 48.501, these proposed amendments change the current CLASS Program abuse, neglect, or exploitation (ANE) reporting requirement from the Texas Department of Family and Protective Services (DFPS) to HHSC. Transferring the function relating to the intake of reports of ANE from DFPS to HHSC creates a more streamlined process because HHSC is currently responsible for investigating these reports in the CLASS Program.

Therefore, the proposed amendments to these rules for CLASS CMAs and CLASS DSAs remove all references to DFPS, the DFPS Abuse Hotline toll-free telephone number, and the DFPS Abuse Hotline website and replaces them with references to HHSC, the HHSC toll-free telephone number, and the HHSC online Texas Unified Licensure Information Portal. The proposed amendment to §259.61 and §259.79 updates a rule reference.

FISCAL NOTE

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

GOVERNMENT GROWTH IMPACT STATEMENT

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

(1) the proposed 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 because the amendments are merely codifying current procedures and there are no requirements to alter business processes.

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 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

Emily Zalkovsky, State Medicaid Director, has determined that for each year of the first five years the rules are in effect, the public benefit will be improved oversight by creating a single point of contact for reports and investigations of ANE.

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 amendments are merely codifying current procedures.

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 mcsrulespubliccomments@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 24R072" in the subject line.

SUBCHAPTER B. ELIGIBILITY, ENROLLMENT, AND REVIEW

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

26 TAC §259.61

STATUTORY AUTHORITY

The amendment is authorized by Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies; Texas Government Code §531.033, which provides the Executive Commissioner of HHSC with broad rulemaking authority; and Texas Human Resources Code §32.021, which provides HHSC with the authority to administer the federal medical assistance program in Texas and to adopt rules and standards for program administration.

The amendment implements subsection (b-1) to §48.051 of the Texas Human Resources Code, as added by H.B. 4696, 88th Legislature, Regular Session, 2023.

§259.61.Process for Enrollment of an Individual.

(a) After HHSC notifies a CMA, as described in §259.55(c) of this division (relating to Written Offer of CLASS Program Services), that an individual selected the CMA, the CMA must assign a case manager to perform the following functions as soon as possible, but no later than 14 calendar days after HHSC's notification:

(1) verify that the individual resides in the catchment area for which the individual's selected CMA and DSA have a contract;

(2) conduct an initial in-person visit in the individual's residence with the individual and LAR or actively involved person at a time convenient to the individual and LAR to:

(A) provide an oral and written explanation of the following to the individual and LAR or actively involved person:

(i) CLASS Program services, including TAS if the individual is receiving institutional services;

(ii) CFC services;

(iii) the mandatory participation requirements of an individual described in §259.103 of this chapter (relating to Mandatory Participation Requirements of an Individual);

(iv) the CDS option described in §259.71 of this division (relating to CDS Option);

(v) the right to request a fair hearing in accordance with §259.101 of this chapter (relating to Individual's Right to a Fair Hearing);

(vi) that the individual, LAR, or actively involved person may report an allegation of abuse, neglect, or exploitation to HHSC [~~DFPS~~] by calling the toll-free telephone number at 1-800-458-9858 [~~1-800-252-5400~~];

(vii) the process by which the individual, LAR, or actively involved person may file a complaint regarding case management as required by §52.117 of this title [~~40 TAC §49.309~~ ] (relating to Complaint Process);

(viii) that the HHSC Office of the Ombudsman toll-free telephone number at 1-877-787-8999 may be used to file a complaint regarding the CMA;

(ix) voter registration, if the individual is 18 years of age or older;

(x) that, while the individual is staying at a location outside the catchment area in which the individual resides but within the state of Texas for a period of no more than 60 consecutive days, the individual and LAR or actively involved person may request that the DSA provide:

(I) transportation as a habilitation activity, as described in §259.5(56)(B)(i)(IX) of this subchapter (relating to Definitions);

(II) out-of-home respite in a camp described in §259.361(b)(2)(D) of this chapter (relating to Respite and Dental Treatment);

(III) adaptive aids;

(IV) nursing; and

(V) CFC PAS/HAB;

(xi) the use of electronic visit verification, as required by 1 TAC Chapter 354, Subchapter O; and

(xii) how to contact the individual's case manager; and

(B) use the HHSC Understanding Program Eligibility - CLASS/DBMD form to provide an oral and written explanation to the individual or LAR, and obtain the individual's or LAR's signature and date on the form, to acknowledge understanding of:

(i) the eligibility requirements for:

(I) CLASS Program services, as described in §259.51(a) of this subchapter (relating to Eligibility Criteria for CLASS Program Services and CFC Services);

(II) CFC services for individuals who do not receive MAO Medicaid, as described in §259.51(b) of this subchapter; and

(III) CFC services for individuals who receive MAO Medicaid, as described in §259.51(c) of this subchapter;

(ii) the reasons CLASS Program services and CFC services may be suspended, as described in §259.157 of this chapter (relating to Suspension of CLASS Program Services or CFC Services); and

(iii) that CLASS Program services and CFC services may be terminated as described in §§259.161, 259.163, 259.165, and 259.167 of this chapter (relating to Termination of CLASS Program Services and CFC Services With Advance Notice for Reasons Other Than Non-compliance with Mandatory Participation Requirements; Termination of CLASS Program Services and CFC Services With Advance Notice Because of Non-compliance With Mandatory Participation Requirements; Termination of CLASS Program Services and CFC Services Without Advance Notice for Reasons Other Than Behavior Causing Immediate Jeopardy; and Termination of CLASS Program Services and CFC Services Without Advance Notice Because of Behavior Causing Immediate Jeopardy); and

(C) educate the individual, LAR, and actively involved person about protecting the individual from abuse, neglect, and exploitation; and

(3) give the individual or LAR the HHSC Waiver Program Verification of Freedom of Choice form to document the individual's or LAR's choice regarding the CLASS Program or the ICF/IID Program.

(b) A CMA must:

(1) as soon as possible, but no later than two business days after the case manager's initial in-person visit required by subsection (a)(2) of this section:

(A) collect the information necessary for the CMA and DSA to process the individual's request for enrollment into the CLASS Program in accordance with the Community Living Assistance and Support Services Provider Manual; and

(B) provide the individual's selected DSA with the information collected in accordance with subparagraph (A) of this paragraph;

(2) assist the individual or LAR in completing and submitting an application for Medicaid financial eligibility, as required by §259.103(1) of this chapter; and

(3) ensure that the case manager documents in the individual's record the progress toward completing a Medicaid application and enrolling into the CLASS Program.

(c) If an individual or LAR does not submit a Medicaid application to HHSC within 30 calendar days after the case manager's initial in-person visit, as required by §259.103(1) of this chapter, but is making good faith efforts to complete the application, the CMA:

(1) may extend, in 30-calendar day increments, the time frame in which the application must be submitted to HHSC, except as provided in paragraph (2) of this subsection;

(2) must not grant an extension that results in a time period of more than 365 calendar days from the date of the case manager's initial in-person visit; and

(3) must ensure that the case manager documents each extension in the individual's record.

(d) If an individual or LAR does not submit a Medicaid application to HHSC within 30 calendar days after the case manager's initial in-person visit, as required by §259.103(1) of this chapter, and is not making good faith efforts to complete the application, a CMA must request, in writing, that HHSC withdraw the offer of enrollment made to the individual in accordance with §259.55(d)(2) of this division.

(e) If a DSA serving the catchment area in which an individual resides is not willing to provide CLASS Program services or CFC services to the individual because the DSA has determined that it cannot ensure the individual's health and safety, the CMA must provide to HHSC, in writing, the specific reasons the DSA has determined that it cannot ensure the individual's health and safety.

(f) During the initial in-person visit described in subsection (a)(1) of the section, the case manager must determine whether an individual meets the following criteria:

(1) the individual is being discharged from a nursing facility or an ICF/IID;

(2) the individual has not previously received TAS;

(3) the individual's proposed enrollment IPC will not include SFS; and

(4) the individual anticipates needing TAS.

(g) If a case manager determines that an individual meets the criteria described in subsection (f) of this section, the case manager must:

(1) provide the individual or LAR with a list of TAS providers in the catchment area in which the individual will reside;

(2) complete, with the individual or LAR, the HHSC Transition Assistance Services (TAS) Assessment and Authorization form found on the HHSC website in accordance with the form's instructions, which includes:

(A) identifying the items and services described in §272.5(e) of this title (relating to Service Description) that the individual needs;

(B) estimating the monetary amount for the items and services identified on the form, which must be within the service limit described in §259.73(a)(4) of this division (relating to Service Limits); and

(3) submit the completed form to HHSC for authorization;

(4) if HHSC authorizes the form, send the form to the TAS provider chosen by the individual or LAR; and

(5) include TAS and the monetary amount authorized by HHSC on the individual's proposed enrollment IPC.

(h) A DSA must ensure that the following functions are performed during an in-person visit in the individual's residence at a time convenient to the individual and LAR as soon as possible, but no later than 14 calendar days after the CMA provides information to the DSA as required by subsection (b)(1)(B) of this section:

(1) a DSA staff person must:

(A) inform the individual and LAR or actively involved person, orally and in writing:

(i) that the individual, LAR, or actively involved person may report an allegation of abuse, neglect, or exploitation to HHSC [~~DFPS~~] by calling the toll-free telephone number at 1-800-458-9858 [~~1-800-252-5400~~];

(ii) the process by which the individual, LAR, or actively involved person may file a complaint regarding CLASS Program services or CFC services provided by the DSA as required by §52.117 of this title [~~40 TAC §49.309~~]; and

(iii) that the HHSC [~~Complaint and Incident Intake~~] toll-free telephone number at 1-800-458-9858 may be used to file a complaint regarding the DSA; and

(B) educate the individual and LAR or actively involved person about protecting the individual from abuse, neglect, and exploitation;

(2) an appropriate professional must complete an adaptive behavior screening assessment in accordance with the assessment instructions; and

(3) an RN, in accordance with the Community Living Assistance and Support Services Provider Manual, must complete:

(A) a nursing assessment, using the HHSC CLASS/DBMD Nursing Assessment form;

(B) the HHSC Related Conditions Eligibility Screening Instrument form; and

(i) A DSA must:

(1) ensure that the primary diagnosis of the individual documented on the ID/RC Assessment is approved by a physician;

(2) submit the following documentation to HHSC for HHSC's determination of whether the individual meets the LOC VIII criteria required by §259.51(a)(2) of this subchapter:

(A) the completed adaptive behavior screening assessment;

(B) the completed HHSC Related Conditions Eligibility Screening Instrument form; and

(3) send the completed HHSC CLASS/DBMD Nursing Assessment form described in subsection (h)(3)(A) of this section to the CMA.

(j) In accordance with §259.63(a)(1) of this division (relating to Determination by HHSC of Whether an Individual Meets LOC VIII Criteria), HHSC reviews the documentation described in subsection (i)(2) of this section.

(k) If a DSA receives written notice from HHSC in accordance with §259.63(c)(1) of this division that an individual meets the LOC VIII criteria, the DSA must notify the individual's CMA of HHSC's decision as soon as possible, but no later than one business day after receiving the notice from HHSC.

(l) If HHSC determines that an individual does not meet the LOC VIII criteria, HHSC sends written notice of the denial of the individual's request for enrollment into the CLASS Program:

(1) to the individual or LAR in accordance with §259.153(b) of this chapter (relating to Denial of a Request for Enrollment into the CLASS Program); and

(2) to the individual's DSA and CMA in accordance with §259.63(d) of this division.

(m) If a CMA receives notice from a DSA, as described in subsection (k) of this section, that HHSC determined that an individual meets the LOC VIII criteria, the case manager must:

(1) ensure that the service planning team meets in person or by videoconferencing to develop:

(A) a proposed enrollment IPC, a PAS/HAB plan, IPPs, and an HHSC IPP Addendum form for the individual in accordance with §259.65 of this division (relating to Development of an Enrollment IPC); and

(B) an individual transportation plan, if transportation as a habilitation activity or as an adaptive aid is included on the proposed enrollment IPC; and

(2) submit the documents described in paragraph (1) of this subsection to HHSC for review in accordance with §259.65 of this division.

(n) HHSC reviews a proposed enrollment IPC in accordance with §259.69 of this division (relating to HHSC's Review of a Proposed Enrollment IPC) to determine if:

(1) the proposed enrollment IPC has an IPC cost at or below the amount in §259.51(a)(4) of this subchapter; and

(2) the CLASS Program services and CFC services specified in the proposed enrollment IPC meet the requirements described in §259.65(a)(1)(E)(iii) or (iv) and §259.65(b) of this division.

(o) A CMA and DSA must not provide a CLASS Program service or CFC service to an individual before HHSC notifies the CMA, in accordance with §259.69(c)(1) of this division, that the individual's request for enrollment into the CLASS Program has been approved. If a CMA or DSA provides CLASS Program services or CFC services to an individual before the effective date of the individual's enrollment IPC authorized by HHSC, HHSC does not reimburse the CMA or DSA for those services.

(p) If HHSC notifies a CMA in accordance with §259.69(c)(1) of this division that an individual's request for enrollment is approved:

(1) the CMA must ensure the case manager complies with §259.69(c)(2) of this division; and

(2) the CMA and DSA must comply with §259.69(g) of this division.

(q) If HHSC notifies a CMA in accordance with §259.69(e) of this division that an individual's request for enrollment into the CLASS Program is approved, but action is being taken by HHSC to deny a CLASS Program service or CFC service and modify the proposed enrollment IPC:

(1) the CMA must comply with §259.69(f) of this division; and

(2) the CMA and DSA must comply with §259.69(g) of this division.

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 18, 2024.

TRD-202404903

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: December 1, 2024

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

DIVISION 3. REVIEWS

26 TAC §259.79

STATUTORY AUTHORITY

The amendment implements subsection (b-1) to §48.051 of the Texas Human Resources Code, as added by H.B. 4696, 88th Legislature, Regular Session, 2023.

§259.79.Renewal and Revision of an IPC.

(a) Beginning the effective date of an individual's IPC, as determined by §259.65(g) of this subchapter (relating to Development of an Enrollment IPC) or §259.77(b) of this division (relating to Renewal IPC and Requirement for Authorization to Continue Services), a case manager must, in accordance with the Community Living Assistance and Support Services Provider Manual:

(1) meet with the individual and LAR in person to conduct an IPP service review meeting at a time and place convenient to the individual and LAR; and

(2) at least once during an IPC period, conduct an IPP service review meeting in person with the individual and LAR in the individual's residence.

(b) During an IPP service review meeting described in subsection (a) of this section, a case manager must:

(1) review the individual's progress toward achieving the goals and outcomes as described on the IPP for each service listed on the individual's IPC;

(2) if the individual's IPC includes nursing or CFC PAS/HAB, and any of those services are not identified on the IPC as critical to meeting the individual's health and safety, discuss with the individual or LAR whether the service may now be critical to the individual's health and safety;

(3) if a service backup plan has been implemented, discuss the implementation of the service backup plan with the individual or LAR to determine whether or not the plan was effective;

(4) if the case manager determines that a service may now be critical to the individual's health and safety, as described in paragraph (2) of this subsection, or that the service backup plan was ineffective, as described in paragraph (3) of this subsection, document the determination for discussion at a service planning team meeting convened in accordance with subsection (c) or (d) of this section;

(5) complete the HHSC IPP Service Review form in accordance with the Community Living Assistance and Support Services Provider Manual; and

(6) ensure the individual or LAR signs and dates the HHSC IPP Service Review form.

(c) No more than 90 calendar days before the end of an individual's current IPC period, the case manager must convene a service planning team meeting in person or by videoconferencing in which:

(1) the service planning team:

(A) reviews the HHSC CLASS/DBMD Nursing Assessment form completed by an RN as described in §259.75(a)(1)(B) of this division (relating to Annual Review by HHSC of Whether an Individual Meets LOC VIII Criteria);

(B) addresses any information included in Addendum E of the HHSC CLASS/DBMD Nursing Assessment form, Recommendations/Coordination of Care, to ensure the individual's needs are met;

(C) documents on the HHSC CLASS/DBMD Coordination of Care form how the information in Addendum E of the HHSC CLASS/DBMD Nursing Assessment form was addressed;

(D) develops a proposed renewal IPC that:

(i) documents each CLASS Program service and CFC service, other than CFC support management, to be provided to the individual;

(ii) specifies the number of units of each CLASS Program service and CFC service, other than CFC support management, to be provided to the individual;

(iii) for each CLASS Program service:

(I) is within the service limit described in §259.73 of this subchapter (relating to Service Limits);

(II) if an adaptive aid, meets the requirements in Subchapter F, Division 1, of this chapter (relating to Adaptive Aids); and

(III) if a minor home modification, meets the requirements in Subchapter F, Division 2, of this chapter (relating to Minor Home Modifications);

(iv) for CFC ERS, meets the requirements in Subchapter F, Division 3, of this chapter (relating to CFC ERS);

(v) states if the individual will receive CFC support management;

(vi) describes any other service or support to be provided to the individual through sources other than CLASS Program services or CFC services;

(vii) if the proposed renewal IPC includes nursing or CFC PAS/HAB, identifies whether the service is critical to the individual's health and safety, as required by §259.89(a)(2) of this subchapter (relating to Service Backup Plans);

(viii) if the individual chooses to receive services through the CDS option, identifies:

(I) the name of the individual's FMSA; and

(II) the type and estimated units of each CLASS Program service and CFC service provided through the CDS option;

(E) develops a renewal IPP for each CLASS Program service and CFC service listed on the proposed renewal IPC, other than CFC support management, as required by §259.67 of this subchapter (relating to Development of IPPs);

(F) develops a new HHSC IPP Addendum form;

(G) develops a new PAS/HAB plan based on review of the information obtained from assessments conducted and observations made by a DSA as required by §259.61(h)(2) and (3) of this subchapter;

(H) if the proposed renewal IPC identifies nursing or CFC PAS/HAB as critical, develops or revises a service backup plan for the service in accordance with §259.89 of this subchapter; and

(I) if transportation as a habilitation activity or as an adaptive aid is included on the proposed renewal IPC, develops a new individual transportation plan;

(2) the case manager:

(A) provides an oral and written explanation of the following to an individual and LAR or actively involved person:

(i) CLASS Program services;

(ii) CFC services;

(iii) the mandatory participation requirements described in §259.103 of this chapter (relating to Mandatory Participation Requirements of an Individual);

(iv) the CDS option described in §259.71 of this subchapter (relating to CDS Option);

(v) the right to request a fair hearing in accordance with §259.101 of this chapter (relating to Individual's Right to a Fair Hearing);

(vii) the process by which the individual, LAR, or actively involved person may file a complaint regarding case management as described in §52.117 of this title [~~40 TAC §49.309~~ ] (relating to Complaint Process);

(viii) that the HHSC Office of the Ombudsman toll-free telephone number at 1-877-787-8999 may be used to file a complaint regarding the CMA;

(ix) voter registration, if the individual is 18 years of age or older; and

(x) how to contact the individual's case manager;

(B) provides an oral explanation to the individual and to the LAR or actively involved person that the individual, LAR, actively involved person may request:

(i) that the individual transfer to a different CMA, DSA, or FMSA at any time while enrolled in the CLASS Program;

(ii) that the DSA provide transportation as a habilitation activity, out-of-home respite in a camp described in §259.361(b)(2)(D) of this chapter (relating to Respite and Dental Treatment), adaptive aids, nursing, or CFC PAS/HAB while the individual is temporarily staying at a location outside the catchment area in which the individual resides but within the state of Texas for a period of no more than 60 consecutive days; and

(iii) that the DSA provide transportation as a habilitation activity, out-of-home respite in a camp, adaptive aids, nursing, or CFC PAS/HAB as described in clause (ii) of this subparagraph more than once during an IPC period;

(C) uses the HHSC Understanding Program Eligibility - CLASS/DBMD form to provide an oral and written explanation to the individual or LAR, and obtain the individual's or LAR's signature and date on the form, to acknowledge understanding of the following:

(i) the eligibility requirements for:

(I) CLASS Program services, as described in §259.51(a) of this subchapter (relating to Eligibility Criteria for CLASS Program Services and CFC Services);

(II) CFC services for to individuals who do not receive MAO Medicaid, as described in §259.51(b) of this subchapter; and

(III) CFC services for individuals who receive MAO Medicaid, as described in §259.51(c) of this subchapter; and

(ii) that CLASS Program services or CFC services may be terminated as described in §§259.161, 259.163, 259.165, and 259.167 of this chapter (relating to Termination of CLASS Program Services and CFC Services With Advance Notice for Reasons Other Than Non-compliance with Mandatory Participation Requirements; Termination of CLASS Program Services and CFC Services With Advance Notice Because of Non-compliance With Mandatory Participation Requirements; Termination of CLASS Program Services and CFC Services Without Advance Notice for Reasons Other Than Behavior Causing Immediate Jeopardy; and Termination of CLASS Program Services and CFC Services Without Advance Notice Because of Behavior Causing Immediate Jeopardy);

(D) gives the individual and the LAR or actively involved person a written list of CMAs and DSAs serving the catchment area in which the individual resides;

(E) has the individual or LAR select a CMA and DSA by completing an HHSC Selection Determination form as described in the Community Living Assistance and Support Services Provider Manual;

(F) educates the individual, LAR, and actively involved person about protecting the individual from abuse, neglect, and exploitation; and

(G) documents that the case manager complied with subparagraphs (A) - (F) of this paragraph; and

(3) a DSA staff person:

(A) provides an oral and written explanation of the following to the individual and LAR or actively involved person:

(iii) that the HHSC [~~Complaint and Incident Intake~~] toll-free telephone number at 1-800-458-9858 may be used to file a complaint; and

(iv) how to contact the DSA;

(B) educates the individual, LAR, and actively involved person about protecting the individual from abuse, neglect, and exploitation; and

(d) Except as provided in subsection (e) of this section, no later than five business days after becoming aware that an individual's need for a CLASS Program service or CFC service changes, the case manager must:

(1) convene a service planning team meeting in person or by videoconferencing in which the service planning team:

(A) develops a proposed revised IPC;

(B) if the proposed revised IPC includes nursing or CFC PAS/HAB:

(i) identifies whether the service is critical to the individual's health and safety, as required by §259.89(a)(2) of this subchapter; and

(ii) develops a new or revised service backup plan for the service in accordance with §259.89 of this subchapter;

(C) if the IPC is revised because the individual wants to receive a service through the CDS option, identifies on the proposed revised IPC:

(i) the name of the individual's FMSA; and

(ii) the type and estimated units of each CLASS Program service and CFC service the individual wants to receive through the CDS option;

(D) develops any revised IPPs;

(E) if the individual's needs have substantially changed, develops a revised HHSC IPP Addendum form;

(F) if the IPC needs to be revised to add CFC PAS/HAB or change the amount of CFC PAS/HAB, develops a new or revised PAS/HAB plan; and

(G) if transportation as a habilitation activity or as an adaptive aid is included on the proposed revised IPC, develops a new or revised individual transportation plan; and

(2) if the individual may need cognitive rehabilitation therapy, assist the individual to obtain an assessment as required by §259.311(h) of this chapter (relating to CMA Service Delivery).

(e) If an individual receiving CFC PAS/HAB or the LAR requests CFC support management during an IPC year, the case manager must revise the IPC, as described in the Community Living Assistance and Support Services Provider Manual.

(f) A case manager must:

(1) ensure that a proposed renewal IPC or proposed revised IPC developed in accordance with subsection (c) or (d) of this section meets the requirements described in §259.65(a)(1)(E)(iii) or (iv) and §259.65(b) of this subchapter; and

(2) ensure that a renewal IPP or revised IPP, developed in accordance with subsection (c) or (d) of this section, is reviewed, signed, and dated as evidence of agreement by:

(A) the individual or LAR;

(B) the case manager; and

(g) If an individual or LAR, case manager, and DSA agree on the type and amount of services to be included in a proposed renewal IPC or proposed revised IPC developed in accordance with subsection (c) or (d) of this section, the case manager must:

(1) ensure that the proposed renewal IPC or proposed revised IPC is reviewed, signed, and dated as evidence of agreement by:

(A) the individual or LAR;

(B) the case manager; and

(2) for a proposed renewal IPC, at least 30 calendar days before the end of the individual's IPC period:

(A) submit to HHSC for its review:

(i) the signed proposed renewal IPC;

(ii) the signed renewal IPPs;

(iii) the new HHSC IPP Addendum form;

(iv) the new PAS/HAB plan;

(v) the completed HHSC CLASS/DBMD Nursing Assessment form provided by the DSA in accordance with §259.75(a)(3) of this division;

(vi) the ID/RC Assessment authorized by HHSC;

(vii) the HHSC Non-Waiver Services form;

(viii) Choice Lists for the CLASS Program;

(ix) a service backup plan, if required by subsection (c)(1)(H) of this section;

(x) the new individual transportation plan, if required by subsection (c)(1)(I) of this section;

(xi) the HHSC Request for Adaptive Aids, Medical Supplies, Minor Home Modifications or Dental Services/Sedation form, if required by:

(I) §259.255 of this chapter (relating to Requirements for Authorization to Purchase an Adaptive Aid Costing Less Than $500);

(II) §259.257 of this chapter (relating to Requirements for Authorization to Purchase an Adaptive Aid Costing $500 or More);

(III) §259.275 of this chapter (relating to Requirements for Authorization to Purchase a Minor Home Modification); and

(IV) §259.361 of this chapter;

(xii) the HHSC Specifications for Adaptive Aids/Medical Supplies/Minor Home Modifications form, if required by:

(I) §259.257 of this chapter; and

(II) §259.275 of this chapter;

(xiii) denial documentation from non-waiver resources, if any; and

(xiv) if a skilled or a specialized therapy, the HHSC Therapy Justifications - Attachment to IPP form;

(B) send the DSA a copy of:

(i) the signed proposed renewal IPC;

(ii) the signed renewal IPPs;

(iii) the new HHSC IPP Addendum form;

(iv) the new PAS/HAB plan, if required by subsection (c)(1)(G) of this section;

(v) a service backup plan, if required by subsection (c)(1)(H) of this section; and

(vi) the new individual transportation plan, if required by subsection (c)(1)(I) of this section; and

(i) the signed proposed renewal IPC;

(ii) the signed renewal IPPs;

(iii) the new HHSC IPP Addendum form;

(iv) the new PAS/HAB plan, if required by subsection (c)(1)(G) of this section;

(v) a service backup plan, if required by subsection (c)(1)(H) of this section; and

(vi) the new individual transportation plan, if required by subsection (c)(1)(I) of this section; and

(3) for a proposed revised IPC, at least 30 calendar days before the effective date of the proposed revised IPC determined by the service planning team:

(A) submit to HHSC for its review:

(i) the signed proposed revised IPC;

(ii) the signed revised IPPs;

(iii) the revised HHSC IPP Addendum form, if required by subsection (d)(1)(E) of this section;

(iv) the HHSC Non-Waiver Services form;

(v) the completed HHSC CLASS/DBMD Nursing Assessment form;

(vi) a new or revised service backup plan, if required by subsection (d)(1)(B)(ii) of this section;

(vii) the new or revised PAS/HAB plan, if required by subsection (d)(1)(F) of this section;

(viii) the new or revised individual transportation plan, if required by subsection (d)(1)(G) of this section;

(ix) an HHSC Request for Adaptive Aids, Medical Supplies, Minor Home Modifications or Dental Services/Sedation form, if required by:

(I) §259.255 of this chapter;

(II) §259.257 of this chapter;

(III) §259.275 of this chapter; and

(IV) §259.361 of this chapter;

(x) an HHSC Specifications for Adaptive Aids/Medical Supplies/Minor Home Modifications form, if required by:

(I) §259.257 of this chapter; and

(II) §259.275 of this chapter;

(xi) denial documentation from non-waiver resources, if any; and

(xii) if a skilled or specialized therapy, the HHSC Therapy Justifications - Attachment to IPP form;

(B) send the DSA a copy of:

(i) the signed proposed revised IPC;

(ii) the signed revised IPPs;

(iii) the revised HHSC IPP Addendum form, if required by subsection (d)(1)(E) of this section;

(iv) the new or revised service backup plan, if required by subsection (d)(1)(B)(ii) of this section;

(v) the new or revised PAS/HAB plan, if required by subsection (d)(1)(F) of this section; and

(vi) the new or revised individual transportation plan, if required by subsection (d)(1)(G) of this section; and

(i) the signed proposed revised IPC;

(ii) the signed revised IPPs;

(iii) the revised HHSC IPP Addendum form, if required by subsection (d)(1)(E) of this section;

(iv) the new or revised service backup plan, if required by subsection (d)(1)(B)(ii) of this section;

(v) the new or revised PAS/HAB plan, if required by subsection (d)(1)(F) of this section; and

(vi) the new or revised individual transportation plan, if required by subsection (d)(1)(G) of this section.

(h) If an individual or LAR requests a CLASS Program service or a CFC service that the case manager or DSA has determined does not meet the requirements described in §259.65(a)(1)(E)(iii) or (iv) or §259.65(b) of this subchapter, the CMA must, in accordance with the Community Living Assistance and Support Services Provider Manual, send the individual or LAR written notice of the denial or proposed reduction of the requested CLASS Program service, copying the DSA and, if applicable, the FMSA.

(i) If a CMA is required to send a written notice of the denial or proposed reduction of a CLASS Program service or CFC service, as described in subsection (h) of this section, the CMA must:

(1) at least 30 calendar days before the end of the IPC period, submit to HHSC for its review:

(A) a proposed renewal IPC or proposed revised IPC that includes the type and amount of CLASS Program services or CFC services in dispute and not in dispute, and is signed and dated by:

(i) the individual or LAR;

(ii) the case manager; and

(iii) the DSA;

(B) the renewal IPPs;

(D) the new or revised PAS/HAB plan, if required by subsection (c)(1)(G) or (d)(1)(F) of this section; and

(E) the new or revised individual transportation plan, if required by subsection (c)(1)(I) or (d)(1)(G) of this section; and

(2) if the individual receives a service through the CDS option, send the FMSA a copy of the documents submitted to HHSC in accordance with paragraph (1) of this subsection.

(j) At HHSC's request, a CMA must submit additional documentation supporting a proposed renewal IPC or proposed revised IPC submitted to HHSC no later than 10 calendar days after the date of HHSC's request.

(k) If HHSC determines that a proposed renewal IPC or proposed revised IPC has an IPC cost at or below the amount in §259.51(a)(4) of this subchapter and the CLASS Program services and CFC services specified in the IPC meet the requirements described in §259.65(a)(1)(E)(iii) or (iv) and §259.65(b) of this subchapter:

(1) HHSC notifies the individual's CMA, in writing, that the renewal IPC or revised IPC is authorized;

(2) the CMA must send a copy of the authorized renewal or revised IPC to the DSA and, if the individual receives a service though the CDS option, to the FMSA; and

(3) the CMA and the DSA must:

(A) electronically access MESAV to determine if the information on the renewal or revised IPC is consistent with the information in MESAV;

(B) if the information on the renewal or revised IPC is inconsistent with the information in MESAV, notify HHSC of the inconsistency; and

(C) initiate CLASS Program services and CFC services for the individual in accordance with the individual's renewal or revised IPC no later than seven calendar days after the CMA receives HHSC's notification.

(l) If an individual's IPC period expires before HHSC approves a proposed renewal IPC:

(1) a CMA and DSA must continue to provide services to the individual until HHSC authorizes the proposed renewal IPC to ensure continuity of care and prevent the individual's health and welfare from being jeopardized; and

(2) if HHSC authorizes the proposed renewal IPC as described in subsection (k)(1) of this section, HHSC will reimburse the CMA and DSA for services provided, as required by paragraph (1) of this subsection, for a period of not more than 180 calendar days before the date HHSC receives the documentation described in subsection (i)(2) of this section from the DSA.

(m) The process by which an individual's CLASS Program services or CFC services are terminated or denied based on HHSC's review of a proposed renewal IPC or proposed revised IPC is described in §259.83(c) - (e) of this division (relating to Utilization Review of an IPC by HHSC).

(n) The IPC period of a revised IPC is the same IPC period as the enrollment IPC or renewal IPC being revised.

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 18, 2024.

TRD-202404904

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: December 1, 2024

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

SUBCHAPTER G. ADDITIONAL CMA REQUIREMENTS

26 TAC §259.309, §259.317

STATUTORY AUTHORITY

The amendments are authorized by Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies; Texas Government Code §531.033, which provides the Executive Commissioner of HHSC with broad rulemaking authority; and Texas Human Resources Code §32.021, which provides HHSC with the authority to administer the federal medical assistance program in Texas and to adopt rules and standards for program administration.

The amendments implement subsection (b-1) to §48.051 of the Texas Human Resources Code, as added by H.B. 4696, 88th Legislature, Regular Session, 2023.

§259.309.Training of CMA Staff Persons and Volunteers.

(a) A CMA must ensure that:

(1) a CMA staff person completes training as described in the Community Living Assistance and Support Services Provider Manual;

(2) a CMA staff person completes training on the CLASS Program and CFC, including the requirements of this chapter and the CLASS Program services and CFC services described in §259.7 of this chapter (relating to Description of the CLASS Program and CFC Option); and

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

(b) A CMA must:

(1) ensure that each CMA staff person and volunteer:

(A) is trained on and knowledgeable of:

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

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

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

(B) is instructed to report to HHSC [~~DFPS~~] immediately, but not later than 24 hours, after having knowledge or suspicion that an individual has been or is being abused, neglected, or exploited, by:

(i) calling the HHSC [~~DFPS Abuse Hotline~~] toll-free telephone number, 1-800-458-9858 [~~1-800-252-5400~~ ]; or

(ii) using the HHSC online Texas Unified Licensure Information Portal [~~DFPS Abuse Hotline website~~]; and

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

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

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

(3) document:

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

(B) the date the training was conducted; and

§259.317.CMA: Reporting Allegations of Abuse, Neglect, or Exploitation of an Individual.

If a CMA, staff person, volunteer, or controlling person of the CMA knows or suspects an individual is being or has been abused, neglected, or exploited, the CMA must report or ensure that the person with knowledge or suspicion reports the allegation of abuse, neglect, or exploitation to HHSC [~~DFPS~~] immediately, but not later than 24 hours after having knowledge or suspicion, by:

(1) calling the HHSC [~~DFPS Abuse Hotline~~] toll-free telephone number, 1-800-458-9858 [~~1-800-252-5400~~]; or

(2) using the HHSC online Texas Unified Licensure Information Portal [~~DFPS Abuse Hotline website~~].

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 18, 2024.

TRD-202404905

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: December 1, 2024

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

SUBCHAPTER H. ADDITIONAL DSA REQUIREMENTS

26 TAC §259.357, §259.369

STATUTORY AUTHORITY

The amendments implement subsection (b-1) to §48.051 of the Texas Human Resources Code, as added by H.B. 4696, 88th Legislature, Regular Session, 2023.

§259.357.Training of DSA Staff Persons, Service Providers, and Volunteers.

(a) A DSA must ensure that:

(1) a DSA staff person who has direct contact with an individual completes training described in the Community Living Assistance and Support Services Provider Manual; and

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

(b) A DSA must ensure that, before providing services to an individual:

(1) a service provider of transportation as a habilitation activity completes:

(A) two hours of orientation covering the following:

(i) an overview of related conditions; and

(ii) an explanation of commonly performed tasks regarding habilitation;

(B) training in cardiopulmonary resuscitation and choking prevention that includes an in-person evaluation by a qualified instructor of the service provider's ability to perform these actions; and

(C) training necessary to meet the needs and characteristics of the individual to whom the service provider is assigned, in accordance with the Community Living Assistance and Support Services Provider Manual, with training to occur in the individual's home with full participation from the individual, if possible; and

(2) a service provider of CFC PAS/HAB completes:

(A) two hours of orientation covering the following:

(i) an overview of related conditions; and

(ii) an explanation of commonly performed CFC PAS/HAB activities;

(B) training in cardiopulmonary resuscitation and choking prevention that includes an in-person evaluation by a qualified instructor of the service provider's ability to perform these actions; and

(C) training in the CFC PAS/HAB activities necessary to meet the needs and characteristics of the individual to whom the service provider is assigned, in accordance with the Community Living Assistance and Support Services Provider Manual, with training to occur in the individual's home with full participation from the individual, if possible.

(1) allow the individual or LAR to train a CFC PAS/HAB service provider in the specific assistance needed by the individual and to have the service provider perform CFC PAS/HAB in a manner that comports with the individual's personal, cultural, or religious preferences; and

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

(d) The supervisor of a service provider of transportation as a habilitation activity or CFC PAS/HAB must, in accordance with the Community Living Assistance and Support Services Provider Manual, evaluate the performance of the service provider, in person, to ensure the needs of the individual are being met. The evaluation must occur annually.

(e) A DSA must:

(1) ensure that each service provider, staff person, and volunteer of the DSA:

(A) is trained on and knowledgeable of:

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

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

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

(i) calling the HHSC [~~DFPS Abuse Hotline~~] toll-free telephone number, 1-800-458-9858 [~~1-800-252-5400~~]; or

(ii) using the HHSC online Texas Unified Licensure Information Portal [~~DFPS Abuse Hotline website~~]; and

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

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

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

(3) document:

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

(B) the date the training was conducted or completed; and

(C) except for the training described in subsection (a)(2) of this section, the name of the person who conducted the training.

§259.369.DSA: Reporting Allegations of Abuse, Neglect, or Exploitation of an Individual.

If a DSA, service provider, staff person, volunteer, or controlling person knows or suspects that an individual is being or has been abused, neglected, or exploited, the DSA must report or ensure that the person with knowledge or suspicion reports the allegation of abuse, neglect, or exploitation to HHSC [~~DFPS~~] immediately, but not later than 24 hours after having knowledge or suspicion, by:

(1) calling the HHSC [~~DFPS Abuse Hotline~~] toll-free telephone number, 1-800-458-9858 [~~1-800-252-5400~~]; or

(2) using the HHSC online Texas Unified Licensure Information Portal [~~DFPS Abuse Hotline website~~].

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 18, 2024.

TRD-202404906

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: December 1, 2024

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

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

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to Texas Administrative Code rules §260.61, concerning Process for Enrollment of an Individual; and §260.219, concerning Reporting Allegations of Abuse, Neglect, or Exploitation of an Individual.

BACKGROUND AND PURPOSE

A program provider in the Deaf Blind Multiple Disabilities (DBMD) Program must be licensed as a HCSSA. To comply with Section 48.501, these proposed amendments change the current DBMD Program abuse, neglect, or exploitation (ANE) reporting requirement from the Texas Department of Family and Protective Services (DFPS) to HHSC. Transferring the function relating to the intake of reports of ANE from DFPS to HHSC creates a more streamlined process because HHSC is currently responsible for investigating these reports in the DBMD Program.

Therefore, the proposed amendments to these rules remove all references to DFPS, the DFPS Abuse Hotline toll-free telephone number, and the DFPS Abuse Hotline website and replaces them with references to HHSC, the HHSC toll-free telephone number, and the HHSC online Texas Unified Licensure Information Portal. The proposed amendment to §260.61 updates a rule reference.

FISCAL NOTE

GOVERNMENT GROWTH IMPACT STATEMENT

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

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

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

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

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

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

(6) the proposed rules will 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

LOCAL EMPLOYMENT IMPACT

The proposed rules will not affect a local economy.

COSTS TO REGULATED PERSONS

PUBLIC BENEFIT AND COSTS

TAKINGS IMPACT ASSESSMENT

PUBLIC COMMENT

To be considered, comments must be submitted no later than 31 days after the date of this issue of the Texas Register. Comments must be (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered before 5:00 p.m. on the last working day of the comment period; or (3) emailed before midnight on the last day of the comment period. If the last day to submit comments falls on a holiday, comments must be postmarked, shipped, or emailed before midnight on the following business day to be accepted. When emailing comments, please indicate "Comments on Proposed Rule 24R073" in the subject line.

SUBCHAPTER B. ELIGIBILITY, ENROLLMENT, AND REVIEW

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

26 TAC §260.61

STATUTORY AUTHORITY

The amendment implements subsection (b-1) to §48.051 of the Texas Human Resources Code, as added by H.B. 4696, 88th Legislature, Regular Session, 2023.

§260.61.Process for Enrollment of an Individual.

(a) After HHSC notifies a program provider, as described in §260.55(d) of this division (relating to Written Offer of Enrollment in the DBMD Program), that an individual selected the program provider, the program provider must assign a case manager to the individual.

(b) A program provider must ensure that the assigned case manager contacts the individual or LAR by telephone, videoconferencing, or in person in the individual's residence as soon as possible but no later than five business days after the program provider receives the HHSC notification. During this initial contact, the case manager must:

(1) verify that the individual resides in a county for which the program provider has a contract;

(2) determine if the individual is currently enrolled in Medicaid;

(3) determine if the individual is currently enrolled in another waiver program or receiving a service that may not be received if the individual is enrolled in the DBMD Program, as identified in the Mutually Exclusive Services table in Appendix V of the Deaf Blind with Multiple Disabilities Program Manual available on the HHSC website; and

(4) schedule an initial in-person visit to be held in the individual's residence with the individual and LAR or actively involved person at a time convenient to the individual and LAR and no later than 30 calendar days after the program provider receives the HHSC notification.

(c) During an initial in-person visit in an individual's residence at a time convenient to the individual and LAR, a case manager:

(1) must provide an oral and written explanation to the individual or LAR:

(A) of the DBMD Program services described in §260.7(c) of this chapter (relating to Description of the DBMD Program and CFC), including TAS if the individual is receiving institutional services;

(B) of the CFC services described in §260.7(e) of this chapter;

(i) as described in §260.111 of this subchapter (relating to Individual's Right to a Fair Hearing); and

(ii) as described in §260.113 of this subchapter (relating to Mandatory Participation Requirements of an Individual);

(D) the process by which the individual, LAR, or actively involved person may file a complaint regarding a program provider as required by §52.117 of this title [~~40 TAC §49.309~~ ] (relating to Complaint Process);

(E) that the HHSC [~~Complaint and Incident Intake~~] toll-free telephone number at 1-800-458-9858 may be used to file a complaint regarding the program provider;

(F) of the CDS option described in §260.71 of this division (relating to CDS Option);

(G) of voter registration, if the individual is 18 years of age or older;

(H) of how to contact the program provider, the case manager, and the RN;

(I) that while the individual is staying at a location outside the contracted service delivery area but within the state of Texas for a period of no more than 60 consecutive days, the individual and LAR or actively involved person may request that the program provider provide:

(i) transportation as a residential habilitation activity, as described in §260.343(b)(1)(A)(ii)(I) of this chapter (relating to Day Habilitation, Residential Habilitation, and CFC PAS/HAB);

(ii) case management;

(iii) nursing;

(iv) out-of-home respite in a camp described in §260.353 of this chapter (relating to Respite);

(v) adaptive aids;

(vi) intervener services; or

(vii) CFC PAS/HAB;

(J) of the use of electronic visit verification, as required by 1 TAC Chapter 354, Subchapter O; and

(K) that the individual, LAR, or actively involved person may report an allegation of abuse, neglect, or exploitation to HHSC [~~DFPS~~] by calling the toll-free telephone number at 1-800-458-9858 [~~1-800-252-5400~~];

(2) must educate the individual, LAR, and actively involved person about protecting the individual from abuse, neglect, and exploitation;

(3) must use the HHSC Understanding Program Eligibility - CLASS/DBMD form to provide an oral and written explanation to the individual or LAR, and obtain the individual's or LAR's signature and date on the form, to acknowledge understanding of:

(A) the eligibility requirements for:

(i) DBMD Program services, as described in §260.51(a) of this subchapter (relating to Eligibility Criteria for DBMD Program Services and CFC Services);

(ii) CFC services for individuals who do not receive MAO Medicaid, as described in §260.51(b) of this subchapter; and

(iii) CFC services for individuals who receive MAO Medicaid, as described in §260.51(c) of this subchapter;

(B) the reasons DBMD Program services and CFC services may be suspended, as described in §260.85 of this chapter (relating to Suspension of DBMD Program Services and CFC Services); and

(C) the reasons DBMD Program services and CFC services may be terminated as described in §§260.89, 260.101, 260.103, and 260.105 of this chapter (relating to Termination of DBMD Program Services and CFC Services With Advance Notice Due to Ineligibility or Leave from the State, Termination of DBMD Program Services and CFC Services With Advance Notice Due to Non-compliance with Mandatory Participation Requirements, Termination of DBMD Program Services and CFC Services Without Advance Notice for Reasons Other Than Behavior Causing Immediate Jeopardy, and Termination of DBMD Program Services and CFC Services Without Advance Notice Due to Behavior Causing Immediate Jeopardy);

(4) must complete an ID/RC Assessment;

(5) must give the individual or LAR the HHSC Verification of Freedom of Choice form to document the individual's or LAR's choice regarding the DBMD Program or the ICF/IID Program;

(6) may complete an adaptive behavior screening assessment or ensure an appropriate professional described in the assessment instructions completes the adaptive behavior screening assessment;

(7) may complete a Related Conditions Eligibility Screening Instrument or ensure an RN completes a Related Conditions Eligibility Screening Instrument; and

(8) may ensure an RN completes a nursing assessment using the HHSC CLASS/DBMD Nursing Assessment form.

(d) If an assessment described in subsection (c)(6) - (8) of this section is not completed during the initial in-person visit in the individual's residence, a case manager must ensure that the assessment is completed in person as soon as possible but no later than 10 business days after the date of the initial in-person visit.

(e) If an individual is Medicaid eligible, is receiving institutional services, and anticipates needing TAS, a case manager must determine whether the individual meets the following criteria:

(1) the individual is being discharged from a nursing facility or an ICF/IID;

(2) the individual has not previously received TAS;

(3) the individual's proposed enrollment IPC will not include licensed assisted living or licensed home health assisted living; and

(4) the individual anticipates needing TAS.

(f) If a case manager determines that an individual meets the criteria described in subsection (e) of this section, the case manager must:

(1) provide the individual or LAR with a list of TAS providers in the service delivery area in which the individual will reside;

(2) complete, with the individual or LAR, the HHSC Transition Assistance Services (TAS) Assessment and Authorization form in accordance with the form's instructions, which includes:

(A) identifying the items and services as described in §272.5(e) of this title (relating to Service Description) that the individual needs;

(B) estimating the monetary amount for the items and services identified on the form, which must be within the service limit described in §272.5(d) of this title; and

(3) submit the completed form to HHSC for authorization;

(4) if HHSC authorizes the form, send the form to the TAS provider chosen by the individual or LAR; and

(5) include TAS and the monetary amount authorized by HHSC on the individual's proposed enrollment IPC.

(g) Before an individual enrolls in the DBMD Program, a case manager must inform the individual or LAR that the individual may reside in the individual's own home or family home or may receive a DBMD residential service described in §260.351 of this chapter (relating to Residential Services).

(h) A program provider must:

(1) gather and maintain the information necessary to process an individual's request for enrollment in the DBMD Program using forms prescribed by HHSC in the Deaf Blind with Multiple Disabilities Program Manual;

(2) assist an individual who does not have Medicaid financial eligibility or the individual's LAR to:

(A) complete an application for Medicaid financial eligibility; and

(B) submit the completed application to HHSC as soon as possible but no later than 30 calendar days after the case manager's initial in-person visit in the individual's residence;

(3) document in an individual's record any problems or barriers the individual or LAR encounters that may inhibit progress towards completing:

(A) the application for Medicaid financial eligibility; and

(B) enrollment in the DBMD Program; and

(4) assist the individual or LAR to overcome problems or barriers documented as described in paragraph (3) of this subsection.

(i) If an individual or LAR does not submit a completed Medicaid application to HHSC as described in subsection (h)(2)(B) of this section as a result of problems or barriers documented in accordance with subsection (h)(3) of this section, but is making progress in collecting the documentation necessary to complete the application, the program provider:

(1) may extend, in 30-calendar day increments, the time frame in which the application must be submitted to HHSC, except as provided in paragraph (2) of this subsection;

(2) must not grant an extension that results in a time period of more than 365 calendar days from the date of the case manager's initial in-person visit in the individual's residence;

(3) must ensure that the case manager documents the rationale for each extension in the individual's record; and

(4) must notify a DBMD program specialist, in writing, if the individual or LAR:

(A) does not submit a completed Medicaid application to HHSC no later than 365 calendar days after the date of the case manager's initial in-person visit in the individual's residence; or

(B) does not cooperate with the case manager in completing the enrollment process described in this section.

(j) A program provider must ensure that:

(1) the related conditions documented on the ID/RC Assessment for the individual are on the HHSC Approved Diagnostic Codes for Persons with Related Conditions list contained in the Deaf Blind with Multiple Disabilities Program Manual;

(2) the ID/RC Assessment is submitted to a physician for review; and

(3) if the individual or LAR requests dental services, other than an initial dental exam, a dentist completes the HHSC Prior Authorization for Dental Services form as required by §260.339 of this chapter (related to Dental Treatment).

(k) Not more than 10 business days after a program provider receives a signed and dated ID/RC Assessment from a physician establishing that an individual meets the requirements described in §260.51(a)(2) and (3) of this subchapter, the case manager must:

(1) convene a service planning team meeting; and

(2) ensure that the individual's service planning team:

(A) reviews the HHSC CLASS/DBMD Nursing Assessment form completed by an RN;

(B) reviews Addendum E of the HHSC CLASS/DBMD Nursing Assessment form, Recommendations/Coordination of Care, to address any information included in Addendum E to ensure the individual's needs are met;

(D) reviews the completed ID/RC assessment signed and dated by a physician;

(E) reviews the adaptive behavior screening assessment;

(F) reviews the HHSC Related Conditions Eligibility Screening Instrument form;

(G) reviews the completed HHSC Prior Authorization for Dental Services form, if required by §260.339 of this chapter;

(H) completes an enrollment IPP in accordance with §260.65 of this division (relating to Development of an Enrollment IPP);

(I) completes a proposed enrollment IPC in accordance with §260.67 of this division (relating to Development of a Proposed Enrollment IPC); and

(J) if the enrollment IPP and the proposed enrollment IPC include:

(i) transportation provided as a residential habilitation activity or as an adaptive aid, develops an individual transportation plan; or

(ii) nursing, intervener services, or CFC PAS/HAB, develops a service backup plan if required by §260.213 of this chapter (relating to Service Backup Plans).

(l) As soon as possible but no later than 10 business days after an individual's service planning team completes an individual's enrollment IPP and proposed enrollment IPC, as described in subsection (k)(2) of this section, the case manager must:

(1) submit the following documents, completed according to form instructions, to HHSC for review:

(A) the proposed enrollment IPC;

(B) the ID/RC Assessment signed by a physician;

(D) the PAS/HAB plan;

(E) the adaptive behavior screening assessment;

(F) the HHSC Related Conditions Eligibility Screening Instrument form;

(G) the HHSC DBMD Summary of Services Delivered form that documents pre-assessment services with supporting documentation;

(H) the HHSC Verification of Freedom of Choice form;

(I) the HHSC Non-Waiver Services form;

(J) the HHSC Documentation of Provider Choice form;

(K) the HHSC CLASS/DBMD Nursing Assessment form;

(L) the HHSC Prior Authorization for Dental Services form, if required by §260.339 of this chapter;

(M) the HHSC Rationale for Adaptive Aids, Medical Supplies, and Minor Home Modifications form, if required by:

(i) §260.303 of this chapter (relating to Requirements for [~~For~~] Authorization to Purchase or Lease an Adaptive Aid);

(ii) §260.317 of this chapter (relating to Requesting Authorization to Purchase a Minor Home Modification that Costs Less than $1,000); or

(iii) §260.319 of this chapter (relating to Requesting Authorization to Purchase a Minor Home Modification that Costs $1,000 or More);

(N) the HHSC Provider Agency Model Service Backup Plan form, if required by §260.213 of this chapter;

(O) the HHSC Specialized Nursing Certification form, if required by §260.347 of this chapter (relating to Nursing);

(P) if a non-waiver resource is identified on the HHSC Non-Waiver Services form:

(i) documentation to demonstrate that a service comparable to a DBMD Program service available from the non-waiver resource has been exhausted; or

(ii) documentation to explain why a service comparable to a DBMD Program service offered by the non-waiver resource is not provided to the individual by the non-waiver resource;

(Q) the HHSC Transition Assistance Services (TAS) Assessment and Authorization form, if required by subsection (f)(2) of this section; and

(R) the individual transportation plan, if required by subsection (k)(2)(J)(i) of this section; and

(2) if the individual will receive a service through the CDS option, send a copy of the proposed enrollment IPC, the enrollment IPP, and, if completed, the individual transportation plan to the FMSA.

(m) No later than five business days after receiving a written notice from HHSC approving or denying an individual's request for enrollment, the program provider must notify the individual or LAR of HHSC's decision. If HHSC:

(1) approves the request for enrollment, the program provider must initiate DBMD Program services and CFC services as described on the IPC; or

(2) denies the request for enrollment, the program provider must send the individual or LAR a copy of HHSC's written notice of denial.

(n) A program provider must not provide a DBMD Program service or CFC service to an individual before HHSC notifies the program provider, in accordance with §260.69(d)(1) of this division (relating to HHSC's Review of Request for Enrollment), that the individual's request for enrollment into the DBMD Program has been approved. If a program provider provides a DBMD Program service or CFC service to an individual before the effective date of the individual's enrollment IPC authorized by HHSC, HHSC does not reimburse the program provider for those services.

(o) If HHSC notifies a program provider that an individual's request for enrollment is approved, the case manager must comply with §260.69(d)(2) of this subchapter.

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 18, 2024.

TRD-202404907

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: December 1, 2024

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

SUBCHAPTER D. ADDITIONAL PROGRAM PROVIDER PROVISIONS

26 TAC §260.219

STATUTORY AUTHORITY

The amendment implements subsection (b-1) to §48.051 of the Texas Human Resources Code, as added by H.B. 4696, 88th Legislature, Regular Session, 2023.

§260.219.Reporting Allegations of Abuse, Neglect, or Exploitation of an Individual.

If a program provider, service provider, staff person, volunteer, or controlling person knows or suspects that an individual is being or has been abused, neglected, or exploited, the program provider must report or ensure that the person with knowledge or suspicion reports the allegation of abuse, neglect, or exploitation:

(1) for an individual receiving licensed assisted living, in accordance with Chapter 553 of this title (relating to Licensing Standards for Assisted Living Facilities); or

(2) for an individual who is not receiving licensed assisted living, to HHSC [~~DFPS~~] immediately, but not later than 24 hours, after having knowledge or suspicion by:

(A) calling the HHSC [~~DFPS~~] Abuse Hotline toll-free telephone number, 1-800-458-9858 [~~1-800-252-5400~~]; or

(B) using the HHSC online Texas Unified Licensure Information Portal [~~DFPS Abuse Hotline website~~].

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 18, 2024.

TRD-202404908

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: December 1, 2024

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

CHAPTER 364. PRIMARY HEALTH CARE SERVICES PROGRAM

SUBCHAPTER D. CLEARINGHOUSE FOR PRIMARY CARE PROVIDERS SEEKING COLLABORATIVE PRACTICE

26 TAC §§364.51, 364.53, 364.55, 364.57

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes the repeal of Subchapter D, concerning Clearinghouse for Primary Care Providers Seeking Collaborative Practice consisting of §364.51, concerning Purpose and Authority; §364.53, concerning Definitions; §364.55, concerning Provider Registration; and §364.57, concerning Duties of the Department.

BACKGROUND AND PURPOSE

The purpose of the proposal is to remove rules which are no longer necessary. These rules applied to a Department of State Health Services (DSHS) program regarding a clearinghouse for primary care providers seeking collaborative practice. Texas Health and Safety Code §105.007, which covered the clearinghouse, was repealed by Senate Bill 970, 87th Legislature, Regular Session, 2021. Because this statute was repealed, these rules are no longer needed. Removing unnecessary and outdated rules will increase clarity in the Texas Administrative Code (TAC).

SECTION-BY-SECTION SUMMARY

The proposed repeal of §364.51, §364.53, §364.55, and §364.57 deletes obsolete rules in 26 TAC, Part 1, Chapter 364, Subchapter D.

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, HHSC Chief Financial Officer, has also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities. The repeals 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 repeals will not affect a local economy.

COSTS TO REGULATED PERSONS

Texas Government Code §2001.0045 does not apply to these rules because the repeals 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 rule.

PUBLIC BENEFIT AND COSTS

Crystal Starkey, Deputy Executive Commissioner for Family Health Services, has determined that for each year of the first five years the repeals are in effect, the public benefit will be removal of unnecessary rules from the Texas Administrative Code.

Trey Wood has also determined that for the first five years the repeals are in effect, there are no anticipated economic costs to persons who are required to comply with the proposed repeals because the repeal does not change any current requirements.

TAKINGS IMPACT ASSESSMENT

PUBLIC COMMENT

STATUTORY AUTHORITY

The repeals are authorized by Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Senate Bill 970 (87th Legislature, Regular Session, 2021), which repealed Texas Health and Safety Code §105.007, the corresponding statutory authority for 26 TAC, Part 1, Chapter 364, Subchapter D.

The repeals affect Texas Government Code §531.0055.

§364.51.Purpose and Authority.

§364.53.Definitions.

§364.55.Provider Registration.

§364.57.Duties of the Department.

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-202404897

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: December 1, 2024

For further information, please call: (737) 867-7585